State v. Deitz

WALTERS, Chief Judge,

dissenting.

I respectfully must dissent. The ex-pungement statute, I.C. § 19-2604, permits the court, upon application of the defendant and a showing of successful compliance with the terms and conditions of probation, to set aside the plea of guilty or conviction and dismiss the case and discharge the defendant. An order withholding judgment is a de facto judgment of conviction. State v. Wagenius, 99 Idaho 273, 278, 581 P.2d 319, 322 (1978). Where a judgment has been vacated, it is a nullity, and the effect is as if it had never been rendered at all. State v. Barwick, 94 Idaho 139, 143, 483 P.2d 670, 674 (1971). Where the court sets aside a conviction and dismisses the charge pursuant to I.C. § 19-2604, the conviction is “erased” and becomes “non-existent.” Manners v. State Bd. of Veterinary Medicine, 107 Idaho 950, 952, 694 P.2d 1298, 1300 (1985).

As I read I.C. § 18-8005(4), there must be a judgment or withheld judgment, predicated upon a plea of guilty or a finding of guilt, in existence at the time a defendant is charged as a repeat offender, inasmuch as the statute uses the words “notwithstanding the form of the judgments) or withheld judgments)” as operative language to give effect to the plea or finding of guilt. If the judgment or withheld judgment has been expunged and the underlying charge against the defendant has been dismissed, a subsequent charge simply does not fit within the wording of that statute.

In my view, I.C. § 18-8005(4) is ambiguous, and — in light of the leniency policy afforded by I.C. § 19-2604 — should be construed narrowly in favor of the defendant. State v. Thompson, 101 Idaho 430, 614 P.2d 970 (1980); State v. Nab, 112 Idaho 1139, 739 P.2d 438 (Ct.App.1987). Accordingly, the decisions below should be reversed.