State of Louisiana v. Adam R. Herpin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
13-295

STATE OF LOUISIANA

VERSUS

ADAM HERPIN

************

APPEAL FROM THE
KAPLAN CITY COURT
PARISH OF VERMILION, NO. ST-11-059
HONORABLE FRANK E. LEMOINE, JUDGE

************

J. DAVID PAINTER JUDGE

************

Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.
AFFIRMED.

Barry J. Sallinger
Attorney at Law
P.O. Box 2433
Lafayette, LA 70502
COUNSEL FOR DEFENDANT-APPELLANT:
Adam Herpin

Michael Harson, District Attorney
Aimee F. Hebert, Assistant District Attorney
100 N. State St., Ste. 215
Abbeville, LA 70510
COUNSEL FOR APPELLEE:
State of Louisiana

PAINTER, Judge.

Adam Herpin appeals the judgment of the Kaplan City Court denying his

Motion and Order to Set Conviction Aside, Dismiss Prosecution and Expunge

Records. For the following reasons, we affirm.

FACTS

Herpin was charge with first offense operating a vehicle under the influence

of alcoholic beverages on February 23, 2011. On July 21, 2011, he entered a plea

of no contest to the charge. On September 20, 2012, Herpin filed the above

referenced motion. A hearing was held on October 18, 2012, and the motion was

denied on November 15, 2012. Herpin appeals.

DISCUSSION

The trial court found that Herpin’s application for expungement was

premature. Both at the trial court level and on appeal, Herpin asserts that La.Code

Crim.P. art. 894 and La.R.S. 44:9(A)(1) apply to allow his conviction to be set

aside and expunged.

Louisiana Code of Criminal Procedure Article 894 provides for setting aside

a conviction, in pertinent part, as follows:

A. (1) Notwithstanding any other provision of this Article to the
contrary, when a defendant has been convicted of a misdemeanor,
except criminal neglect of family, or stalking, the court may suspend
the imposition or the execution of the whole or any part of the
sentence imposed, provided suspension is not prohibited by law, and
place the defendant on unsupervised probation or probation
supervised by a probation office, agency, or officer designated by the
court, other than the division of probation and parole of the
Department of Public Safety and Corrections, upon such conditions as
the court may fix. Such suspension of sentence and probation shall be
for a period of two years or such shorter period as the court may
specify.

....

B. (1) When the imposition of sentence has been deferred by the
court, as authorized by this Article, and the court finds at the

1

conclusion of the period of deferral that the defendant has not been
convicted of any other offense during the period of the deferred
sentence, and that no criminal charge is pending against him, the court
may set the conviction aside and dismiss the prosecution. However,
prior to setting aside any conviction and dismissing the prosecution
for any charge for operating a vehicle while intoxicated, the court
shall require proof in the form of a certified letter from the
Department of Public Safety and Corrections, office of motor
vehicles, that the requirements of Paragraph A(5) of this Article have
been complied with.

The record herein indicates that Herpin’s conviction was set aside and

dismissed on July 21, 2011.

Louisiana Revised Statutes 44:9(A)(1) provides that:

A. (1) Any person who has been arrested for the violation of a
municipal or parish ordinance or for violation of a state statute which
is classified as a misdemeanor may make a written motion to the
district, parish, or city court in which the violation was prosecuted or
to the district court located in the parish in which he was arrested, for
expungement of the arrest record, under either of the following
conditions:

(a) The time limitation for the institution of prosecution on the
offense has expired, and no prosecution has been instituted; or

(b) If prosecution has been instituted, and such proceedings
have been finally disposed of by dismissal, sustaining of a motion to
quash, or acquittal.

This provision, according to its clear language, applies when a person has

been arrested for a misdemeanor and when the prosecution has not been timely

instituted or when it was disposed of by dismissal, a successful motion to quash, or

acquittal. It does not apply where, as here, the defendant was convicted of the

offense but the conviction was dismissed in accordance with the special provisions

of La.Code Crim.P. art. 894 B.(1).

The trial court correctly found that where a conviction has been obtained,

La.R.S. 44:9(A)(5) applied to prevent expungement until five years have passed

form the time of the completion of sentence and the filing of the motion to

expunge. That section of the statute provides that:

2

(5)(a) Any person who has been convicted for the violation of a
municipal or parish ordinance, a traffic violation, or for violation of a
state statute which is classified as a misdemeanor may make a written
motion to the district, parish, or city court in which the violation was
prosecuted or to the district court located in the parish in which he
was arrested, for expungement of the arrest record if five or more
years has elapsed between the date of the motion and the successful
completion of any sentence, deferred adjudication, or period of
probation or parole. Notwithstanding the provisions of Code of
Criminal Procedure Article 892.1 or 894, or any other provision of
law to the contrary regarding the set aside of a conviction or the
dismissal of a prosecution, an expungement shall occur only once
with respect to any person during a five-year period, except in the
case of a misdemeanor offense of operating a vehicle while
intoxicated which may occur only once with respect to any person
during a ten-year period.

The record reflects that only fourteen months passed between

completion of the sentence and the filing of the motion to expunge.

Therefore, we find that the trial court correctly denied the motion for

expungement as premature.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Defendant-Appellant, Adam Herpin.

AFFIRMED.

3