Gerber v. State, 02A03-0902-CR-73
3rd Dist., 08-28-09, Ind.App.
Attorney: Donald C. Swanson
Holding: Trial court erred by treating the running of the statute of limitations period as a prerequisite to petitioning for expungement. Court rejected State’s argument that, for cases in which no charges are filed, person should wait a reasonable time after being arrested to file a petition for expungement and limitations period constitutes a reasonable time. This position has no support in text of expungement statute, and would “effectively prevent anyone arrested for a Class A felony of murder from petitioning for expungement when no charges are filed because a prosecution for those offenses may be commenced at any time.
Here, State did not file notice of opposition to Gerber’s petition for expungement, and trial court thus had discretion to summarily deny the petition only if it found the petition “insufficient.” I.C. 35-38-5-1(d)(3)(A). Although meaning of the term “insufficient” remains unclear, trial court has discretion on remand to either: 1) summarily grant the petition; 2) set matter for hearing; or 3) summarily deny the petition after finding it insufficient. Because prosecutor did not file a notice of opposition, trial court should not have permitted prosecutor to file a brief opposing Gerbers’ petition and “such participation should not be permitted on remand.” Held, judgment reversed and remanded; Baker, C.J., concurring in part and dissenting in part, believes that on remand, trial court has no authority to summarily deny Gerber’s petition. Barnes, J. concurring in result in part and dissenting in part, would permit participation by prosecutor on remand.
I have a question regarding “Expungement”. I am doing research for a migrant worker who was charged with Vehicular Involuntary Manslaughter and served 6 months in the State of Indiana. This is a non alcohol-drug induced incident. The driver of the vehicle charged lost control of the vehicle after hitting a pothole on a state highway and struck an oncoming motorcycle, killing the driver and injuring the passenger. The individual charged has served out the probationary period and is seeking to expunge the matter or having the Felony reduced to a Misdemeanor. It is my understanding that in order to qualify for an expungement, the charged must not serve time in jail or served under probationary supervision. Please advise.
Antonio Fernandez