People v Barr - Can a Set Aside Record Be Used When Determining Sentencing of New Crimes?

State v. Barr
Arizona Court of Appeals, Division One, Department B
January 29, 2008

Holding: Pursuant to Arizona Revised Statute section 13-907, a defendant’s previously set aside record of conviction may be used for subsequent prosecution or sentencing.

Why This Case is Important: A set aside pursuant to section 13-907 will allow a defendant to take advantage of many opportunities. However, a set aside does not completely erase a defendant’s conviction. Indeed, section 13-907 states that a conviction that has been set aside may be used for subsequent prosecution and by the department of transportation. As a result, a trial court may take a defendant’s previous conviction into account during sentencing, even if the conviction has been set aside.

Such a result arises from the construction and intent of section 13-907. Courts have found that the language of section 13-907 is clear and unambiguous. Because of its clarity, a court will strictly abide by the intent of the statute. The language of section 13-907 makes it clear that the legislature intended for set aside convictions to be used in subsequent prosecutions.

Facts of This Case: The defendant in this case was convicted by a jury of child molestation, furnishing harmful items to a minor, and 121 counts of sexual exploitation of a minor. During sentencing, the trial court considered the defendant’s previous conviction as an aggravating factor. The defendant filed an appeal, claiming that the conviction should not be used as an aggravating factor because it had been set aside pursuant to section 13-907.

The Arizona Court of Appeals determined that the trial court did not abuse its discretion in considering the set aside conviction as an aggravating factor for sentencing. The court of appeals stated that the statute allowed the use of prior convictions for subsequent prosecutions. (A.R.S. 13-907 states in relevant part that “except that the conviction may be used as a conviction if such conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by state or any of its subdivisions for any offense.”) The court of appeals held that the statute was clear and unambiguous and that the clear meaning of the statute was specifically intended to apply to the defendant’s circumstances. As a result, the court of appeals affirmed the trial court’s sentence upon the defendant.

Key Language: The statute provides that if the application is granted, the judge shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released rom all penalties and disabilities resulting from the conviction other than those impose by the department of transportation, except that the conviction may be used as a conviction if such conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by the state or any of its subdivisions for any offense or used by the department of transportation.

Expert Advise: “Those who obtain relief pursuant to A.R.S. 13-907 must be aware that their convictions are not completely erased. As demonstrated in this case, this is extremely important when it comes to the consequences of a subsequent conviction. The limitations of relief placed on section 13-907 arise from the overarching interest to protect the public. However, a defendant still stands to greatly benefit from the relief granted by the statute.” Attorney Mathew Higbee

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