Opinion
Docket No. 215370.
Submitted December 8, 1999, at Detroit.
Decided January 28, 2000, at 9:05 a.m.
Appeal from Oakland Circuit Court, Michigan, LC No. 87-079886 FH.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Daniel L. Lemisch, Chief, Appellate Division, and Anica Letica, Assistant Prosecuting Attorney, for the people.
Before: White, P.J., and Sawyer and Griffin, JJ.
The prosecution appeals as of right the trial court's order setting aside defendant's conviction pursuant to MCL 780.621; MSA 28.1274(101). We reverse and remand.
On June 1, 1987, defendant pleaded guilty of larceny in a vacant building, MCL 750.359; MSA 28.591, and assault and battery, MCL 750.81; MSA 28.276. After serving her court-ordered term of three years' probation, on June 10, 1998, defendant filed an application to set aside her convictions, stating that she had been convicted of "Larceny in Vacant Building, Assault Battery." The prosecution and the Attorney General opposed the application, arguing that MCL 780.621(1); MSA 28.1274(101)(1) precluded expungement of both or either conviction because defendant had been convicted of more than one offense. The trial court entered an order setting aside one of defendant's convictions, apparently reasoning that MCL 780.621; MSA 28.1274(101) did not preclude expungement of one conviction if an applicant's second conviction was a misdemeanor conviction. The trial court denied the prosecution's motion for reconsideration under similar reasoning.
Defendant was charged with larceny in a building, MCL 750.360; MSA 28.592, and assault and battery, MCL 750.81; MSA 28.276.
Defendant's original two-year term of probation was extended to allow her additional time to pay court-ordered costs.
The order does not specify which of defendant's two convictions the trial court set aside.
The trial court erroneously believed that only the conviction of assault and battery, MCL 750.81; MSA 28.276, was a misdemeanor conviction. In fact, defendant's conviction of larceny in a vacant building, MCL 750.359; MSA 28.591, was also a misdemeanor conviction.
On appeal, the prosecution argues that the trial court erred in setting aside defendant's conviction because MCL 780.621(1); MSA 28.1274(101)(1) expressly precludes such relief when an applicant has been convicted of more than one offense. The prosecution claims that MCL 780.621(1); MSA 28.1274(101)(1) applies equally to felonies and misdemeanors. We agree that the trial court erred in setting aside defendant's conviction despite the fact that defendant had been convicted of a second misdemeanor offense. Statutory interpretation is a question of law, which is reviewed de novo on appeal. People v Webb, 458 Mich. 265, 274; 580 N.W.2d 884 (1998).
MCL 780.621(1); MSA 28.1274(101)(1) provides:
Except as provided in subsection (2), a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction.
A panel of this Court interpreted the meaning of the act's "not more than 1 offense" language in People v McCullough, 221 Mich. App. 253; 561 N.W.2d 114 (1997). In doing so, it expressed that the purpose of the act is to allow one-time offenders to expunge their criminal record. Id. at 256. The panel held that only those applicants whose records are blemished by "a single conviction for a single crime (crime being synonymous with offense) committed on a single occasion meet the threshold requirement and are eligible for expungement." Id. at 257. The act does not provide that the term "offense" is limited to felonies. Given the purpose of the act and the broad use of the term "offense," we conclude that the act's language precluding relief if an applicant has been convicted of more than one offense applies to both felonies and misdemeanors. People v Dudas, 134 Mich. App. 66; 350 N.W.2d 834 (1984). Consequently, the trial court erred in setting aside defendant's conviction. If special consideration under MCL 780.621; MSA 28.1274(101) is to be given to applicants who have been convicted of misdemeanors, it is up to the Legislature to provide such relief. See McCullough, supra at 257-258. Accordingly, the trial court abused its discretion in setting aside defendant's conviction.
Reversed and remanded. We do not retain jurisdiction.