Smith v. State of Utah

----ooOoo----

Charles Smith,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010852-CA

F I L E D
May 2, 2002 2002 UT App 146 -----

Eighth District, Duchesne Department
The Honorable A. Lynn Payne

Attorneys:
Charles Smith, Glendale, Arizona, Appellant Pro Se
Herbert W. Gillespie, Duchesne, for Appellee -----

Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This case is before the court on its own motion for summary reversal. Smith filed a petition for expungement and an accompanying certificate of eligibility. The trial court scheduled a hearing on the matter and requested a report from the agency which supervised probation on Smith's 1990 conviction for child abuse, a class A misdemeanor. Smith requested a telephonic hearing because he lives out of state and could not attend due to "work constraints and financial restraints." At the hearing, the trial court granted the State's request to dismiss due to Smith's nonappearance, noting that "it is Mr. Smith's burden."

The trial court exceeded its jurisdiction in dismissing the expungement petition based solely on Smith's nonappearance. The trial court was incorrect in concluding that Smith bore the burden at the hearing. Utah Code Ann. § 78-18-13(2) (Supp. 1999) indicates that once a petitioner has filed a certificate of eligibility and the court schedules a hearing, the court shall issue a certificate to the petitioner stating the court's finding that the petition and certificate of eligibility are sufficient and that the statutory requirements have been satisfied "unless there is clear and convincing evidence to persuade the court that it would be contrary to the interest of the public to grant the requested expungement." Id. Once petitioner has produced a certificate of eligibility, the burden is on the party opposing the expungement to demonstrate that granting the expungement would be contrary to the public interest. The State failed to meet its burden.

This court summarily reverses the trial court's dismissal of the petition for expungement. The case is remanded for the trial court to hold a hearing and apply the correct burden of proof, pursuant to Utah Code Ann. § 78-18-13, on the issue of whether granting the expungement would be contrary to the public interest.(1)
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Smith's attendance is not a condition to the court's consideration of his expungement. However, if he chooses not to attend, he runs the risk that the State will make the required showing, which he, being absent, will be wholly unable to rebut.