                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




              Wakefield v. Department of State Police, 2013 IL App (5th) 120303




Appellate Court            WAYNE WAKEFIELD, Plaintiff-Appellee, v. THE DEPARTMENT OF
Caption                    STATE POLICE, Defendant-Appellant (Lawrence County State’s
                           Attorney Patrick Hahn, Defendant).



District & No.             Fifth District
                           Docket No. 5-12-0303


Filed                      August 26, 2013


Held                       The trial court’s judgment denying the 2012 petition of the Department
(Note: This syllabus       of State Police to vacate the 2007 circuit court order expunging
constitutes no part of     defendant’s 1997 conviction for domestic battery was reversed along with
the opinion of the court   the order of expungement, since nothing in the Criminal Identification
but has been prepared      Act provided for the expungement of a conviction when conditional
by the Reporter of         discharge is imposed, and the expungement order was void and could be
Decisions for the          attacked at any time.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lawrence County, No. 05-MR-75; the
Review                     Hon. Robert M. Hopkins, Judge, presiding.



Judgment                   Reversed; order vacated.
Counsel on                 Lisa Madigan, Attorney General, of Chicago (Michael Scodro, Solicitor
Appeal                     General, and Brett E. Legner and John P. Schmidt, Assistant Attorneys
                           General, of counsel), for appellant.

                           James M. Neal, of Lawrenceville, for appellee.


Panel                      JUSTICE CATES delivered the judgment of the court, with opinion.
                           Justices Stewart and Wexstten concurred in the judgment and opinion.




                                            OPINION

¶1          The plaintiff, Wayne Wakefield (Wakefield), petitioned for an order requiring the
        defendant, the Illinois Department of State Police (State Police), to expunge his 1997
        conviction for domestic battery from his record. The circuit court of Lawrence County
        granted Wakefield’s request and ordered that the conviction be expunged. The State Police
        moved to vacate the expungement order under section 2-1401(f) of the Code of Civil
        Procedure (735 ILCS 5/2-1401(f) (West 2012)). The State Police asserted that the circuit
        court’s order was void because the court lacked authority under the Criminal Identification
        Act (20 ILCS 2630/5 (West 2006)) to order that Wakefield’s domestic battery conviction be
        expunged. The court denied the State Police’s motion to vacate after concluding that the
        motion was barred by the passage of time. The State Police appeals, arguing that the motion
        to vacate was timely because it was challenging a void order and, therefore, could be brought
        at any time. The State Police further contends that the circuit court lacked the authority to
        order Wakefield’s domestic battery conviction be expunged under the Criminal Identification
        Act and lacked jurisdiction to expunge arrest records in general outside of certain narrow
        statutory confines. We reverse.
¶2          The plaintiff originally applied to the State Police for a firearm owner’s identification
        card (FOID card), but his application was denied because of a 1997 domestic battery
        conviction. He subsequently petitioned for an order requiring the State Police to issue him
        a FOID card. In 2006, the circuit court granted the petition. The State Police complied with
        the order by issuing the plaintiff a FOID card which stated that he was prohibited from
        possessing firearms or ammunition under federal law. In accordance with the federal Gun
        Control Act of 1968, an individual who has been convicted of a misdemeanor crime of
        domestic violence may not possess a firearm. 18 U.S.C. § 922(g)(9) (2006). A person is not
        considered to be convicted of a misdemeanor crime of domestic violence if the conviction
        has been expunged or set aside, the person has been pardoned, or the person has had his or
        her civil rights restored. 18 U.S.C. § 921(a)(33)(B)(ii) (2006). The plaintiff contacted the
        federal Bureau of Alcohol, Tobacco, Firearms, and Explosives and was informed that

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     expungement of his domestic battery conviction was required for him to be eligible to
     possess a gun under federal law. The plaintiff then petitioned the circuit court to have the
     domestic battery conviction expunged from his record. On March 23, 2007, the circuit court
     granted his request. The State Police, however, did not receive the expungement order until
     October 25, 2011. On January 13, 2012, the State Police moved to vacate the expungement
     order under section 2-1401(f) of the Code of Civil Procedure, claiming that the order was
     void because the circuit court lacked authority to order the expungement. The circuit court
     denied the State Police’s motion to vacate, holding that it was “barred by the passage of
     time.” The State Police filed a motion to reconsider arguing that the expungement order was
     void and therefore the motion could not have been untimely. The court denied the motion to
     reconsider as well. It is from the denial of these motions that the State Police now appeals
     to our court.
¶3       Given that the circuit court denied the State Police’s section 2-1401 petition on the
     pleadings without holding an evidentiary hearing, we are presented with a question of law
     which we review de novo. See People v. Vincent, 226 Ill. 2d 1, 14-15, 871 N.E.2d 17, 27
     (2007). Additionally, where relief is sought from a void order pursuant to section 2-1401(f),
     the court does not exercise its discretion or apply equitable principles in determining whether
     to grant relief. See People v. Hubbard, 2012 IL App (2d) 101158, ¶ 14. Again, the only
     questions presented are issues of law, and the de novo standard of review applies.
¶4       We begin by noting that a motion to vacate an order as void may be brought at any time
     and is not subject to the two-year limitations period imposed under section 2-1401. People
     v. Harvey, 196 Ill. 2d 444, 447, 753 N.E.2d 293, 295 (2001). Accordingly, the court erred in
     denying the State Police’s motion on the basis that it was untimely filed. The question then
     becomes whether the court’s order of expungement was void. “An order is void if it was
     entered by a court that lacked jurisdiction of the parties or of the subject matter or lacked the
     inherent authority to enter the particular order involved.” People v. Thon, 319 Ill. App. 3d
     855, 861, 746 N.E.2d 1225, 1231 (2001).
¶5       As a general matter, “expungement of criminal records is a creature of legislative
     enactment.” Thon, 319 Ill. App. 3d at 862, 746 N.E.2d at 1232. Consequently, an individual
     is eligible for expungement only when the legislature has authorized such expungement.
     People v. Bushnell, 101 Ill. 2d 261, 268, 461 N.E.2d 980, 983 (1984). Likewise, a court
     cannot expunge a record of conviction, absent specific statutory authorization. People v.
     Howard, 233 Ill. 2d 213, 218, 909 N.E.2d 724, 727 (2009); Bushnell, 101 Ill. 2d at 268, 461
     N.E.2d at 983. The Criminal Identification Act (Act) (20 ILCS 2630/0.01 to 13 (West 2006))
     provides for the sealing and expungement of criminal records under certain circumstances.
     At the time Wakefield filed his expungement petition, section 5 of the Act governed his
     request. See 20 ILCS 2630/5 (West 2006).1 Section 5 allowed expungement of the record of


             1
               In 2010, the General Assembly amended the Criminal Identification Act, adding section 5.2,
     which now governs expungement. See 20 ILCS 2630/5.2 (West 2012). For the purposes of this
     appeal, the substantive criteria for expungement of Wakefield’s arrest record are the same under
     either statute.

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     arrest from the official records of the State Police provided that the individual requesting
     expungement had not been previously convicted of any criminal offense and was acquitted
     of the pending charge or released without being convicted. 20 ILCS 2630/5 (West 2006); see
     also Thon, 319 Ill. App. 3d at 859, 746 N.E.2d at 1229. Wakefield did not qualify for
     expungement because he was not acquitted of his domestic battery arrest. He was convicted
     of that crime. Wakefield’s arrest record could be expunged only if he had been acquitted,
     received supervision, or received probation under certain inapplicable statutes. See 20 ILCS
     2630/5(a) (West 2006). Again, Wakefield was not acquitted, nor did he receive supervision
     or probation; he received a conditional discharge upon being convicted of domestic battery.
     A conditional discharge is defined as “a sentence or disposition of conditional and revocable
     release without probationary supervision but under such conditions as may be imposed by
     the court.” 730 ILCS 5/5-1-4 (West 2010). This meant that, while being spared from going
     to prison, even after completion of his sentence, the conviction still remained on his record.
     See 730 ILCS 5/5-1-4 (West 2010). An order of supervision, on the other hand, provides for
     a judgment dismissing the charges upon successful conclusion of the supervisory period. See
     730 ILCS 5/5-1-21 (West 2010). Clearly an order of supervision and a conditional discharge
     are two distinct dispositions of criminal matters. Certain other narrowly defined instances
     also were not applicable to Wakefield’s situation. 20 ILCS 2630/5 (West 2006). Given that
     there is no language in section 5 authorizing expungement of a judgment of conviction where
     a sentence of conditional discharge is imposed, Wakefield was ineligible for expungement
     of his record under the Act. With no statutory basis upon which the court could issue the
     expungement order, and because the court lacked the inherent power to grant expungement
     in general, the order of expungement issued herein was void.
¶6       Illinois has narrow criteria for expungement of arrest records. We presume these limited
     criteria are consistent with the government’s interest in keeping a record of an individual’s
     past convictions for the purposes of recidivism, given that penalties often increase in severity
     with each added conviction. Examination of the statutory provisions which provide for
     expungement of criminal records reveals that the legislature has not yet seen fit to allow
     expungement of a judgment of conviction where a sentence of conditional discharge is
     imposed. Absent appropriate legislation, the trial court had no authority to expunge a record
     with a judgment of conviction under the circumstances presented here. Accordingly, the
     court’s order of expungement was void, and the State Police’s motion to vacate should have
     been granted.
¶7       For the foregoing reasons, we reverse the judgment of the circuit court of Lawrence
     County denying the State Police’s petition to vacate the expungement order, and we vacate
     the order of expungement.

¶8      Reversed; order vacated.




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