Find Legal Information

Defendant, David J. Ambrosio, was charged with the Class 4felony of unlawful use of a credit card. He pleaded guilty toattempted unlawful use of a credit card (Ill. Rev. Stat. 1991, ch.17, par. 5921), a Class A misdemeanor. He was sentenced to 18months' conditional discharge, fined $200, and ordered to pay $800restitution. Defendant completed his conditional discharge onDecember 22, 1993. On September 24, 2001, he petitioned to havehis arrest record expunged. The circuit court denied the petitiondue to defendant's conviction. Defendant appeals, and we affirm.

Defendant contends that the order entered by the trial courtafter his guilty plea was not final and did not include anadjudication of guilt or a conviction, allowing him to have hisrecord expunged. The State argues that this court does not havejurisdiction to evaluate defendant's claim that the judgment isvoid because such an appeal must be filed within 30 days of theorder. The State's claim of lack of jurisdiction is misdirected.The order that defendant is appealing is the order denying hispetition to expunge. The notice of appeal was filed within days ofthis order, and we therefore have jurisdiction to entertain thisappeal.

Section 5(a) of the Criminal Identification Act states:

"Whenever an adult or minor prosecuted as an adult, not having previously been convicted of any criminal offense or municipal ordinance violation, charged with a violation of amunicipal ordinance or a felony or misdemeanor, is acquittedor released without being convicted, *** the presiding trialjudge at the defendant's trial may upon verified petition ofthe defendant order the record of arrest expunged from theofficial records of the arresting authority and the Departmentand order that the records of the clerk of the circuit courtbe sealed until further order of the court upon good causeshown ***." (Emphasis added.) 20 ILCS 2630/5(a) (West 2000).

In this case, the judge apparently decided that he did not have thediscretion to expunge defendant's arrest record due to defendant'sconviction. Since we will be applying law to undisputed facts, wereview the circuit court's decision de novo. See People v.Coleman, 183 Ill. 2d 366, 387-388 (1998).

Defendant recognizes that one must have been "released withoutbeing convicted" to be eligible for arrest record expungement. People v. Satterwhite, 319 Ill. App. 3d 931, 933-34 (2001). Astrict definition of the term "convicted" requires that a finaljudgment is actually entered on a determination of guilt. Peopleex rel. Grogan v. Lisinki, 113 Ill. App. 3d 276, 279 (1983). Wefirst examine whether the judgment includes an adjudication ofguilt. A judgment is generally construed like other writteninstruments, with the determinative factor being the court'sintent, as gathered from all parts of the judgment itself. Fieldcrest Builders, Inc. v. Antonucci, 311 Ill. App. 3d 597, 605(1999). An unambiguous judgment must be enforced as drafted, butan ambiguous judgment can be read and construed in conjunction withthe entire record. Fieldcrest Builders, Inc., 311 Ill. App. 3d at605. Defendant believes that he did not receive an adjudication ofguilt because, on the judgment, the trial judge did not place an"x" next to the box, "The court having found the defendant guiltyof ." The judge did, however, complete the sentence with thephrase "attempted unlawful use of a credit card 38 8-4 17-5921Class A." As this order was entered after defendant's guilty plea,we find that it does contain a determination of guilt.

Additionally, we note that the trial court ordered restitution in the amount of $800 as part of the disposition. An adjudicationof guilt is contemplated by statute when restitution is imposed asa condition in a sentence of probation or of conditional discharge. See People v. Breen, 26 Ill. App. 3d 547, 549 (1975).

The term "convicted" also requires that a final judgment isentered on defendant's determination of guilt. Lisinski, 113 Ill.App. 3d at 279. The final judgment in a criminal case is theimposition of a sentence. Lisinski, 113 Ill. App. 3d at 279. Inthis case, defendant was sentenced to 18 months' conditionaldischarge, as written in the judgment, giving it the status of afinal judgment. As such, defendant was convicted and is noteligible to have his arrest record expunged.

A few cases do exist in which defendants pleaded guilty andwere sentenced to probation, but were still treated as having been"released without being convicted" and allowed to have theirrecords expunged. In People v. Kane, 85 Ill. App. 3d 252 (1980),the defendant pleaded guilty to possession of cannabis. TheCannabis Control Act provided:

"(e) Upon fulfillment of the terms and conditions ofprobation, the court shall discharge such person anddismiss the proceedings against him.

(f) A disposition of probation is considered to bea conviction for the purposes of imposing the conditionsof probation and for appeal, however, discharge anddismissal under this Section is not a conviction forpurposes of disqualification or disabilities imposed bylaw upon conviction of a crime ***." Ill. Rev. Stat.1979, ch. 56