
    STATE of Louisiana v. Tracy P. DASPIT
    NO. 2016 CA 1522
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017
    
      WARREN L. MONTGOMERY, DISTRICT ATTORNEY, MATTHEW CA-PLAN, ASSISTANT DISTRICT ATTORNEY, COVINGTON, LA, ATTORNEYS FOR STATE OF LOUISIANA
    DAVID R. PADDISON, COVINGTON, LA, ATTORNEY FOR DEFENDANT-APPELLEE TRACY P. DASPIT
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

■lain this case, the State of Louisiana challenges the trial court’s August 4, 2016 order granting defendant’s motion for ex-pungement. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On February 25, 2016, defendant, Tracy P. Daspit, filed a Motion to Set Aside Conviction and Dismiss Prosecution and a Motion for Expungement relative to his October 1, 2013 conviction for driving while intoxicated, first offense. On the front of the Motion to Set Aside Conviction and Dismiss Prosecution, there is a stamp by the St. Tammany Parish District Attorney’s Office dated March 3, 2016, indicating opposition to same. The following handwritten notation is included: “Per C.Cr.P. Article 977D(2), expungement of a misdemeanor DWI shall occur only once during a 10-year period. This defendant had a misdemeanor DWI expunged on or about 10/15/08 under docket #389285.” Said notation appears to be signed by Assistant District Attorney Bruce G. Dear-ing.

The trial court heard arguments on the Motion to Set Aside Conviction and Dismiss Prosecution on April 5, 2016, after which the trial court granted said motion. On May 20, 2016, the District Attorney for the Parish of St. Tammany, appearing on behalf of the State of Louisiana, filed an Affidavit of Response, again setting forth the State’s position that pursuant to Article 977D(2), defendant was not entitled to an expungement in this case because of his prior expungement in 2008.

The Motion for Expungement proceeded to hearing on August 4, 2016. After considering the arguments of the parties, the trial court granted the motion for expungement, stating:

All right. Still have questions in my mind as to the eligibility, only because of the 10 year cleansing period and the date in which it commences, based upon the prior plea and expungement thereof. I’m going to grant the motion to ex-pungement. But I’m not going to pass judgment on whether the department is going to honor that order. It may be an issue that needs to [be] addressed through [the] 19th Judicial District Court, in their venue, to determine whether that is going to be a successful order, and their expungement of the record.

|sThe trial court signed the Order of Ex-pungement of Arrest/Conviction Record on August 4, 2016, but did not check the boxes on the form judgment regarding the specific relief that was granted in the proceeding.

On August 30, 2016, the State filed a Motion for Suspensive Appeal and for Designation of Record, requesting that “a copy of the court record under docket number 389285” be included in the record on appeal. Defendant opposed this motion. Thereafter, on September 13, 2016, the trial court signed the order of appeal providing that the record on appeal would include “the proceedings designated in the foregoing Motion for Appeal.” Defendant subsequently filed a Motion to Suppress the Record, arguing that the records from docket number 389285 had been expunged, and therefore, were confidential and not allowed to be produced under any exceptions under the law. This matter was set for hearing on November 3, 2016, at which time the trial court informed the parties that due to the matter being on appeal, the motion would be continued without date.

This court issued a rule to show cause order on November 21, 2016, advising the parties that the August 4, 2016 judgment lacked specificity. The matter was remanded to the trial court for the limited purpose of allowing the trial court to sign an amended judgment to cure the defects in same. On December 1,2016, the trial court corrected the order of expungement by specifically checking the applicable boxes on the judgment. The record herein was supplemented with the corrected judgment on December 6, 2016.

Thereafter, on August 16, 2017, this court issued an order remanding the matter to the trial court for the limited purpose of conducting a hearing on the motion to suppress that had previously been continued without date. The trial court heard the motion on September 7, 2017, and, denying the motion to suppress, noted as follows:

I struggle with what to do here, but I think in an abundance of caution to give the Court of Appeal the benefit of all information I am going to deny the Motion to Suppress the Record. ... At least now they ... can look at it and try to come up with a decision one way or the other I don’t care.

14Thus, the record in this case was again supplemented, this time with a copy of the record of the proceedings from St. Tammany Parish bearing docket number 389285 (“Exhibit 1”).

SUPPLEMENTATION OF RECORD

At the outset, we must address the supplementation of the appeal record with Exhibit 1. Although the way by which Exhibit 1 has found its way into the appeal record is somewhat convoluted, what is clear from our review of the record below is that Exhibit 1 was not filed in any of the trial court proceedings below, and therefore, did not become part of the trial court record. This court can neither supplement the record with nor consider on appeal documents that were not introduced or filed into the record during the proceedings below. See White v. West Carroll Hosp., Inc., 613 So.2d 150, 154 (La. 1992). As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Niemann v. Crosby Development Co., L.L.C., 2011-1337, p. 7 (La. App. Cir. 5/3/12), 92 So.3d 1039, 1044. The material in Exhibit 1 is not the supplementary material envisioned by La. Code Civ. P. articles 2088 or 2132, which authorize supplementation of the record by stipulation of the parties, by the trial court, or by order of the appellate court. These articles permit the correction of evidence or the furnishing of omitted evidence that was actually introduced or filed into the trial court record. Strawn v. Superfresh, 98-1624, p. 3 n.2 (La. App. 1 Cir. 9/24/99), 757 So.2d 686, 688 n.2. Thus, while the trial court granted the State’s motion for designation of the record on appeal, which included a request for Exhibit 1, and subsequently denied defendant’s motion to suppress Exhibit 1 thereby allowing the appeal record to be supplemented with Exhibit 1, we have no authority to consider Exhibit 1 as it was not filed into the record below as evidence.

MOTION FOR EXPUNGEMENT

The sole issue for our review in this appeal is whether the defendant was entitled to the expungement granted by the trial court on August 4, 2016. Citing La. Code Crim. P. art. 977D(2), the State argues that the trial court’s judgment is erroneous because it was rendered less than 10 years after the last expungement defendant received in 2008 |sfor a prior misdemeanor DWI offensp. In response, defendant argues the State’s objection to the motion for expungement was untimely pursuant to La. Code Crim. P. art. 980, and thus, the expungement was properly granted.

The rules for expungement of records are set forth in La. Code Crim. P. arts. 971, et seq. Pursuant to Article 977D(2), “Expungement of a record of arrest and conviction of a misdemeanor offense of operating a vehicle while intoxicated shall occur only once with respect to any person during a ten-year period.” Moreover, the code provides for service instructions in La. Code Crim. P. art. 979 as ■ follows:

A. The clerk of court shall serve notice of the motion of expungement by United States mail or electronically upon the following entities:
(1) The district attorney of the parish • of conviction.
(2) The Louisiana Bureau of Criminal Identification and Information.
(3) The arresting law enforcement agency.
B. When service is made by United States mail, a certificate of service shall be' filed into the record indicating the date thé motion was placed in the United States mail for service.

At the expungement hearing, defendant’s counsel argued that the State’s Affidavit of Response, which was filed on May 20, 2016, was untimely because the motion for expungement had been “filed and served on the district attorney’s office as well as, according to the clerk, the Louisiana Bureau of Criminal Identification and Information, on or about February 23rd.” Defendant’s argument on appeal as to the timeliness of the State’s objection to the motion for expungement does not mention the service date of the motion on the district attorney’s office. Rather, defendant asserts that the Affidavit of Response'was untimely because it was filed after the “granting of the ex-pungement” on April 6, 2016. We find no merit to either of these arguments.

| ¡/There is nothing in the record to support defendant’s claim that the parties were actually served with the motion for expungement on February 23, 2016. In fact, the motion to set aside conviction and dismiss prosecution and the motion for expungement were not filed with the clerk of court until February 26, 2016. The only evidence in the record concerning service of process by the clerk of court’s office appears in the record following the Order of Expungement of Arrest/Conviction Record. According to same, service was requested on the district attorney, the Louisiana Bureau of Criminal Identification and Information, the arresting agency, the sheriff, defendant’s attorney, and the clerk of court. The following language is included in the Certificate of Service by the Deputy Clerk of Court for St. Tammany Parish: “Pursuant to LA CCrP Article 979, I hereby certify that I have served the foregoing Order of Expungement to the named entities as listed above on this 20th day of May, 2016, by: Placing in U.S. Mail.” Therefore, if service was only made on the parties on May 20, 2016, and the State’s Affidavit of Response was filed on the same date, May 20, 2016, defendant’s timeliness argument fails.

However, our inquiry does not end here. We turn now to a discussion of whether the trial court was authorized to grant defendant’s motion for expungement. As argued by the State, defendant had obtained expungement for another misdemeanor DWI offense less than 10 years prior to this proceeding and, therefore, was not entitled to have this arrest/conviction record expunged.

As previously indicated, when defendant originally filed his Motion to Set Aside Conviction and Dismiss Prosecution and a Motion for Expungement, the State, through the district attorney’s office, opposed the motion with the following handwritten notation dated March 3, 2016: “Per C.Cr.P. Article 977D(2), expungement of a misdemeanor DWI shall occur only once during a 10-year period. This defendant had a misdemeanor DWI expunged on or about 10/15/08 under docket #389285.” Similarly, at the expungement hearing, defendant’s counsel seemed to acknowledge the prior expungement, stating, “This defendant had a misdemeanor DWI -expunged on or about- 2008, which related to a 2005 conviction.” Thus, as defendant already had his arrest/conviction record ex-pungedjjfor a misdemeanor DWI offense in 2008, it appears clear that pursuant to Article 977D(2), he was not entitled to the expungement granted herein by the trial court on August 4, 2016. .

We note an additional argument made by the State below concerning the additional requirements set forth in La. Code Crim. P. art. 984 for the expungement of a record involving a DWI. The State maintained that none of these requirements were complied with by defendant in the instant ease, and thus, objected to the expungement.

Article 984 provides as follows:

A.A person convicted of operating a vehicle while intoxicated shall be required to: supplement the motions required in this Title with proof in the form of a certified letter from the Department of Public Safety and Corrections, office of motor vehicles, that the person has complied with the requirements of this Article. The certified letter shall be attached to the motion to expunge the record of arrest and conviction for operating a-vehicle while-intoxicated.
B. The court shall order the clerk of court to mail to the Department of Public Safety and Corrections, office of motor. vehicles, all of the following as provided by the defendant:
(1) A certified copy of the record of the plea of guilty.or nolo contendere.
(2) Fingerprints of the defendant.
(3) Proof that the defendant meets the requirements as set forth in Article 556 or 556.1 of this Code which shall include the defendant’s date of birth, social security number, and driver’s license number.
C. An additional fifty-dollar court cost shall be assessed at this time against the defendant and paid to the Department of Public Safety and Corrections, office of motor vehicles, for the costs of storage and retrieval of the records. The court cost provided by this Paragraph shall be submitted to the department regardless of whether the clerk of court is submitting this matter to the department pursuant to Paragraph B or D of this Article,
D. In lieu of forwarding the items listed in Paragraph B of this Article, the clerk of court may send a copy of the letter issued by the department pursuant to Subparagraph (B)(1) of Article 894 if the clerk had previously submitted records of the plea to the department pursuant to that Article.

We find no evidence in the record before us that any of these requirements were met. Article 984 clearly states that a person convicted of DWI- shdll be required to supplement the motion to expunge with a certified letter that he has complied with requirements of the article. This language is mandatory and does not allow for any Isdiseretion by the trial court. See La. Code Civ. P. art. 5053. Accordingly, ex-pungement was not proper herein as these statutory requirements were not satisfied by defendant.

CONCLUSION

For the above and foregoing reasons, we reverse the August 4, 2016 Order of Ex-pungement and Arrest/Conviction Record signed by the trial court. All costs associated with this appeal are assessed against defendant, Tracy P. Daspit.

REVERSED.

Guidry, J. concurs

Crain, J. concurs 
      
      . While defendant refers to the action taken by the trial court on April 5, 2016, as the "granting of the expungement,” we note that what the trial court actually signed on April 5, 2016, was not the order of expungement, but rather an order of dismissal, setting aside defendant's conviction and dismissing the prosecution pursuant to La, Codo Crim. P. art.894B.
     