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Supreme Court Clarifies the Meaning of 33 V.S.A. §5119(g)

In State of Vermont v. Jonathan Villeneuve, 2016 VT 80 (July 15, 2016), the Vermont Supreme Court reversed and remanded the Chittenden Criminal Division’s decision denying Defendant’s motion to seal the record of his 2001 conviction for lewd and lascivious conduct with a child.

Issue: Defendant was convicted of lewd and lascivious conduct with a child in 2001, when he was 20 years old. He completed probation in 2004, and has had no subsequent criminal convictions. In September 2015, defendant filed a motion to seal his record under 33 V.S.A. §5119(g), which allows a record to be sealed if two years have passed “since the final discharge of the person” and if the crime occurred before the applicant turned 21. The trial court denied the motion, finding that the underlying offense was a listed crime under 13 V.S.A. §5301(7). Defendant appealed, arguing that §5119(g)(2)’s bar on listed crimes only applies to subsequent offenses, not the underlying offense. The State agreed with Defendant’s reading of the statute.

Holding: The Supreme Court reversed and remanded the denial of Defendant’s motion, finding that the wording of the statute, which includes the phrase “after the initial conviction,” suggests that an applicant’s record can be sealed as long as the crime was committed before he or she turned 21 and as long as he or she has not subsequently been convicted of a crime listed in §5301(7). The Court noted that the trial court’s reading of the statute was contradictory, since §5119(g)(2) does not contain a limitation on the crimes eligible for sealing. Since the trial court did not consider whether defendant had been rehabilitated, the Court reversed and remanded to allow the trial court to do so.

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