Expungement / Record Sealing Petition and Eligibility Memo — Wisconsin

Wisconsin Expungement Eligibility and Procedure Memorandum

TO: [CLIENT OR SUPERVISING ATTORNEY]

FROM: [ATTORNEY]

DATE: [__/__/____]
RE: Wis. Stat. § 973.015 eligibility, sentencing decision, and completion procedure

Question Presented

Whether the record of [OFFENSE], entered in [COUNTY] County Circuit Court case [CASE NUMBER], may be expunged under Wis. Stat. § 973.015, and which procedure applies at the present stage of the case.

Short Answer

[SELECT AND COMPLETE.]

☐ Sentencing has not occurred. The court may decide expungement at sentencing if the person was under age 25 at the offense date, the offense carries no more than six years of imprisonment, no statutory Class H or Class I bar applies, and the court finds that the person will benefit and society will not be harmed.

☐ The mandatory under-18 route may apply. Section 973.015(1m)(a)2. requires an at-sentencing expungement order for specified violations of § 942.08 committed under age 18.

☐ The court ordered expungement and probation or incarceration was imposed. The post-sentence mechanism is the certificate of discharge issued and forwarded by the probationary or detaining authority after successful completion.

☐ The court ordered expungement and neither probation nor incarceration was imposed. Official Form CR-266 is the applicable petition after successful completion.

☐ The court did not order expungement at sentencing. Section 973.015(1m) does not authorize a later sentence-modification request to add expungement. Other possible remedies, if any, require separate analysis.

Relevant Facts

Governing Law

1. The ordinary decision occurs at sentencing

Under § 973.015(1m)(a)1., the court may order expungement at sentencing when:

1. the person was under age 25 when the offense was committed;
2. the maximum period of imprisonment is six years or less;
3. no exclusion in § 973.015(1m)(a)3. applies; and
4. the court determines that the person will benefit and society will not be harmed.

The official annotations summarize State v. Matasek, 2014 WI 27, as construing “at the time of sentencing” to mean the proceeding at which the court announces the sanction. They summarize State v. Arberry, 2018 WI 7, as holding that the phrase does not include a post-sentencing motion for sentence modification.

2. A narrow mandatory at-sentencing route exists

Section 973.015(1m)(a)2. requires the court to order expungement at sentencing upon successful completion when the conviction is under § 942.08(2)(b), (c), or (d), or § 942.08(3), and the person was under age 18 when the offense was committed.

3. Class H and Class I felony exclusions

Section 973.015(1m)(a)3. bars expungement of a Class H felony if:

• the person has ever been convicted of a prior felony;
• the offense is violent as defined in § 301.048(2)(bm);
• the offense violates § 940.32;
• the offense violates § 948.03(2), (3), or (5)(a)1.–4.; or
• the offense violates § 948.095.

It bars expungement of a Class I felony if:

• the person has ever been convicted of a prior felony;
• the offense is violent as defined in § 301.048(2)(bm); or
• the offense violates § 948.23(1)(a).

The precise statute of conviction, offense date, penalty, classification, and criminal history must be verified before reaching an eligibility conclusion.

4. Successful completion controls the later record action

Section 973.015(1m)(b) defines successful completion to require no subsequent conviction. If the person was on probation, probation must not have been revoked and the person must have satisfied the conditions of probation.

The official annotation to State v. Lickes, 2021 WI 60, states that the conditions include those imposed by both DOC and the sentencing court. A court cannot declare the conditions satisfied when the record shows that one or more conditions were violated.

Upon successful completion, the detaining or probationary authority must issue a certificate of discharge and forward it to the court of record. If the person was imprisoned, the detaining authority must also send a copy to the department. The annotation to State v. Hemp, 2014 WI 129, describes expungement as self-executing when the authority forwards the certificate.

5. CR-266 is limited to sentences without probation or incarceration

Current Wisconsin Circuit Court Form CR-266 is titled Petition to Expunge Court Record of Conviction (Non-Probation/Non-Incarceration). Its declarations require that:

• the court ordered expungement when sentence was imposed;
• the petitioner was not placed on probation;
• the petitioner was not sentenced to jail or prison;
• the sentence, including court-ordered financial obligations, was completed; and
• no other criminal conviction occurred between this conviction and successful completion.

The form is signed under the criminal penalty of false swearing. It is not a substitute for the certificate assigned by statute to a probationary or detaining authority.

6. Relief is limited to the court conviction record

CR-266 states that only the court record of the conviction is expunged. Other court records and records of police, the Crime Information Bureau, other law-enforcement agencies, and the district attorney are unaffected. The conviction is not vacated or set aside.

Section 973.015(1m)(a)1. also excludes Department of Transportation conviction information required in a record under § 343.23(2)(a). The official annotation to State v. Leitner, 2002 WI 77, states that § 973.015 does not require law-enforcement agencies or prosecutors to destroy their records and does not prohibit later sentencing consideration of underlying facts obtained outside the expunged court record.

Analysis

A. Timing

[STATE WHETHER SENTENCING HAS OCCURRED. IF IT HAS, QUOTE OR ATTACH THE JUDGMENT AND SENTENCING TRANSCRIPT PORTION ADDRESSING EXPUNGEMENT.]

Conclusion: [THE COURT MAY STILL DECIDE AT SENTENCING / THE COURT ALREADY ORDERED EXPUNGEMENT / § 973.015(1m) DOES NOT PROVIDE A LATER ADD-ON ROUTE.]

B. Age and penalty

The person was [AGE] on [OFFENSE DATE]. The offense's maximum imprisonment on that date was [PERIOD], based on [OFFICIAL STATUTE URL OR ATTACHED OFFENSE STATUTE].

Conclusion: [SATISFIED / NOT SATISFIED / ADDITIONAL RESEARCH REQUIRED.]

C. Class H or Class I bars

[IDENTIFY CLASSIFICATION. COMPARE THE EXACT CONVICTION SUBSECTION WITH § 973.015(1m)(a)3. AND § 301.048(2)(bm). DOCUMENT THE PRIOR-FELONY SEARCH.]

Conclusion: [NO BAR IDENTIFIED / BAR IDENTIFIED / ADDITIONAL RESEARCH REQUIRED.]

D. Benefit and no harm

Evidence supporting benefit includes [EDUCATION, EMPLOYMENT, LICENSING, HOUSING, FAMILY, OR REHABILITATION FACTS].

Evidence relevant to harm to society includes [OFFENSE CIRCUMSTANCES, VICTIM INFORMATION, RESTITUTION, TREATMENT, SUPERVISION, AND PUBLIC-SAFETY FACTS].

Conclusion: [FACTUAL SHOWING TO PRESENT AT SENTENCING.]

E. Successful completion

[ADDRESS SUBSEQUENT CONVICTIONS. IF PROBATION WAS IMPOSED, ADDRESS REVOCATION AND EACH COURT- AND DOC-IMPOSED CONDITION. IF CR-266 APPLIES, CONFIRM ALL FINANCIAL OBLIGATIONS.]

Conclusion: [SUCCESSFUL COMPLETION SHOWN / NOT SHOWN / AUTHORITY REVIEW NEEDED.]

F. Correct post-sentence mechanism

☐ Probation or incarceration was imposed: request status from the probationary or detaining authority and confirm that its certificate was forwarded to the court.

☐ Neither was imposed: prepare current Form CR-266 without changing the official form.

☐ The factual record does not fit either route: obtain case-specific advice before filing.

Recommended Next Actions

Before sentencing

☐ Verify the offense statute and maximum imprisonment as of the offense date.

☐ Verify age on the offense date.

☐ Review the complete criminal history for any prior felony.

☐ Compare a Class H or Class I conviction with every exclusion in § 973.015(1m)(a)3.

☐ File or present a focused request supporting benefit and no harm.

☐ Ask the court to make the decision at sentencing and ensure the judgment accurately records it.

After a sentence involving probation or incarceration

☐ Obtain the judgment showing the at-sentencing order.

☐ Confirm no subsequent conviction.

☐ Confirm no probation revocation and full satisfaction of all court and DOC conditions.

☐ Contact the probationary or detaining authority about the certificate of discharge.

☐ Confirm court receipt and processing.

After a sentence involving neither probation nor incarceration

☐ Use the current CR-266 PDF or Word form.

☐ Confirm every declaration on the official form is true.

☐ Attach additional information only if necessary; do not alter the standard form.

☐ Retain a filed copy and confirm court processing.

Sources and References

• Wisconsin Legislature, Wis. Stat. § 973.015 and official annotations
• Wisconsin Court System, Form CR-266 page
• Wisconsin Court System, Form CR-266 PDF