Can you seal a criminal record if your probation was revoked?  Until the last few years, the answer was always: No, you cannot seal a record with a revocation (the official cancellation of a decision).  Now, thanks to some changes in the law, there are more criminal cases with revocations that are eligible to be sealed than ever before.

How do you know if your criminal case with a revocation is eligible to seal?  It depends on which statute you are sealing your criminal record under because all three sealing statutes have different standards. If you are a Defendant that is not sure if you can seal your record or if you already filed a petition to seal and the prosecutor objected because of a revocation, then I urge you to call an attorney or consider calling our Helpline at 501-376-3423 to apply for free legal services with the Center for Arkansas Legal Services.

First Offender’s Act & Revocations

The best possible outcome would result from sealing your record under the First Offender’s Act (Act 346) (A.C.A. § 16-93-301).  Here, your record could be Dismissed & Sealed.  This means your felony conviction can disappear if your Petition to Dismiss & Seal is granted.  However, you can only use Act 346 if you were specifically sentenced under the First Offender’s Act.  Check your Sentencing Order to see if the box is clearly checked next to the statute “A.C.A. § 16-93-301 et seq.”  Sometimes that box may be left blank, but your Plea Statement or Order of Conditions of Probation will have “Act 346” or “First Offender'' written on that document.  Also, you must have pled guilty, had over twelve months of probation, your guilt was deferred, and you would have had stricter probation conditions.

Here is what the First Offender Act says about completing your probation without messing up and what happens if you violate a part of your probation.  According to A.C.A. § 16-93-303(b), “Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court adjudication of guilty, whereupon the court shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and seal the record…”.  Part of the same statute, § 16-93-303(a)(2) states, “Upon violation of a term or condition, the court may enter an adjudication of guilty and proceed as otherwise provided.”

Community Punishment Act & Revocations

The Community Punishment Act (“CPA / 531”) (A.C.A. § 16-93-1202), was the primary sealing statute until CCRSA/1460 came into effect on January 1, 2014.  Now, it is uncommon to seal cases under CPA/531 because nearly all cases can be sealed under CCRSA/1460.  There are some situations where it is the only possible sealing statute; for example, if you were convicted of Theft of Property as a Class B felony, then the CPA is your only option because that is ineligible under the CCRSA.

To find out if we can seal a revocation case under the CPA, we look at the standard for completing your sentence.  Part of the CPA is in A.C.A. § 16-93-1207(b)(1), which provides the standard, “Upon successful completion of probation …  the court may direct that the record of the offender be expunged of the offense for which the offender was either convicted or placed on probation under the condition that the offender has no more than one previous felony conviction[.]”  While it uses different language “Successful completion of probation” as opposed to First Offender, “fulfill the terms and conditions of probation;” they basically mean the same thing. If you mess up on probation, then the judge is allowed to deny your petition to seal.  However, just in my experience and from reading case law, the First Offender standard is enforced more strictly than the CPA standard.

For cases with a revocation under the Community Punishment Act 531, that you must look at your Post-Revocation Sentencing Order to see if it specifically allows you to seal under 531/CPA.  If it says “Yes” next to the 531/CPA statement, then you can seal your record.  If it says “No”, then you cannot seal your record under 531/CPA, BUT I believe you can still seal your record under CCRSA/1460.

 Comprehensive Criminal Record Sealing Act of 2013 (Act 1460) & Revocations

The standard for “completing your sentence” is much lower for CCRSA/1460 than for CPA/531.  A Petitioner doesn’t have to have “successfully completed their sentence,” nor must they “fulfill the terms and conditions of probation”.  The only requirement in 1460 regarding completing probation/parole is that the person “Has been discharged from probation or parole.” A.C.A. § 16-90-1404(1)(C)(i). 

Hypothetically, this means a Defendant could have multiple guilty probation revocations and still be eligible to seal their record, as long as they eventually get discharged from probation/parole.  I’m aware of no case law interpreting CCRSA/1460 and revocations.  But so far, prosecutors have agreed to seal cases with revocations under 1460 because all of the Defendants were eventually discharged from probation/parole after their revocation.  Keep in mind that the Defendant still must complete all of the terms of their sentence, including paying all fines, fees, costs, & restitution, and all other requirements of their sentence.   However, a revocation will not make a person ineligible to seal under 1460, even though the revocation may make the same case ineligible to seal under the First Offender and Community Punishment Act.

What it all means.

Revocations have vastly different effects depending on which statute you file your petition to seal under.  The First Offenders Act (Act 346) is the strictest, where you normally cannot seal your record if you have had a revocation.  Under the Community Punishment Act (CPA/Act 531), it all will depend on what is in the post-revocation sentencing order.  While with the Comprehensive Criminal Record Sealing Act (CCRSA/1460), you can seal your record with a revocation, as long as you would otherwise be eligible to seal.

If you want to find out if you are eligible to seal your Arkansas criminal record, then you should contact an attorney of your choice. If you would like to apply for free legal services through our Helpline, call 501-376-3423, Monday-Friday, 9 am- 4 pm.

Further explanation through case law:

This language has been interpreted in a couple of cases over the last decade.  Most recently was Robinette v. State, 2021 Ark. App. 48, where the Defendant, Robinette, filed a Petition to Dismiss & Seal her felony under the First Offender’s Act.  The Craighead County Circuit Court Ordered Robinette’s case be sealed, but not dismissed.  Robinette appealed.

Robinette was placed on three (3) years supervised probation after pleading guilty to a 2014 charge of Possession of a Controlled Substance (meth), a class D felony.  The terms of Robinette’s probation included not committing a criminal offense punishable by imprisonment and not using, selling, distributing, or possessing any controlled substance, among other requirements.  In 2017, while still on probation, Robinette was charged with possession of a controlled substance (meth), endangering the welfare of a minor, refusal to submit to arrest, and public intoxication.  Because of these new charges, a Petition to Revoke Robinette’s Probation was filed in the 2014 case.  Robinette ultimately entered a guilty plea to drug possession in the 2017 case in exchange for being transferred to Drug Court, some of the charges being nolle prossed, and for the 2014 Probation Revocation Petition being nolle prossed.

After completing Drug Court for the 2017 case and completing her probation for the 2014 case, Robinette filed a Petition under the First Offender’s Act to Dismiss & Seal her 2014 case.  The State objected, alleging Robinette had not successfully completed her probation because she had pleaded guilty to possession of methamphetamine in the 2017 case, and thereby, her 2014 case was ineligible for dismissal.  The Court of Appeals affirmed the Circuit Court Order to Seal but not Dismiss, holding, “Robinette did not fulfill the terms and conditions of her probation, as evidenced by her guilty plea to possession of methamphetamine in the 2017 case while she was on probation in the 2014 case, and the fact that the revocation petition was nolle prossed is of no consequence in answering that question.”

This case sets an example for future cases, specifically that if a Defendant is sentenced under the First Offender’s Act, and the prosecutor files a Probation Revocation Petition (even if it’s nolle prossed), the court is allowed to refuse to dismiss the case.  Interestingly, Robinette was still able to seal her case, just not enjoy the full dismissal benefit of the First Offender’s Act.

Next, in Kimbrell v. State, 2016 Ark. App. 17, a similar set of facts occurred with a worse outcome for the Defendant.  Here, Kimbrell was placed on four years’ probation under the First Offender’s Act.  During his probation, the State filed a Petition to Revoke based on Kimbrell’s being charged with several drug offenses, failure to pay child support, and his confession to using marijuana.  But no hearing was ever held on the revocation, and after a couple years of no action, the State nolle prossed the Revocation Petition.  Fourteen years later, Kimbrell filed a Petition to Dismiss & Seal under the First Offender’s Act.  The State objected, stating that Kimbrell did not “fulfill the terms and conditions of his probation” because, while on probation, Kimbrell was charged with several drug felonies, and admitted to using marijuana, which resulted in the Probation Revocation Petition.  Kimbrell responded that he did, in fact, successfully complete his probation, because he was never convicted of those unproven offenses, and the Probation Revocation Petition was Nolle Prossed.  The Circuit Court decided, based on the charges and Kimbrell’s confession, that he did not fulfill the terms and conditions of probation and denied Kimbrell’s Petition to Dismiss & Seal.  The Arkansas Court of Appeals affirmed.

This case is even worse for Defendants because at least Robinette’s case was sealed, even though it wasn’t dismissed.  Kimbrell’s case was neither dismissed nor sealed, all based on a Probation Revocation Petition that was Nolle Prossed and a fourteen-year-old confession to using marijuana.  This case also shows us how much discretion judges have when sealing records; nothing is guaranteed to be sealed or not sealed with revocations.  One judge may grant the Petition to Seal and Deny the Petition to Dismiss; while another judge may deny both the Petition to Seal & Petition to Dismiss. 

The last case we’ll discuss on First Offender’s Act and Revocations, is Luevano v. State, 2012 Ark. App. 436.  In Luevano, the defendant was placed on probation under the First Offender’s Act, and one of the probation conditions was that Luevano ``refrain from committing any offense punishable by imprisonment.”  Years later, Luevano filed a Petition to Dismiss & Seal under First Offender’s Act.  The Circuit Court denied that Petition to Dismiss & Seal despite no Probation Revocation Petition ever being filed.  Why?  Because while on probation, Luevano was convicted in another state of an offense punishable by imprisonment.  The Court of Appeals held “that failure to institute revocation proceedings has no bearing on the question of whether a defendant fulfilled the terms and conditions of his probation.”

As you can see by those three cases, Robinette, Kimbrell, & Luevano, it is not so much the actual Probation Revocation Petition and whether it’s nolle prossed or revoked.  What really matters is if the State has any facts that evidence a violation of probation.  It can be as simple or small as admitting to a police officer that you smoked marijuana weeks or months ago.  Although more commonly, a denial would require some sort of criminal activity occurring while on probation, even if it is never proven.  It is all within the judge’s discretion.  Kimbrell and Robinette seem very similar, yet Robinette could seal her case, but not dismiss, but Kimbrell could neither seal nor dismiss his case.  Luevano could neither seal nor dismiss, even without a Revocation petition being filed, because Luevano had a conviction in another state.  What really matters is you violated the terms of your probation, even once.  

Interestingly, in the Concurrence of Kimbrell, one judge would have been even stricter.  Judge Virden’s concurring opinion states that he would have denied Kimbrell’s Petition to Dismiss & Seal because Kimbrell failed to pay probation supervision fees while on probation.  Even though the fees were subsequently waived, this prospect would deny sealing a criminal conviction based on inability to timely pay court fees, but not on unproven criminal allegations in the Probation Revocation Petition.  Generally, I will file a Petition to Seal a case with a revocation if the revocation was due to the Defendant’s inability to pay, regardless of the statute.  The fact that someone had low income while on probation should not cause that person to lose their right to seal their case.  To sum up, if I were on First Offender’s probation, I would be worried about sealing my record even if I just got a speeding ticket violation while on probation.  However, with a good attorney, you have to take that chance and file that Petition to Dismiss & Seal, as long as you were specifically sentenced under that Act.

Cases with revocations under the CPA were interpreted by State v. Brown, 2019 Ark. 395.  Here, Brown pled guilty to Class C felony theft of property in 2009 and was sentenced to three years’ probation under 531/CPA.  On most circuit court sentencing orders, there is a Yes & No box that can be checked, next to the statement, “Defendant committed a target offense and was sentenced under the Community Punishment Act. Upon successful completion of the conditions of probation/S.I.S., the Defendant shall be eligible to have his or her records sealed.”  Here, both Yes & No were unmarked on Brown’s original sentencing order, but the conditions of probation referenced that his case was sentenced under Act 531/CPA.   In 2011, the State filed a Petition to Revoke the original order and Brown pled guilty to the revocation.  A new post-revocation sentencing order was entered resentencing Brown to four more years’ probation.  This new post-revocation sentencing order had a blank next to the Yes/No statement about being sentenced under 531/CPA and eligible for expungement; and on the blank was written “No”.  In 2018 Brown Petitioned to Seal her conviction under 531/CPA and the State objected based on the revocation.  The Circuit Court granted Brown’s 531/CPA Petition to Seal and stated that Brown had “satisfactorily complied” with her probation.  The State appealed.  The Arkansas Court of Appeals ruled that Brown was ineligible to seal her record under Act 531/CPA because the Post-Revocation Sentencing Order had “No” written next to that Act 531/CPA statement about both whether the conviction was a target offense and if it was eligible to seal under 531/CPA.   The dissenting opinion argued that Brown completed her probation; it may have amended and extended, but the probation was still completed.

You can still view Brown on Court Connect, 60CR-09-1130, at least until Brown decides to file a Petition to Seal under 1460 instead of 531.

AUTHOR: RYAN HILL, STAFF ATTORNEY, FOR THE CENTER FOR ARKANSAS LEGAL SERVICES