People v. Kane , 85 Ill. App. 3d 252 ( 1980 )

Mr. JUSTICE CRAVEN

delivered the opinion of the court;

The defendant entered a plea of guilty to the offense of possession of less than 2.5 grams of cannabis in violation of section 4(a) of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56 1/20, par. 704(a)). He was sentenced to 6 months’ probation pursuant to section 10(a) of the same act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 710(a)) (herein 710). After successfully completing his term of probation and being discharged under 710, the defendant filed a petition to expunge his arrest record pursuant to section 5 of “An Act in relation to criminal identification and investigation” (Ill. Rev. Stat. 1977, ch. 38, par. 206 — 5) (herein 206). The trial court denied the petition upon the basis that the remedy of 206 did not apply to 710 probation. Defendant appeals. We reverse.

Section 710, often referred to as the “first offender” provision, “provides for the lenient treatment of a defined class of first-time marijuana offenders.” (People v. DuMontelle (1978), 71 Ill. 2d 157, 162, 374 N.E.2d 205, 207.) As set forth in 710, “[wjhenever any person who has not previously been convicted of * * * any offense under this Act” pleads or is otherwise found guilty, “the court may, without entering a judgment and with the consent of such person, sentence him to probation.” (Ill. Rev. Stat. 1979, ch. 56 1/1, par. 710(a).) Once the person is placed on probation, “the court * ° * shall defer further proceedings in the case until the conclusion of the period or until the filing of a petition alleging violation of a term or condition of probation.” 111. Rev. Stat. 1979, ch. 56%, par. 710(b).

Finally, and most important for the purposes of this appeal, 710 states:

“(e) Upon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him.

(f) A disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation and for appeal, however, discharge and dismissal under this Section is not a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime ** * (Emphasis added.) Ill. Rev. Stat. 1979, ch. 56 1/2, par. 710(e), (f).

In relevant part, section 5 reads:

“Whenever a person, not having previously been convicted of any criminal offense or municipal ordinance violation, charged with a violation of a municipal ordinance or a felony or misdemeanor, is acquitted or released without being convicted, the Chief Judge of the circuit wherein the charge was brought, or any judge of that circuit designated by the Chief Judge, may upon verified petition of the defendant order the record of arrest expunged from the official records of the arresting authority.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 206 — 5.

Thus, the issue presented is a question of statutory interpretation: whether a person discharged under 710 comes within the purview of 206 — has he been “released without being convicted.” (Ill. Rev. Stat. 1977, ch. 38, par. 206 — 5.) We answer in the affirmative.

The petitioner here has been discharged and has had the criminal proceedings against him dismissed pursuant to 710. Moreover, the “discharge and dismissal under this Section is not a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime ° (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 710(f).) It

is apparent that anyone who has had criminal proceedings against him dismissed has been “released without conviction.” Therefore, a person who successfully completes 710 probation may petition under 206 to have his record of arrest expunged.

The disposition of probation or its conditions are not in question on this appeal. The petitioner has successfully completed his 710 probation and has had the criminal proceedings against him dropped pursuant to 710. Therefore, relying upon the plain meaning and obvious purpose of the applicable statutory language, we hold that a person who has been discharged under 710 comes within the purview of 206. The defendant has been “released without being convicted.” The trial court was in error in its ruling that 206 had no application. Under that section, the court has the discretionary authority to expunge. This cause is thus remanded for further proceedings under that section.

Reversed and remanded.

TRAPP, J., concurs.