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State v. Yrigolla

January 25, 2008

STATE OF KANSAS, APPELLEE,
v.
DANIEL YRIGOLLA, APPELLANT.
STATE OF KANSAS, APPELLEE,
v.
LAWRENCE E. ORTIZ, JR., APPELLANT.



Appeal from Wabaunsee District Court; MICHEAL A. IRELAND, judge.

SYLLABUS BY THE COURT

1. Interpretation of a statute is a question of law over which we enjoy unlimited review.

2. K.S.A. 2006 Supp. 21-4619 is construed and applied.

3. K.S.A. 2006 Supp. 22-2410 is construed.

4. By enacting Senate Bill 482, the Kansas Legislature amended K.S.A. 2006 Supp. 21-4619 and created K.S.A. 2006 Supp. 22-2410, providing two different procedures for expunging arrests.

5. When a conflict exists between a statute dealing generally with a subject and another statute dealing specifically with a phase of it, the specific statute controls unless legislative intent clearly indicates otherwise.

6. Under the facts of this case, K.S.A. 2006 Supp. 21-4619 is the specific statute and, thus, controls over K.S.A. 2006 Supp. 22-2410.

7. When a person is charged with a crime and subsequently enters into a diversion agreement and successfully completed the diversion, the criminal charge is dismissed with prejudice; the charge does not become a conviction on that person's record.

8. Where practicable, it is the court's duty to reconcile different statutory provisions in order to make them consistent, harmonious, and sensible.

9. The court must give effect to the legislature's intent even though words, phrases, or clauses must be inserted or omitted at some place in the statute.

The opinion of the court was delivered by: Elliott, J.

Affirmed.

Before CAPLINGER, P.J., ELLIOTT and LEBEN, JJ.

Daniel Yrigolla and Lawrence E. Ortiz, Jr., appeal the trial court's order denying their motions to expunge their arrest records. Both defendants claim the trial court erred in ruling K.S.A. 2006 Supp. 21-4619(b), containing a 5-year waiting period for filing a petition for expungement, applied to their cases instead of K.S.A. 2006 Supp. 22-2410 which has no waiting period. We affirm.

The trial court ruled K.S.A. 2006 Supp. 21-4619(b) applied because both defendants were arrested and charged with a severity level 3 drug crime and subsequently placed on diversion. The trial court also ruled K.S.A. 2006 Supp. 22-2410(c)(4) applies only to expungement of arrest records where (1) a person was arrested due to mistaken identity, (2) the statute of limitations had run and the person could not be prosecuted for the crime for which he or she was arrested, or (3) the State simply declined to prosecute the person for the crime for which arrest was made.

Interpretation of a statute is a question of law over which we enjoy unlimited review. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003). And when a statute is plain and unambiguous, we must respect the ...


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