Expungement Blog

A Trial Court Judge Retains Discretion to Deny a Vacate Request

Posted by Ryan Robertson on Nov 18, 2020 | 0 Comments

Recently, the Washington State Court of Appeals has reminded us of something very important in an opinion related to a vacate appeal. Anyone thinking about filing a vacate request needs to understand what the Court said.

The appellate court reminded us that a judge has the discretion to reject a vacate request even if the petitioner meets all statutory requirements under the vacate law.

What does this mean? It means that simply proving you meet all the requirements under law to vacate a conviction does not mean you are entitled to have the conviction vacated.

The Washington vacate laws (felony and misdemeanor) state that the judge “may” vacate a conviction if the statutory requirements are met. “May” is a term that means something is permissive. It is not the equivalent of “shall.” Basically, proving compliance with statutory requirements allows the judge to exercise his or her discretion to grant a vacate petition. It does not mean the judge is required to grant the petition.

In the appeal case (State v. Kopp), Mr. Kopp was charged with rape. The charge was plea bargained to Assault 3°, a charge that can now be vacated under the New Hope Act. But when Mr. Kopp asked the judge to vacate the conviction, the court denied the request. In his order, the judge relied heavily on the facts of the underlying rape allegation to conclude it would be “not reasonable or appropriate” to vacate the conviction.

Was the judge's reasoning proper? According to the Court of Appeals – yes. The appellate court held there was no abuse of discretion in relying on the facts of the case to reject a vacate request.

At Robertson Law, we already knew this. For the last decade we have been advocating for our clients' ability to vacate conviction records by focusing on the judge's discretion, not ignoring it. It is our job to make judges want to exercise their discretion in favor of our clients. That means we present each client's whole story. This takes more time and work, but as the Kopp decision reminds us, failing to do the extra work can be catastrophic.

If you have questions about whether your past conviction(s) can be vacated, please contact us. We are ready to help.

About the Author

Ryan Robertson

Ryan is a creative and articulate advocate who limits his practice to criminal appeals and post-conviction relief including vacation, expungement, and sealing of records. He has worked exclusively in the criminal defense field since passing the Washington State bar exam in 1998. Ryan has been recognized as a Rising Star lawyer by Law & Politics Magazine.

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Ryan Robertson's practice focuses exclusively on high-quality creative appellate representation in criminal and administrative matters, as well as expungements, vacation of records, and petitions to seal.