Supreme Court of Louisiana 

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #035

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 1st day of July, 2014, are as follows:

PER CURIAM: 

2013-C -2982 STATE OF LOUISIANA v. LEONARD CARDENAS, III (Parish of E. Baton 

Rouge)

We express no opinion here whether respondent may be entitled to 

expungement of his record of arrest and conviction for domestic 

abuse battery under this latest expression of legislative will. 

DECISION OF THE FIRST CIRCUIT REVERSED; ORDERS OF EXPUNGEMENT 

VACATED.

HUGHES, J., dissents and would deny the application and affirm 

the decisions of the lower courts. 
07/01/14 

SUPREME COURT OF LOUISIANA 

NO. 13-C-2982 

STATE OF LOUISIANA 

V.

LEONARD CARDENAS, III 

On Writ of Certiorari to the 

First Circuit Court of Appeal, Parish of East Baton Rouge 

PER CURIAM: 

We granted the state’s application to review the decision of the First Circuit 

affirming the district court’s order of expungement entered in respondent’s case 

following the court’s set aside of his misdemeanor conviction and sentence for 

domestic abuse battery with child endangerment in violation of La.R.S.14:35.3(I), 

and dismissal of the prosecution under La.C.Cr.P. art. 894. The district court 

entered the order, and the court of appeal affirmed, notwithstanding La.R.S. 

44:9(A)(5)(b), which provides that “[n]o person shall be entitled to an 

expungement if the misdemeanor conviction arose from circumstances involving a 

sexual act or act of domestic violence.” For reasons that follow, we reverse the 

decision of the court of appeal and vacate the expungement order under the law as 

it currently exists. 

 In September 2006, the state charged respondent with domestic abuse 

battery involving an incident with his wife that occurred on July 19, 2006 in the 

presence of their minor child. A bench trial took place on April 4, 2007, and the 

court found respondent guilty as charged. The court sentenced him to six months 
2

imprisonment, suspended all but 60 days of that term, directed home incarceration 

for the executory portion of the sentence, and imposed one year of active probation 

with a variety of special conditions. The trial court terminated the probation as 

successfully completed on May 19, 2010. Thereafter, defendant filed a motion to 

reconsider sentence in which he requested that the court set aside his conviction 

and dismiss the prosecution under La.C.Cr.P. art. 894. The court granted the 

motion over the state’s objection on May 18, 2011. Respondent then filed an 

Expungement Form on July 28, 2011, seeking to expunge his arrest and conviction 

record for domestic abuse battery with child endangerment. The district court 

granted the motion on August 23, 2011 and directed counsel to prepare the order of 

expungement. Two such orders appear in the record. The first, dated September 5, 

2012, and apparently stamped with the judge’s signature, directs the named parties 

to “expunge any and all public records of the arrest and disposition . . . the date of 

arrest being on or about July 19, 2006, and the disposition of these charges namely, 

DOMESTIC ABUSE BATTERY WITH CHILD ENDANGERMENT 

(MISDEMEANOR).” The second, dated September 17, 2012, drafted by 

counsel and signed by the judge, directs the named parties to expunge only the 

record of respondent’s arrest on July 19, 2006. 

 The state appealed to the First Circuit, arguing that the district court had 

erred as an initial matter by granting respondent’s motion to reconsider sentence 

after he finished serving it and setting aside his conviction, and then in ordering 

expungement of the records relating to the prosecution in apparent complete 

disregard of La.R.S. 44:9(A)(5)(b). In a split-panel decision, the First Circuit 

declined to revisit the district court’s judgment granting respondent’s motion to 

reconsider sentence and affirmed the court’s expungement order. State v. 
3

Cardenas, 13-0509 (La. App. 1 Cir. 11/26/13) (unpub’d).1 The majority conceded 

at the outset that Louisiana’s expungement law is convoluted and confusing. 

Cardenas, 13-0509 at 7 (“‘Our observation that the clarity of these laws, as 

amended, leaves much to be desired.’”) (quoting State v. Savoie, 92-1586, p. 2 (La. 

5/23/94), 637 So.2d 408, 409). The majority nevertheless divided expungement of 

misdemeanor arrest and/or conviction records into three general categories: (1) 

R.S. 44:9(E)(3)(a) applies to the expungement or destruction of conviction records 

in misdemeanor prosecutions that are dismissed pursuant to La.C.Cr.P. art. 894(B); 

(2) R.S. 44:9(A)(1)(b) applies to the expungement of arrest records when a 

misdemeanor prosecution has been instituted “and such proceedings have been 

 

1

 With regard to misdemeanor convictions, La.C.Cr.P. art. 894(A)(1) permits a trial court to 

suspend the imposition or execution of sentence and place the defendant on active or inactive 

probation. When imposition of sentence has been deferred, La.C.Cr.P. art. 894(B)(1) provides 

that if the court finds “at the conclusion of the period of deferral that the defendant has not been 

convicted of any other offense during the period of the deferred sentence, and that no criminal 

charge is pending against him, the court may set the conviction aside and dismiss the 

prosecution.”

 In the present case, the trial court did not defer the imposition of sentence but suspended 

execution of all but 60 days of the six-month sentence imposed. The option of setting aside the 

conviction and dismissing the prosecution would ordinarily not be available under that 

circumstance, but in its written judgment, dated April 27, 2011, granting respondent’s motion to 

reconsider sentence, the court adverted to La.C.Cr.P. art. 881.1(A)(2) which provides that in 

misdemeanor cases, a defendant may move to reconsider sentence at any time “following 

commencement or execution of such sentence” and the court may “grant the motion and amend 

the sentence, even following completion of execution of the sentence, to impose a lesser sentence 

which could lawfully have been imposed.” On the premise that a deferred sentence as a matter 

of La.C.Cr.P. art. 894(A)(1) is a lesser sentence for purposes of La.C.Cr.P. art. 881.1(A)(2), the 

district court vacated defendant’s original sentence and deferred imposition of sentence under the 

same terms of probation as originally imposed. Respondent had successfully fulfilled those 

conditions and the court accordingly set aside his conviction and dismissed the prosecution under 

La.C.Cr.P. art. 894(B)(1). The court acknowledged that when domestic abuse battery involves 

child endangerment, the minimum mandatory term of imprisonment for a first offense “shall be 

served without benefit of parole, probation, or suspension of sentence.” R.S. 14:35.3(C). The 

court further noted, however, that when the legislature intends to eliminate deferral of sentence 

as an option, it does so expressly. See, e.g., La.R.S. 14:80(D)(1) (in cases of felony carnal 

knowledge of a juvenile, “the defendant shall not be eligible to have his conviction set aside or 

his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure 

Article 893.”). No such restriction exists in R.S. 14:35.3 and after noting the salutary effects of 

the law for those offenders able to complete a probationary term successfully, the court found 

“no basis in law or in fact” for denying the motion to reconsider.

The First Circuit declined to review the merits of the court’s judgment in this respect 

because the state, although objecting at the time, did not timely seek review and the judgment 

therefore became final before the state appealed from the subsequent order of expungement. 

Cardenas, 13-0509 at 4-5. Thus, the only issues properly before this Court are those raised by 

the district court’s order of expungement. 

 
4

finally disposed of by dismissal, sustaining of a motion to quash, or acquittal;” and 

(3) R.S. 44:9(A)(5) governs expungement of arrest records in cases in which the 

movant has been convicted of a misdemeanor, “if five or more years [have] 

elapsed between the date of the motion and the successful completion of any 

sentence, deferred adjudication, or period of probation or parole.” Cardenas, 13-

0509 at 10.2

 For the court of appeal majority, the rule of statutory interpretation that the 

specific governs over the general, id. at 9 (citing Corbello v. Sutton, 446 So.2d 

301(La. 1984)), meant that respondent’s case, in which he “sought expungement of 

his arrest record”, id. at 6, fell in either the first or second categories to the 

exclusion of the third category because “[t]he present case [did] not involve a 

situation in which the defendant has waited five years since the serving of his 

sentence or probation to seek expungement.” Cardenas, 13-0509 at 11. To this 

extent, R.S. 44:9(A)(1)(b) and (E)(3)(a) were “more directly applicable to the 

present situation and [they] have no limitation on domestic violence cases being 

ineligible for expungement.” Id. The upshot for the majority was that, given the 

remedial purposes of the law, State v. Boniface, 369 So. 2d 115, 116 (La. 1979) 

(“R.S. 44:9 was designed to protect individuals from future harassment and 

embarrassment by virtue of a criminal record . . . . Remedial statutes are liberally 

 

2

 Current Louisiana expungement law distinguishes between the expungement and destruction of 

arrest or conviction records. As specifically defined, expungement “means removal of a record 

from public access but does not mean destruction of the record.” La.R.S. 44:9(G). Thus, while 

La.R.S. 44:9(E)(3)(a) permits a court to expunge or destroy the record of conviction in a 

misdemeanor case that has been dismissed pursuant to La.C.Cr.P. art. 894, it expressly provides 

that a court may not order the destruction of the record for first or second offense D.W.I. The 

legislature does not, however, consistently adhere to the distinction. While La. R.S. 44:9(A)(1) 

provides for the expungement of arrest records under the circumstances defined in (1)(a) and 

(1)(b), (A)(2) states that “[i]f the court finds that the mover is entitled to the relief sought as 

authorized by this Subsection, it shall order all agencies and law enforcement offices having any 

record of the arrest . . .. to destroy any record of arrest . . . .” (emphasis added). La.R.S. 

44:9(A)(2) excludes from its compass only the destruction of arrest records for first or second 

offense D.W.I., consistent with the identical exclusion in (E)(3)(a). Thus, while La.R.S. 

44:9(A)(1) addresses expungement of arrest records, (A)(2) expressly authorizes their 

destruction in all but D.W.I. misdemeanor cases. In the 2014 comprehensive revision (see text, 

infra), Louisiana law will consistently provide for expungement only of arrest and conviction 

records, not their destruction in any case.
5

construed to suppress the evil and to advance the remedy.”) (citation and footnote 

omitted), “the trial court correctly granted defendant’s expungement of his arrest 

record pursuant to La.R.S. 44:9(A)(1).” Cardenas, 13-0509 at 11. The premise for 

the conclusion is that a set aside of a conviction and dismissal of the prosecution 

which “shall have the same effect as an acquittal” as a matter of La.C.Cr.P. art. 

894(B)(2), is an acquittal for purposes of La.R.S. 44:9(A)(1)(b) governing 

expungement of arrest records in cases in which there has been a “dismissal, 

sustaining of a motion to quash, or acquittal.”

 Judge Guidry dissented. In his view, the majority had the case backwards 

when discussing its preference for the specific over the general. The general 

provision for expunging misdemeanor arrest records appears in La.R.S. 

44:9(A)(1)(a), when prosecution is not instituted, or (A)(1)(b) when prosecution 

has been instituted but does not result in a conviction. The general provision for 

expunging conviction records in misdemeanor cases when there has been a 

conviction subsequently set aside under La.C.Cr.P. art. 894 is La.R.S. 

44:9(E)(3)(a). On the other hand, “La.R.S. 44:9(A)(5)(a) relates specifically to 

obtaining expungement of an arrest record after a conviction of a misdemeanor and 

allows for expungement ‘if five or more years have elapsed between the date of the 

motion and the successful completion of any sentence, deferred adjudication, or 

period of probation or parole.’” Id. at 2 (Guidry, J., dissenting). Judge Guidry 

reasoned that the specific provision for expunging arrest records when a conviction 

has been entered is therefore La.R.S. 44:9(A)(5)(a), not (A)(1)(a) or (b), as the 

majority concluded, but under (A)(5)(b), “no person shall be entitled to an 

expungement if the misdemeanor conviction arose from circumstances involving a 

sexual act or act of domestic violence.” Id. Thus, Judge Guidry concluded that 

respondent was “not entitled to seek expungement of his arrest record.” Id. 
6

The majority and dissenting opinions in the First Circuit panel thus 

addressed the district court’s order of September 17, 2012 directing expungement 

of respondent’s record of arrest only, without regard to the earlier order dated 

September 5, 2012, directing expungement of both the arrest and conviction 

records. The ambiguity in the record with respect to the breadth of the district 

court’s order3touches on yet another ambiguity in Louisiana’s expungement law 

adding to our prior expressions of dismay over its convoluted nature.4

 The 

provisions of La.R.S. 44:9(A)(5) originated in 2010 La. Acts 609. The title to the 

act reads as follows: “To enact R.S. 44:9(A)(5) relative to the expungement of 

certain criminal records; to authorize the expungement of certain misdemeanor 

conviction records under certain circumstances; to provide relative to the motion 

for expungement; and to provide for related matters.” (emphasis added). The title 

of an act “may be instructive in determining legislative intent.” Authement v. 

Shappert Engineering, 02-1631, p. 8 (La. 2/25/03), 840 So.2d 1181, 1186; State v. 

Madere, 352 So.2d 666, 668 (La. 1977)(same). But the text of R.S. 44:9(A)(5) 

says nothing about conviction records. It states in pertinent part: 

(5)(a) Any person who has been convicted for the violation of a . . . 

state statute which is classified as a misdemeanor may make a 

written motion to the district . . . court in which the violation was 

prosecuted or to the district court located in the parish in which he 

was arrested, for expungement of the arrest record if five or more 

years has elapsed between the date of the motion and the successful 

 

3

 The state’s original application to this Court specifically adverted to the order dated September 

5, 2012, and argued that the court erred in ordering expungement of respondent’s conviction. 

But the application also referred to the order dated September 17, 2012, and, in fact, attached an 

unsigned copy of it as prepared by counsel. The brief subsequently filed by the state also refers 

to both orders as if they were interchangeable. We understand the state to take the position that 

respondent is simply not entitled to an expungement (to whatever extent) in the present case. For 

his part, respondent poses the issue as whether present law provides for expungement of an arrest 

record following the set-aside of a conviction for domestic abuse battery under La.C.Cr.P. art. 

894.

4

 The legislature implicitly acknowledged as much in 2014 La. Acts 145, signed by the 

Governor into law on May 23, 2014 (effective August 1, 2014), repealing La.R.S. 44:9 in its 

entirety and adding articles 971 through 995 to the Code of Criminal Procedure in a 

comprehensive revision of Louisiana’s expungement law. See text, infra.
7

completion of any sentence, deferred adjudication, or period of 

probation or parole. Notwithstanding the provisions of Code of 

Criminal Procedure Article 892.1 or 894, or any other provision of 

law to the contrary regarding the set aside of a conviction or the 

dismissal of a prosecution, an expungement shall occur only once 

with respect to any person during a five-year period, except in the 

case of a misdemeanor offense of operating a vehicle while 

intoxicated which may occur only once with respect to any person 

during a ten-year period (emphasis added). 

(b) No person shall be entitled to an expungement if the 

misdemeanor conviction arose from circumstances involving a 

sexual act or act of domestic violence. 

* * * 

(d) If, after a contradictory hearing with the district attorney and the 

arresting law enforcement agency, the court finds that the mover is 

entitled to the relief sought for the above reasons, it shall order all 

law enforcement agencies to expunge but not destroy the record of 

the same in accordance with the provisions of this Paragraph. . . . 

 Before the enactment of La.R.S. 44:9(A)(5), the only provision authorizing 

expungement of conviction records was La.R.S. 44:9(E)(3)(a), enacted by 1999 La. 

Acts 1111, which generally authorizes the expungement or destruction of 

conviction records in misdemeanor cases in which the conviction has been set 

aside under La.C.Cr.P. art. 894. The legislature did not provide a definition of 

what it meant by the term “conviction record,” but it did provide that “[u]pon the 

entry of such an order of expungement, all rights which were lost or suspended by 

virtue of the conviction shall be restored to the person against whom the conviction 

has been entered, and such person shall be treated in all respects as not having been 

arrested or convicted unless otherwise provided in this Section or otherwise 

provided in the Code of Criminal Procedure Articles 893 or 894.” La.R.S. 

44:9(E)(3)(b) (former (E)(3)) (emphasis added). Expungement of the conviction 

record as a matter of (E)(3)(a) seemingly encompasses the record of arrest as well, 

just as the district court’s order dated September 5, 2012, provided. See also 

La.R.S. 44:9(I) (“Except for those entities listed in Subsection G of this Section, no 

person whose record of arrest and conviction has been expunged pursuant to the 

provisions of this Section shall be required to disclose that he was arrested or 
8

convicted for the subject offense or that the record of the arrest and conviction has 

been expunged unless otherwise provided in this Section.”) (emphasis added).

The provisions of La.R.S. 44:9(E)(3)(a) did not, however, address extant 

misdemeanor convictions and House Representative Gallot introduced 2010 H.B. 

927, which then became 2010 La. Acts 609, to remedy that situation. In his 

remarks to the House Committee on the Administration of Justice on May 5, 2010, 

and to the Senate Judiciary Committee B on June 8, 2010, Representative Gallot 

explained that the bill would offer an alternative route to expungement for those 

persons who, for one reason or another, did not have the advantage of the set-aside 

provided by La.C.Cr.P. art. 894(B) as the first step towards expungement under 

R.S. 44:9(E)(3)(a). 5

 As originally proposed in House Bill 927, La.R.S. 44:9(A)(5) 

provided the basic rule that any person convicted of a misdemeanor offense may 

apply for an expungement of the record of arrest following the expiration of five 

years from the finality of conviction and sentence. Subsequent amendments in the 

Senate added (A)(5)(b), excluding crimes involving sexual acts or acts of domestic 

violence, and in the House, inserted the language in (A)(5)(a) that 

“[n]otwithstanding the provisions of Code of Criminal Procedure Article 892.1 or 

894, or any other provision of law to the contrary regarding the set aside of a 

conviction or the dismissal of a prosecution, an expungement shall occur only once 

with respect to any person during a five-year period except in the case of a 

misdemeanor offense of operating a vehicle while intoxicated which may occur 

only once with respect to any person during a ten-year period.” A virtually 

identical proviso appears in La.C.Cr.P. art. 894(B)(2), with respect to setting aside 

misdemeanor convictions and dismissing the prosecutions. The amendments thus 

 

5

 In both appearances, Representative Gallot used as an example misbehaving college students 

acquiring a minor misdemeanor record which then may shadow their subsequent careers as they 

finally mature and may hold them back. See: http://house.louisiana.gov/H_video/2010/2010.htm; 

http://senate.lagov/judiciayb/archives/2010/video.htm (accessed May 27, 2014). Expungement 
9

narrowed the scope of Representative Gallot’s original bill by excluding specified 

classes of cases and sharply curtailing the availability of expungement in any given 

five-year period including those cases involving set-asides under La.C.Cr.P. art. 

894. 

Under current law, and at the time the district court issued the expungement 

order(s) in respondent’s case, the latest expression of legislative will with regard to 

expungement of arrest and/or conviction records in misdemeanor cases is not 

La.R.S. 44:9(A), or La.R.S. 44:9(E)(3)(a), but La.R.S. 44:9(A)(5). McLane 

Southern, Inc. v. Bridges, 11-1141, p. 9 (La. 1/24/12), 84 So.3d 479, 485 (“This 

Court has held that it is a fundamental rule of statutory construction that when two 

statutes deal with the same subject matter, if there is a conflict, the statute 

specifically directed to the matter at issue must prevail as an exception to the 

statute more general in character. Further, this Court has provided that the latest 

expression of legislative will is considered controlling and prior enactments in 

conflict are considered as tacitly repealed in the absence of an express repealing 

clause.”)(internal quotation marks and citation omitted). We need not in the present 

case resolve as a general matter any ambiguity in R.S. 44:9(A)(5) whether the 

legislature meant to address expungement of both misdemeanor conviction records 

(as in the title to the act) and arrest records (as in the text of the act). With regard 

to the specific crime of domestic abuse battery, the majority on the First Circuit 

panel failed to take into account the limiting language inserted by the House in 

(A)(5)(a). Under current law, a person may set aside a misdemeanor conviction 

and dismiss the prosecution once during a given five-year period of time as a 

matter of La.C.Cr.P. art. 894(B)(2). He may obtain an expungement in the case of 

a misdemeanor conviction once during the same five-year period of time as a 

 

of the convictions would bring those persons pursuing employment under the umbrella of R.S. 

44:9(I).
10

matter of La.R.S. 44:9(A)(5)(a). A conviction set aside under La.C.Cr.P. art. 

894(B)(2), otherwise subject to expungement under R.S. 44:9(E)(3)(a), counts as 

the one conviction for purposes of La.R.S. 44:9(A)(5)(a). But within this five-year 

period marked out by the legislature, “[n]o person shall be entitled to an 

expungement if the misdemeanor conviction arose from circumstances involving a 

sexual act or act of domestic violence.” La.R.S. 44:9(A)(5)(b) (emphasis added). 

We therefore agree with Judge Guidry that at least in this instance, R.S. 

44:9(A)(5), and specifically (A)(5)(b), as the latest expression of legislative will 

embodied in current law, superseded the earlier provisions of La.R.S. 44:9(A) and 

44:9(E)(3)(a). We further find, consistent with the broad and unqualified language 

of La.R.S. 44:9(A)(5)(b), removing expungement as an alternative in cases 

involving sexual acts or acts of domestic violence, that the district court erred in 

the present case by ordering the expungement of respondent’s record to any extent, 

whether of arrest only or of arrest and conviction. Accordingly, the decision of the 

First Circuit is reversed and, out of an abundance of caution, both orders of 

expungement dated September 5, 2012, and September 17, 2012, are vacated in 

their entirety. 

We note here that during the pendency of the state’s application in this 

Court, the legislature was considering 2014 House Bill 55, which proposed to 

repeal La.R.S.44:9 in its entirety and to enact Title XXXIV of the Code of 

Criminal Procedure to add Articles 971 through 995. That bill, passed by the 

legislature as 2014 La. Acts 145, was signed into law by the Governor on May 23, 

2014, effective August 1, 2014. As now the latest expression of legislative will, 

La.C.Cr.P. art. 977 specifically provides for the expungement (but not destruction) 

of the record of arrest and conviction in misdemeanor cases if: (1) the conviction 

was set aside and the prosecution dismissed pursuant to La.C.Cr.P. art. 894(B); or

(2) more than five years have elapsed since completion of sentence, deferred 
11

adjudication, or period or probation or parole. Further, La.C.Cr.P. art. 977(D)(1) 

provides that expungement of a record of arrest and conviction may occur only 

once with respect to any person during a five-year period, “unless the person was 

sentenced pursuant to Code of Criminal Procedure Article 894(B).” But, “[n]o 

person shall be entitled to expungement of a record under . . . the following 

circumstances . . . (2) The misdemeanor conviction was for domestic abuse battery 

which was not dismissed pursuant to Code of Criminal Procedure Article 894(B).” 

La.C.Cr.P. art. 979(C)(2). We express no opinion here whether respondent may be 

entitled to expungement of his record of arrest and conviction for domestic abuse 

battery under this latest expression of legislative will. 

DECISION OF THE FIRST CIRCUIT REVERSED; ORDERS OF 

EXPUNGEMENT VACATED. 
1 

07/01/14 

SUPREME COURT OF LOUISIANA 

No. 2013-C-2982 

STATE OF LOUISIANA 

versus 

LEONARD CARDENAS, III 

ON WRIT OF REVIEW TO THE COURT OF APPEAL, 

FIRST CIRCUIT, 

PARISH OF EAST BATON ROUGE 

 

HUGHES, J., dissenting. 

I respectfully dissent and would deny the application and affirm the 

decisions of the lower courts.