APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA HONORABLE JON S. FLEMMER Judge
The opinion of the court was delivered by: Wilbur, Justice
[¶1.] Misty Jo Oliver's record contains two misdemeanor convictions. She
asked the trial court to expunge her record of convictions pursuant to SDCL 23A-3-26
through SDCL 23A-3-33 (collectively, "the expungement statutes"). The trial
court granted her request. The State appealed on the grounds that under both the
expungement statutes and the South Dakota Constitution the trial court was
without jurisdiction to expunge records of Oliver's convictions. Because we hold
that the trial court did not have statutory authority to grant the expungement, we
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Oliver was convicted of misdemeanors in 2000 and 2004. In 2011, Oliver filed a motion for expungement in Roberts County, South Dakota. The State appeared at the hearing on the motion but presented no opposition. The trial court granted Oliver's motion and filed an order of expungement.
[¶3.] After the expungement order was filed, the state's attorney's office filed a motion to set aside the order arguing that granting it exceeded the trial court's statutory and constitutional authority. However, because the motion was never served on Oliver's counsel, the trial court could not decide the merits of the motion. The Office of the Attorney General filed a notice of appeal with this Court.
[¶4.] Despite the State's acquiescence to the motion for expungement, we may consider this issue for the first time on appeal because we are asked to determine whether the trial court acted beyond its constitutional and statutory jurisdiction. See State v. Neitge, 2000 S.D. 37, ¶ 9, 607 N.W.2d 258, 260 (citing State v. Haase, 446 N.W.2d 62, 64 (S.D. 1989)).
[¶5.] Issues of statutory and constitutional interpretation are questions of law. Gray v. Gienapp, 2007 S.D. 12, ¶ 15, 727 N.W.2d 808, 812. We review the interpretation and application of each de novo. See State v. Goulding, 2011 S.D. 25, ¶ 5, 799 N.W.2d 412, 414 ("Statutory interpretation and application are questions of law that we review do novo."); Kraft v. Meade Cnty. ex rel. Bd. of Cnty. Comm'rs, 2006 S.D. 113, ¶ 2, 726 N.W.2d 237, 239 ("Constitutional interpretation is a question of law reviewable de novo.").
Statutory Analysis [¶6.] In conducting statutory interpretation, "[w]e give words their plain meaning and effect, and read statutes as a whole . . . ." State v. Miranda, 2009 S.D. 105, ¶ 14, 776 N.W.2d 77, 81. "[R]esorting to legislative history is justified only when legislation is ambiguous, or its literal meaning is absurd or unreasonable." In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984).
[¶7.] The parties dispute the meaning of SDCL 23A-3-27. The statute, titled "Motion for expungement of arrest record" provides:
An arrested person may apply to the court that would have jurisdiction over the crime for which the person was arrested, for entry of an order expunging the record of the arrest after one year from the date of any arrest, if no accusatory instrument was filed, or at any time after an acquittal. (Emphasis added.)
[¶8.] The State and Oliver set forth divergent readings of the statute. The State argues that the plain language of SDCL 23A-3-27 limits a court's authority to grant an expungement to: (1) individuals who have been arrested but have never been charged with a crime; and (2) individuals who have been acquitted. In contrast, Oliver argues that SDCL 23A-3-27 does not limit a court's authority to grant an expungement, but rather establishes when certain individuals may seek expungement. Specifically, under Oliver's reading of the statute, an arrested person, "if no accusatory instrument was filed," may apply to have records expunged "one year from the date of arrest" and an acquitted person may apply for expungement "at anytime after ...