dissenting. In our opinion of October 6, 2004, we reversed and remanded appellant’s sexual-abuse conviction on the grounds that an expunged conviction was introduced against him pursuant to the pedophile exception. I would grant rehearing because I believe we erred in concluding that appellant proved that his conviction had in fact been expunged.
At trial, the State offered evidence that appellant had previously been convicted of sexually abusing the child victim in this case. Appellant objected, asserting that his prior conviction for sexual abuse of the child had' been expunged, and arguing that expungement of a Youthful Offender/Act 346 of 1975 conviction meant that it never existed, indeed that it was deemed as a matter of law that the underlying conduct never even occurred. In our prior opinion, we agreed, relying specifically upon Ark. Code Ann. § 16-90-902 (Supp. 2003).
Our prior opinion, however, was wrong because we failed to take into account that Ark. Code Ann. § 16-90-902 was not effective unless and until the trial court entered “the uniform order to seal” the records. That section provides that:
(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored, shall be completely exonerated, and the record which has been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.
(b) Upon the entry of the uniform order to seal records of an individual, the individual’s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.
(Emphasis added.) Here, the record fails to disclose that any such uniform order1 was entered as to appellant’s prior conviction. Because ”[n]o order to seal or expunge records covered by this subchapter shall be effective unless the uniform order is entered,” Ark. Code Ann. § 16-90-905 (a) (2), appellant failed to show that his prior conviction had been expunged.2 This is crucial, because our prior opinion is squarely based on our mistaken assumption that he had so shown. Because of our mistake, we wrongly reversed appellant’s conviction of sexually abusing a child.
The burden of bringing up a record sufficient to demonstrate reversible error clearly rests upon the appellant. See Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001). According to Ark. Code Ann. § 16-90-905, without a uniform order to seal, appellant is not entitled to the benefits or protections of Ark. Code Ann. § 16-90-902. Because appellant failed to bring up a record showing that such an order was entered, our reliance on the broad effects of Ark. Code Ann. § 16-90-902 was misplaced. I believe that we therefore erred in reversing appellant’s conviction of first-degree sexual abuse, and that we should grant rehearing and correct our error.
The required form and contents of a uniform order to seal records is the subject of Ark. Code Ann. § 16-90-905(a) (Supp. 2003).
“As used in ... §§ 16-93-301 — 16-93-303 [Act 346 of 1975] ...,‘expunge’ shall mean that the record or records in question shall be sealed, sequestered, and treated as confidential in accordance with the procedures established by this subchapter.” Ark. Code Ann. § 16-90-901(a)(l) (Supp. 2003) (emphasis added).