How can my husband have his crimnial record from 15 years ago expunged?
Full Question:
My husband was convicted of B&E when he was sixteen years old. He pulled his time and got out on parole/probation. He was catching chickens for a living when he got out of prison and his probation officer came and picked him up and sent him back to prison because he said that catching chickens was not a job. He had to go back in as a probation revocation and I believe he had to pull 15 more months for it. I was wanting to know if his record can be expunged.
11/21/2007 |
Category: Criminal ยป Expungement ... |
State: North Carolina |
#12692
Answer:
The following are North Carolina statutes:
§ 15A-145. Expunction of records for first offenders under the age of 18 at the time of conviction of misdemeanor; expunction of certain other misdemeanors.
(a) Whenever any person who has (i) not yet attained the age of 18
years and has not previously been convicted of any felony, or misdemeanor
other than a traffic violation, under the laws of the United States, the
laws of this State or any other state, pleads guilty to or is guilty of a
misdemeanor other than a traffic violation, or (ii) not yet attained the
age of 21 years and has not previously been convicted of any felony, or
misdemeanor other than a traffic violation, under the laws of the United
States, the laws of this State or any other state, pleads guilty to or is
guilty of a misdemeanor possession of alcohol pursuant to G.S.
18B-302(b)(1), he may file a petition in the court where he was convicted
for expunction of the misdemeanor from his criminal record. The petition
cannot be filed earlier than two years after the date of the conviction
or any period of probation, whichever occurs later, and the petition
shall contain, but not be limited to, the following:
(1) An affidavit by the petitioner that he has been of good behavior
for the two-year period since the date of conviction of the misdemeanor
in question and has not been convicted of any felony, or misdemeanor
other than a traffic violation, under the laws of the United States or
the laws of this State or any other state.
(2) Verified affidavits of two persons who are not related to the
petitioner or to each other by blood or marriage, that they know the
character and reputation of the petitioner in the community in which he
lives and that his character and reputation are good.
(3) A statement that the petition is a motion in the cause in the case
wherein the petitioner was convicted.
(4) Affidavits of the clerk of superior court, chief of police, where
appropriate, and sheriff of the county in which the petitioner was
convicted and, if different, the county of which the petitioner is a
resident, showing that the petitioner has not been convicted of a felony
or misdemeanor other than a traffic violation under the laws of this
State at any time prior to the conviction for the misdemeanor in question
or during the two-year period following that conviction.
(5) An affidavit by the petitioner that no restitution orders or civil
judgments representing amounts ordered for restitution entered against
him are outstanding.
The petition shall be served upon the district attorney of the court
wherein the case was tried resulting in conviction. The district attorney
shall have 10 days thereafter in which to file any objection thereto and
shall be duly notified as to the date of the hearing of the petition.
The judge to whom the petition is presented is authorized to call upon
a probation officer for any additional investigation or verification of
the petitioner's conduct during the two-year period that he deems
desirable.
(b) If the court, after hearing, finds that the petitioner had remained
of good behavior and been free of conviction of any felony or
misdemeanor, other than a traffic violation, for two years from the date
of conviction of the misdemeanor in question, the petitioner has no
outstanding restitution orders or civil judgments representing amounts
ordered for restitution entered against him, and (i) petitioner was not
18 years old at the time of the conviction in question, or (ii)
petitioner was not 21 years old at the time of the conviction of
possession of alcohol pursuant to G.S. 18B-302(b)(1), it shall order that
such person be restored, in the contemplation of the law, to the status
he occupied before such arrest or indictment or information. No person as
to whom such order has been entered shall be held thereafter under any
provision of any laws to be guilty of perjury or otherwise giving a false
statement by reason of his failure to recite or acknowledge such arrest,
or indictment, information, or trial, or response to any inquiry made of
him for any purpose.
(c) The court shall also order that the said misdemeanor conviction, or a civil
revocation of a drivers license as the result of a
criminal charge, be expunged from the records of the court, and direct
all law-enforcement agencies, including the Division of Motor
Vehicles, bearing record of the same to expunge their records of the
conviction or a civil revocation of a drivers license as the
result of a criminal charge. This subsection does not apply to civil or
criminal charges based upon the civil revocation, or to civil revocations
under G.S. 20-16.2. The clerk shall forward a certified copy of the order
to the sheriff, chief of police, or other arresting agency. The clerk
shall forward a certified copy of the order to the Division of Motor
Vehicles for the expunction of a civil revocation provided the underlying
criminal charge is also expunged. The civil revocation of a drivers
license shall not be expunged prior to a final disposition of any pending
civil or criminal charge based upon the civil revocation. The sheriff,
chief or head of such other arresting agency shall then transmit the copy
of the order with a form supplied by the State Bureau of Investigation to
the State Bureau of Investigation, and the State Bureau of Investigation
shall forward the order to the Federal Bureau of Investigation.
(d) The clerk of superior court in each county in North Carolina
shall, as soon as practicable after each term of court in his county,
file with the Administrative Office of the Courts, the names of those
persons granted a discharge under the provisions of this section, and the
Administrative Office of the Courts shall maintain a confidential file
containing the names of persons granted conditional discharges. The
information contained in such file shall be disclosed only to judges of
the General Court of Justice of North Carolina for the purpose of
ascertaining whether any person charged with an offense has been
previously granted a discharge.
(e) A person who files a petition for expunction of a criminal record
under this section must pay the clerk of superior court a fee of one
hundred twenty-five dollars ($125.00) at the time the petition is filed.
Fees collected under this subsection shall be deposited in the General
Fund. This subsection does not apply to petitions filed by an indigent.
§ 15A-146. Expunction of records when charges are dismissed or there are findings of not guilty.
(a) If any person is charged with a crime, either a misdemeanor or a
felony, or was charged with an infraction under G.S. 18B-302(i) prior to
December 1, 1999, and the charge is dismissed, or a finding of not guilty
or not responsible is entered, that person may apply to the court of the
county where the charge was brought for an order to expunge from all
official records any entries relating to his apprehension or trial. The
court shall hold a hearing on the application and, upon finding that the
person had not previously received an expungement under this section,
G.S. 15A-145, or G.S. 90-96, and that the person had not previously been
convicted of any felony under the laws of the United States, this State,
or any other state, the court shall order the expunction. No person as to
whom such an order has been entered shall be held thereafter under any
provision of any law to be guilty of perjury, or to be guilty of otherwise
giving a false statement or response to any inquiry made for any
purpose, by reason of his failure to recite or acknowledge any expunged
entries concerning apprehension or trial.
(a1) Notwithstanding subsection (a) of this section, if a person is
charged with multiple offenses and all the charges are dismissed, or
findings of not guilty or not responsible are made, then a person may
apply to have each of those charges expunged if the offenses occurred
within the same 12-month period of time or if the charges are dismissed
or findings are made at the same term of court. Unless circumstances
otherwise clearly provide, the phrase "term of court" shall mean one week
for superior court and one day for district court. There is no
requirement that the multiple offenses arise out of the same transaction
or occurrence or that the multiple offenses were consolidated for
judgment. The court shall hold a hearing on the application. If the court
finds that the person had not previously received an expungement under
this subsection, that the person had not previously received an
expungement under G.S. 15A-145 or G.S. 90-96, and that the person had not
previously been convicted of any felony under the laws of the United
States, this State, or any other state, the court shall order the
expunction. No person as to whom such an order has been entered shall be
held thereafter under any provision of any law to be guilty of perjury,
or to be guilty of otherwise giving a false statement or response to any
inquiry made for any purpose, by reason of his failure to recite or
acknowledge any expunged entries concerning apprehension or trial.
(b) The court may also order that the said entries, including
civil revocations of drivers licenses as a result of the underlying
charge, shall be expunged from the records of the court, and direct all
law-enforcement agencies, including the Division of Motor
Vehicles, bearing record of the same to expunge their records of the
entries, including civil revocations of drivers licenses as a
result of the underlying charge being expunged. This subsection does not
apply to civil or criminal charges based upon the civil revocation, or to
civil revocations under G.S. 20-16.2. The clerk shall forward a certified
copy of the order to the sheriff, chief of police, or other arresting
agency. The clerk shall forward a certified copy of the order to the
Division of Motor Vehicles for the expunction of a civil revocation
provided the underlying criminal charge is also expunged. The civil
revocation of a drivers license shall not be expunged prior to a final
disposition of any pending civil or criminal charge based upon the civil
revocation. The sheriff, chief or head of such other arresting agency
shall then transmit the copy of the order with the form supplied by the
State Bureau of Investigation to the State Bureau of Investigation, and
the State Bureau of Investigation shall forward the order to the Federal
Bureau of Investigation. The costs of expunging these records shall not
be taxed against the petitioner.
(b1) Any person entitled to expungement under this section may also
apply to the court for an order expunging DNA records when the person's
case has been dismissed by the trial court and the person's DNA record or
profile has been included in the State DNA Database and the person's DNA
sample is stored in the State DNA Databank. A copy of the application for
expungement of the DNA record or DNA sample shall be served on the
district attorney for the judicial district in which the felony charges
were brought not less than 20 days prior to the date of the hearing on
the application. If the application for expungement is granted, a
certified copy of the trial court's order dismissing the charges shall be
attached to an order of expungement. The order of expungement shall
include the name and address of the defendant and the defendant's
attorney and shall direct the SBI to send a letter documenting
expungement as required by subsection (b2) of this section.
(b2) Upon receiving an order of expungement entered pursuant to
subsection (b1) of this section, the SBI shall purge the DNA record and
all other identifying information from the State DNA Database and the DNA
sample stored in the State DNA Databank covered by the order, except that
the order shall not apply to other offenses committed by the individual
that qualify for inclusion in the State DNA Database and the State DNA
Databank. A letter documenting expungement of the DNA record and
destruction of the DNA sample shall be sent by the SBI to the defendant
and the defendant's attorney at the address specified by the court in the
order of expungement.
(c) The Clerk of Superior Court in each county in North Carolina
shall, as soon as practicable after each term of court in his county,
file with the Administrative Office of the Courts, the names of those
persons granted an expungement under the provisions of this section and
the Administrative Office of the Courts shall maintain a confidential
file containing the names of persons granted such expungement. The
information contained in such files shall be disclosed only to judges of
the General Court of Justice of North Carolina for the purpose of
ascertaining whether any person charged with an offense has been
previously granted an expungement.
§ 15A-149. Expunction of records when pardon of innocence is granted.
(a) If any person is convicted of a crime and receives a pardon of
innocence, the person may apply by petition or written motion to the
court in which the person was convicted on a form approved by the
Administrative Office of the Courts supplied by the clerk of court for an
order to expunge from all official records any entries relating to the
person's apprehension, charge, or trial. Upon receipt of the petition or
written motion, the clerk of court shall verify that an attested copy of
the warrant and return granting a pardon of innocence has been filed with
the court in accordance with G.S. 147-25. Upon verification by the clerk
that the warrant and return have been filed, the court shall issue an
order of expunction.
(b) The order of expunction shall include an instruction that any
entries relating to the person's apprehension, charge, or trial shall be
expunged from the records of the court and direct all law enforcement
agencies, the Division of Motor Vehicles, or any other State or local
government agencies bearing record of the same to expunge their records
of the entries. The clerk shall forward a certified copy of the order to
the sheriff, chief of police, or other charging agency; and, when
applicable, to the Division of Motor Vehicles and any other State or local
agency. The sheriff, chief, or head of such other charging agency shall
then transmit the copy of the order with the form supplied by the State
Bureau of Investigation to the State Bureau of Investigation, and the
State Bureau of Investigation shall forward the order to the Federal
Bureau of Investigation. Upon receipt of a certified copy of the order,
the agency must purge its records as required by this section. The costs
of expunging these records shall not be taxed against the petitioner.
(c) No person as to whom such an order has been entered under this
section shall be held thereafter under any provision of any law to be
guilty of perjury, or to be guilty of otherwise giving a false statement
or response to any inquiry made for any purpose, by reason of the
person's failure to recite or acknowledge any expunged entries concerning
apprehension, charge, or trial.