If you plead nolo contender can you get charges expunged?

02/23/2009 - Category:Criminal - Expungement of Criminal Records - State: TN #15338

Full Question:

If you pled guilty conditionally under TCA 40-35-313 nolo contender, can you get charges expunged?

Answer:

Expungement may be available to a person whose case was dismissed and the proceedings against the person discharged under TCA § 40-35-313, except if the discharge and dismissal was for a sexual offense.

The following are TN statutes:

40-35-313. Probation — Conditions — Discharge — Expunction from official records.
(a)(1)(A) The court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant. The deferral shall be for a period of time not less than the period of the maximum sentence for the misdemeanor with which the person is charged, or not more than the period of the maximum sentence of the felony with which the person is charged. The deferral is conditioned upon the defendant paying an amount to be determined by the court of not less than ten dollars ($10.00) nor more than thirty-five dollars ($35.00) per month as part payment of expenses incurred by the agency, department, program, group or association in supervising the defendant, and upon the defendant paying any or all additional costs of the defendant's supervision, counseling or treatment in a specified manner, based upon the defendant's ability to pay. The payments shall be made to the clerk of the court in which proceedings against the defendant were pending, who shall send the payments to the agency, department, program, group or association responsible for the supervision of the defendant, unless the defendant is found to be indigent and without anticipated future funds with which to make the payment. The clerk of the court collecting the payment is permitted to retain five percent (5%) of the proceeds collected for the handling and receiving of the proceeds as provided in this subdivision (a)(1)(A).
(B)(i) As used in this subsection (a), "qualified defendant" means a defendant who:
(a) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;
(b) Is not seeking deferral of further proceedings for a sexual offense, a violation of § 71-6-117 or § 71-6-119, or a Class A or Class B felony; and
(c) Has not previously been convicted of a felony or a Class A misdemeanor.
(ii) As used in subdivision (a)(1)(B)(i), "sexual offense" means conduct that constitutes:
(a) Aggravated prostitution, as described in § 39-13-516;
(b) Aggravated rape, as described in § 39-13-502;
(c) Aggravated sexual battery, as described in § 39-13-504;
(d) Aggravated sexual exploitation of a minor, as described in § 39-17-1004;
(e) Attempt, as described in § 39-12-101, solicitation, as described in § 39-12-102, or conspiracy, as described in § 39-12-103, to commit any of the offenses enumerated in this subdivision (a)(1)(B)(ii);
(f) Especially aggravated sexual exploitation of a minor, as described in § 39-17-1005;
(g) Rape, as described in § 39-13-503;
(h) Rape of a child, as described in § 39-13-522;
(i) Sexual battery by an authority figure, as described in § 39-13-527;
(j) Sexual exploitation of a minor, as described in § 39-17-1003; or
(k) Statutory rape by an authority figure, as described in § 39-13-532.
(2) The provisions of this subsection (a) relative to the payment of a supervision fee shall not apply to any person subject to the provisions of chapter 28, part 2 of this title. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. If, during the period of probation, the person does not violate any of the conditions of the probation, then upon expiration of the period, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this subsection (a) is without court adjudication of guilt, but a non-public record thereof is retained by the court solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, the person qualifies under this subsection (a), or for the limited purposes provided in subsections (b) and (c). The discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose, except as provided in subsections (b) and (c). Discharge and dismissal under this subsection (a) may occur only once with respect to any person.
(3)(A) No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court on or after July 1, 1998, unless there is attached to it a certificate from the Tennessee bureau of investigation stating that the defendant does not have a prior felony or Class A misdemeanor conviction. No order deferring further proceedings and placing the defendant on probation as authorized by this subsection (a) may be entered by the court if the defendant was charged with a violation of a criminal statute the elements of which constitute abuse, neglect or misappropriation of the property of a vulnerable person as defined in § 68-11-1004(a) on or after July 1, 2004, unless the order contains a provision that the defendant agrees without contest or any further notice or hearing that the defendant's name shall be permanently placed on the registry governed by § 68-11-1004 a copy of which shall be forwarded to the department of health.
(B) The certificate provided by the bureau pursuant to this section is only a certification that according to its expunged criminal offender and pretrial diversion database the defendant is not disqualified from deferral and probation under this section by virtue of a prior felony or Class A misdemeanor conviction. The certificate is not a certification that the defendant is eligible for the deferral and probation, and it shall continue to be the duty of the district attorney general, and judge to make sufficient inquiry into the defendant's background to determine eligibility.
(b) Upon the dismissal of the person and discharge of the proceedings against the person under subsection (a), the person may apply to the court for an order to expunge from all official records, other than the non-public records to be retained by the court under subsection (a) and the public records that are defined in § 40-32-101(b), all recordation relating to the person's arrest, indictment or information, trial, finding of guilty, and dismissal and discharge pursuant to this section; provided, that no records of a person who is dismissed from probation and whose proceedings are discharged pursuant to this section shall be expunged if the offense for which deferral and probation was granted was a sexual offense as defined by § 40-39-102(5) [repealed]. Each application shall contain a notation by the clerk evidencing that all court costs are paid in full, prior to the entry of an order of expunction. If the court determines, after hearing, that the person was dismissed and the proceedings against the person discharged, it shall enter the order. The effect of the order is to restore the person, in the contemplation of the law, to the status the person occupied before the arrest or indictment or information. No person as to whom the order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of the person's failures to recite or acknowledge the arrest, or indictment or information, or trial in response to any inquiry made of the person for any purpose, except when the person who has been availed of the privileges of expunction then assumes the role of plaintiff in a civil action based upon the same transaction or occurrence as the expunged criminal record. In that limited situation, notwithstanding any provision of this section or § 40-32-101(a)(3)-(c)(3) to the contrary, the non-public records are admissible for the following purposes:
(1) A plea of guilty is admissible into evidence in the civil trial as a judicial admission; and
(2) A verdict of guilty by a judge or jury is admissible into evidence in the civil trial as either a public record or is admissible to impeach the truthfulness of the plaintiff. In addition, the non-public records retained by the court, as provided in subsection (a), shall constitute the official record of conviction and are subject to the subpoena power of the courts of civil jurisdiction.
(c) Notwithstanding the provisions of this section or § 40-32-101(a)(3)-(c)(3) to the contrary, a plea of guilty or a verdict of guilty by a judge or jury for a criminal felony offense involving an act of terrorism or any other felony offense involving violence, coercion, dishonesty or the disruption of the operations of a state or local government is admissible into evidence in a civil action for the purpose of impeaching the truthfulness, veracity or credibility of a witness if the plea or verdict occurred within ten (10) years of the date the evidence is sought to be admitted and the witness is a party to the civil action. The plea or verdict is admissible for the purposes set out in this subsection (c) notwithstanding the fact that the public records of the plea or verdict have been expunged pursuant to this section either prior to or after the commencement of the civil action at which the plea or verdict is sought to be admitted. In addition, the non-public records retained by the court, Tennessee bureau of investigation or a local law enforcement agency shall constitute official records of plea or verdict and are subject to the subpoena power of the courts of civil jurisdiction.
(d)(1) Any court dismissing charges against a person and ordering the expunction of a person's public records following the discharge of proceedings pursuant to this section after October 1, 1998, shall send or cause to be sent a copy of the dismissal and expunction order to the Tennessee bureau of investigation for entry into its expunged criminal offender and pretrial diversion database; provided, however, the court shall not be required to send to the bureau a copy of any dismissal and expunction order dated on or after July 1, 1999, if the charge dismissed is classified as a Class B or C misdemeanor. The order shall contain the name of the person seeking dismissal and expunction, the person's date of birth and social security number, the offense that was dismissed and the date the dismissal and expunction order is entered.
(2) A defendant applying to a court for expunction of the defendant's records following successful completion of the diversion program authorized by this section shall be assessed a fifty dollar ($50.00) fee. The fee shall be transmitted by the clerk of the court to the state treasurer for deposit in the special fund established in § 40-32-101(d).
40-32-101. Destruction or release of records.
(a)(1)(A) All public records of a person who has been charged with a misdemeanor or a felony shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:
(i) The charge has been dismissed;
(ii) A no true bill was returned by a grand jury;
(iii) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
(iv) The person was arrested and released without being charged.
(B) A person applying for the expunction of records because the charge or warrant was dismissed in any court as a result of the successful completion of a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, shall be charged the appropriate court clerk's fee pursuant to § 8-21-401 for destroying such records.
(C) A person applying to a court after October 1, 1998, for the expunction of the persons records following the successful completion of a judicial diversion program authorized by § 40-35-313 shall be charged a fee of fifty dollars ($50.00). The fee shall be transmitted and used in the manner set out in § 40-35-313(d)(2).
(D) Notwithstanding the provisions of subdivisions (a)(1)(B) and (C), the records of a person who successfully completes a pretrial diversion program pursuant to §§ 40-15-102 — 40-15-107, or a judicial diversion program pursuant to § 40-35-313, shall not be expunged pursuant to this section, if the offense for which the person was diverted was a sexual offense as defined by § 40-39-202, or a violent sexual offense as defined by § 40-39-202.
(E) A person shall not be entitled to the expunction of such person's records in a particular case if the person is convicted of any offense or charge, including a lesser included offense or charge.
(2) All public records of a person required to post bond under § 38-3-109 or § 38-4-106 [repealed] shall be removed and destroyed as required by this chapter upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond.
(3) Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.
(4) For purposes of this section, "court" includes any court exercising juvenile jurisdiction.
(5) All public records concerning an order of protection authorized by title 36, chapter 3, part 6, which was successfully defended and denied by the court following a hearing conducted pursuant to § 36-3-605, shall, upon petition by that person to the court denying the order, be removed and destroyed without cost to the person.
(b)(1) "Public records," for the purpose of expunction only, does not include arrest histories, investigative reports, intelligence information of law enforcement agencies, or files of district attorneys general that are maintained as confidential records for law enforcement purposes and are not open for inspection by members of the public and shall also not include records of the department of children's services or department of human services that are confidential under state or federal law and that are required to be maintained by state or federal law for audit or other purposes. Whenever an order of expunction issues under this section directed to the department of children's services or department of human services, the department shall notify the defendant if there are records required to be maintained as directed above and the basis therefor. The department shall delete identifying information in these records whenever permitted by state or federal law. These records are to be expunged whenever their maintenance is no longer required by state or federal law.
(2) "Public records", for the purpose of expunction only, does not include appellate court records or appellate court opinions.
(c)(1) Release of confidential records or information contained therein other than to law enforcement agencies for law enforcement purposes shall be a Class A misdemeanor.
(2) This section shall not be construed to deny access to any record to the comptroller of the treasury or the comptroller of the treasury's agent for purposes of audit investigation; the comptroller of the treasury or the comptroller of the treasury's agent having this access shall protect the confidential nature of the records that are not otherwise public under other statutes.
(3) Release of arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding shall be made to the attorney upon request.
(d)(1) Any court ordering the expunction of a person's public records of a criminal offense, including orders issued as a result of the successful completion of a diversion program pursuant to §§ 40-15-105 and 40-15-106 or judicial diversion program, shall send or cause to be sent a copy of the expunction order to the Tennessee bureau of investigation for entry into its expunged offender and pretrial diversion database. The order shall contain the name of the person seeking expunction, the person's date of birth and social security number, the offense that was dismissed, the date and cause of the dismissal and the date the order of expunction is entered.
(2) After April 25, 2000, a defendant petitioning a court for expunction of records because the charge against the person was dismissed as a result of the successful completion of a diversion program pursuant to §§ 40-15-102 — 40-15-106 shall be assessed a fifty dollar ($50.00) fee. The fifty dollar ($50.00) fee shall not apply to any case where there has been an acquittal, nolle prosequi, or dismissal for failure to prosecute or where the law does not require a copy of the expunction order be sent to the Tennessee bureau of investigation. The fee shall be transmitted by the clerk of the court to the state treasurer for deposit in a special fund to be used by the Tennessee bureau of investigation for the exclusive purpose of establishing and maintaining the expunged criminal offender and pretrial diversion database. The moneys received in the fund shall be invested for the benefit of the fund by the state treasurer pursuant to § 9-4-603. Amounts in the fund shall not revert to the general fund of the state but shall, together with interest income credited to the fund, remain available for expenditure in subsequent fiscal years.
(e) It is the intent of the general assembly that no fee ever be charged a person who is petitioning a court for expunction of records because:
(1) The charge against the person was dismissed for a reason other than the successful completion of a diversion program pursuant to §§ 40-15-102 — 40-15-106 or § 40-35-313;
(2) A no true bill was returned by a grand jury;
(3) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury; or
(4) The person was arrested and released without being charged.
(f)(1) All public records of a person who has been charged and convicted with a misdemeanor or felony while protesting or challenging a state law or municipal ordinance whose purpose was to maintain or enforce racial segregation or racial discrimination shall, upon petition by that person to the court having jurisdiction in the previous action, be removed and destroyed without cost to the person, if:
(A) The charge has been dismissed;
(B) A no true bill was returned by a grand jury;
(C) A verdict of not guilty was returned, whether by the judge following a bench trial or by a jury;
(D) The person was arrested and released, without being charged; or
(E)(i) Thirty-seven (37) years or more have elapsed since the date of conviction for the offense being expunged and the petitioner has not been convicted of any other offense, excluding minor traffic violations, during that period of time;
(ii) Any period of supervision due to conviction has been completed;
(iii) The offense was a misdemeanor, Class C, D or E felony not otherwise excluded pursuant to subdivision (f)(1)(E)(iv), or, if committed prior to November 1, 1989, would be an included Class C, D, or E felony if committed after November 1, 1989;
(iv) The offense was not a Class A or Class B felony or a Class C felony described in § 40-15-105(a)(1)(B)(iii), a sexual offense described in § 40-15-105(a)(1)(B)(ii), or an offense prohibited by title 55, chapter 10, part 4, vehicular assault as prohibited by § 39-13-106, or if committed prior to November 1, 1989, would not be an excluded offense if committed after November 1, 1989; and
(v) The district attorney general is served a copy of the petition for expungement by certified mail, return receipt requested, and the district attorney general does not file an objection with the court within twenty (20) calendar days of receipt of the petition.
(2) All public records of a person required to post bond under § 38-3-109 shall be removed and destroyed as required by this section upon the expiration of any bond required, if no surety on the bond is required to fulfill the obligations of the bond.
(3) Upon petition by a defendant in the court that entered a nolle prosequi in the defendant's case, the court shall order all public records expunged.
(4) For purposes of this subsection (f), "court" includes any court exercising juvenile jurisdiction.
(5) If the person charged or convicted is deceased, the petition may be filed by a person who is able to establish legal authority to act on the behalf of the deceased person.
(6) Notwithstanding any law to the contrary, upon request of the petitioner, records or documents subject to the destruction requirement of this subsection (f) that are utilized exclusively for education purposes and are displayed in public museums, libraries, and buildings are exempt from the destruction requirement.


Please see the information at the following links:

http://lawdigest.uslegal.com/expungement-of-criminal-records/general/6551/
http://definitions.uslegal.com/c/criminal-law-and-procedure-expungement/
http://definitions.uslegal.com/n/nolo-contendre/

Please see the forms at the following links:

http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-TN-B-expun

02/23/2009 - Category: Expungement of Criminal Records - State: TN #15338

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