If you plead nolo contender can you get charges expunged?

Full Question:

If you pled guilty conditionally under TCA 40-35-313 nolo contender, can you get charges expunged?
02/23/2009   |   Category: Criminal ยป Expungement ...   |   State: Tennessee   |   #15338

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.

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