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MISSISSIPPI EXPUNGEMENT LAW SUMMARY

MISSISSIPPI EXPUNGEMENT LAW SUMMARY

BY: Geoffrey Calderaro

A criminal record can create many challenges when trying to move forward with your life.  When an arrest is made, a record is also created that others may find – even if the charge is later dismissed.  This most frequently occurs when one applies for a job requiring a background check.  A criminal record or prior arrest can be a barrier to achieving one’s goals in many other instances, such as gaining acceptance to certain schools or universities and in obtaining loans to name a few.  In many instances, these prior arrests or convictions can be “erased” through the expungement process

If you have a prior arrest or conviction, please contact us at (662) 234-8775 to discuss the possibility of expungement with one of our attorneys or you may email Geoffrey Calderaro at gcalderaro@holcombdunbar.com.

 

WHAT IS AN EXPUNGEMENT?

Under Mississippi law, an expungement removes “all records relating to an arrest, indictment, trial, and finding of guilt, in order to restore one to the status occupied prior thereto….” Stallworth v. State, 160 So. 3d 1161, 1163 (Miss. 2015). Thus, at the moment an expungement is granted, the law provides that you are restored to the status you occupied before you were convicted.

Simply put, an expungement is a legal way to “clear your record.”  Only a nonpublic record of the offense or arrest is retained by the Mississippi Criminal Information Center, which is used for determining in subsequent proceedings if you are a first offender.   As a result, after expungement, employers should not be able to find your previous conviction when conducting a background check.

By statute, the expungement is designed to restore you to the same “status” as you had before the arrest and charge.  In addition, under Mississippi law, you may not be found guilty of perjury for failure to recite or acknowledge your arrest or conviction in most circumstances.

SO WHAT CAN BE EXPUNGED?

MISDEMEANOR EXPUNGEMENT

If you have ever been arrested or charged with a misdemeanor offense in Mississippi, contact us at your convenience to discuss your options for obtaining an expungement.  There are several methods to expunge a misdemeanor charge from your record in Mississippi, including the following:

Expungement of First Offense

By statute in Mississippi, “Any person who is convicted of a misdemeanor, excluding a conviction for a traffic violation, and who is a first offender, may petition the justice, county, circuit or municipal court in which the conviction was had for an order to expunge any such conviction from all public records.”  Miss. Code Ann. § 99-19-71.

In some instances a person may seek the expungement of additional misdemeanor convictions obtained in justice court and municipal court.  Miss. Code Ann. § 9-11-15(3) and Miss. Code Ann. § 21-23-7(6) provide that upon prior notice to the prosecuting attorney and upon a showing in open court of (1) rehabilitation, (2) good conduct for a period of 2 years since the last conviction in any court and (3) that the best interest of society would be served, the court may, in its discretion, order the record of conviction of a person of any or all misdemeanors in that court expunged. Once the expungement is granted, the petitioner legally stands as though he had never been convicted of the said misdemeanor(s) and may lawfully so respond to any query of prior convictions.

Expungement after Nonadjudication

When a misdemeanor charge has been nonadjudicated, Mississippi law provides that upon successful completion of court-imposed conditions, the charge is to be dismissed.  Upon dismissal, and in other circumstances, the law directs the Court to expunge the record upon petition to the Court.

Expungement after Dismissal or Case Retired to File

Upon petition to the Court, Mississippi law requires the Court to expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of the case. Miss. Code Ann. § 99-19-71(4); Miss. Code Ann. § 21-23-7(12)

Expungement of Minor in Possession Charge

In addition to expungement under one of the methods discussed above, a minor in possession or “MIP” conviction can be expunged in certain circumstances by separate statute “not sooner than one (1) year after the dismissal of the charge or completion of any sentence and/or payment of any fine.”  Miss. Code Ann. § 67-3-70(6).

DUI EXPUNGEMENT

Any person convicted of a first offense DUI under Miss. Code Ann. § 63-11-30(2) or (3), who was not the holder of a commercial driver’s license or commercial learning permit at the time of the offense, may petition the circuit court of the county of conviction for an order to expunge the record of the conviction, at least five (5) years after the successful completion of all terms and conditions of the sentence imposed, if that person:

(i) has successfully completed all terms and conditions of the sentence imposed for the conviction;

(ii) did not refuse to submit to a test of his blood or breath;

(iii) had a blood alcohol concentration tested below sixteen one-hundredths percent (.16%) if test results are available;

(iv) has not been convicted of and does not have pending any other offense of driving under the influence;

(v) has provided the court with justification as to why the conviction should be expunged; and

(vi) has not previously had a nonadjudication or expunction of a violation of this section.

 

FELONY EXPUNGEMENT

Many felony charges can also be expunged – even after a guilty plea or conviction.  And like misdemeanors, any felony charge that was dismissed, not prosecuted or in which you were found not guilty can be expunged.

If you have had a previous felony arrest or conviction, please contact us at (662) 234-8775 to discuss the possibility of expungement with one of our attorneys or you may email Geoffrey Calderaro at gcalderaro@holcombdunbar.com.

Expungement of Certain Felonies

Mississippi law allows for the expungement of the following felony convictions:

  1. A bad check offense under Miss. Code Ann. § 97-19-55;
  2. Possession of a controlled substance or paraphernalia under Miss. Code Ann. § 41-29-139(c) or (d);
  3. False pretense under Miss. Code Ann. § 97-19-39;
  4. Larceny under Miss. Code Ann. § 97-17-41;
  5. Malicious mischief under Miss. Code Ann. § 97-17-67; or
  6. Shoplifting under Miss. Code Ann. § 97-23-93.

A person is only eligible to expunge one of the above felony convictions.  Further, any person convicted of one of the above felonies must wait 5 years from the successful completion of all terms and conditions of the sentence before expungement is available.  Miss. Code Ann. § 99-19-71(2)(a).

Mississippi allows for the expungement of additional felony convictions if committed while the person was under the age of twenty-one (21).  In these cases, any one felony conviction may be expunged 5 years after the successful completion of all terms and conditions of the sentence for the conviction. However, eligibility for an expungement under Miss. Code Ann. § 99-19-71(2)(b) does not apply to felonies classified as a crime of violence in Miss. Code Ann. §97-3-2 and any felony that, in the determination of the circuit court, is related to the distribution of a controlled substance and in the court’s discretion it should not be expunged.

 

The felonies considered crimes of violence include:

(a) Driving under the influence as provided in Sections 63-11-30(5) and 63-11-30(12)(d);

(b) Murder and attempted murder as provided in Sections 97-1-7(2), 97-3-19, 97-3-23 and 97-3-25;

(c) Aggravated assault as provided in Sections 97-3-7(2)(a) and (b) and 97-3-7(4)(a);

(d) Manslaughter as provided in Sections 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35, 97-3-39, 97-3-41, 97-3-43, 97-3-45 and 97-3-47;

(e) Killing of an unborn child as provided in Sections 97-3-37(2)(a) and 97-3-37(2)(b);

(f) Kidnapping as provided in Section 97-3-53;

(g) Human trafficking as provided in Section 97-3-54.1;

(h) Poisoning as provided in Section 97-3-61;

(i) Rape as provided in Sections 97-3-65 and 97-3-71;

(j) Robbery as provided in Sections 97-3-73 and 97-3-79;

(k) Sexual battery as provided in Section 97-3-95;

(l) Drive-by shooting or bombing as provided in Section 97-3-109;

(m) Carjacking as provided in Section 97-3-117;

(n) Felonious neglect, abuse or battery of a child as provided in Section 97-5-39;

(o) Burglary of a dwelling as provided in Sections 97-17-23 and 97-17-37;

(p) Use of explosives or weapons of mass destruction as provided in Section 97-37-25;

(q) Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge;

(r) Exploitation of a child as provided in Section 97-5-33;

(s) Gratification of lust as provided in Section 97-5-23; and

(t) Shooting into a dwelling as provided in Section 97-37-29.

 

Expungement after Nonadjudication or Pretrial Intervention

Like misdemeanors, when a felony charge has been nonadjudicated, Mississippi law provides that upon successful completion of court-imposed conditions, the charge is to be dismissed.  Upon dismissal, and in other circumstances, the law directs the Court to expunge the record upon petition to the Court.

Expungement after Dismissal or Case Retired to File

Upon petition to the Court, Mississippi law requires the Court to expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of the case. Miss. Code Ann. § 99-19-71(4).

 

HOW CAN I RESTORE MY RIGHT TO OWN A FIREARM?

Mississippi law provides a mechanism to allow such through a “Judicial Certificate of Rehabilitation.”

A felony conviction brings with it several consequences, one of which is the loss of one’s right to own or possess a firearm. Mississippi law, however, does provide an avenue of relief. The gun ownership rights of an individual convicted of a felony can be restored through a Certificate of Rehabilitation.

Upon completing all court ordered conditions, including any and all probation and fines, a person convicted of a felony may petition the court to issue a Certificate of Rehabilitation. A Certificate of Rehabilitation may also be available to those currently ineligible for an expungement.

 

 

2017