Holcomb Dunbar Attorneys

By Geoffrey Calderaro

As of July 1, 2019, more felony convictions than ever before may now be subject to expungement in Mississippi.

The new law allows for the expungement of one conviction from all public records five years after the successful completion of all terms and conditions of the sentence. Miss. Code. Ann. § 99-19-71(2)(a). However, a person is not eligible to expunge a felony classified as:

            (i) A crime of violence as provided in Section 97-3-2;

            (ii) Arson, first degree as provided in Sections 97-17-1 and 97-17-3;

            (iii) Trafficking in controlled substances as provided in Section 41-29-139;

            (iv) A third, fourth or subsequent offense DUI as provided in Section 63-11-30(2)(c) and (2)(d);

            (v) Felon in possession of a firearm as provided in Section 97-37-5;

            (vi) Failure to register as a sex offender as provided in Section 45-33-33;

            (vii) Voyeurism as provided in Section 97-29-61;

            (viii) Witness intimidation as provided in Section 97-9-113;

            (ix) Abuse, neglect or exploitation of a vulnerable person as provided in Section 43-47- 19; or

            (x) Embezzlement as provided in Sections 97-11-25 and 97-23-19.

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

In Mississippi: “Any person who has been convicted of a misdemeanor that is not 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(13)

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 now with the July 1, 2019 revisions to Miss. Code Ann. § 99-19-71(2) more felony convictions are now expungable than ever before. And like misdemeanors, any felony charge that was dismissed, not prosecuted or in which you were found not guilty can be expunged.

Expungement of Certain Felonies

Mississippi law allows for the expungement of one (1) conviction from all public records five (5) years after the successful completion of all terms and conditions of the sentence. Miss. Code. Ann. § 99-19-71(2)(a). A person is not eligible to expunge a felony classified as:

            (i) A crime of violence as provided in Section 97-3-2;

            (ii) Arson, first degree as provided in Sections 97-17-1 and 97-17-3;

            (iii) Trafficking in controlled substances as provided in Section 41-29-139;

            (iv) A third, fourth or subsequent offense DUI as provided in Section 63-11-30(2)(c) and (2)(d);

            (v) Felon in possession of a firearm as provided in Section 97-37-5;

            (vi) Failure to register as a sex offender as provided in Section 45-33-33;

            (vii) Voyeurism as provided in Section 97-29-61;

            (viii) Witness intimidation as provided in Section 97-9-113;

            (ix) Abuse, neglect or exploitation of a vulnerable person as provided in Section 43-47-    19; or

            (x) Embezzlement as provided in Sections 97-11-25 and 97-23-19.

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.

If you have any questions about a felony you would like to remove from your record, please contact Geoffrey Calderaro at (662) 234-8775 to discuss the possibility of expungement or you may email Geoffrey Calderaro at gcalderaro@holcombdunbar.com.

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