Expungement is the process in which a person convicted of certain crimes may get the record of their conviction cleared, or sealed. There is no constitutional right to expungement, but it is usually allowed in some form in most states.
The intention behind record expungement is to make the criminal record off limits to all except for law enforcement personnel in order to avoid some of the issues associated with having a criminal record, such as being unable to obtain employment. Felony expungement is the process of having a felony charge removed from a criminal record.
A felony is a crime that is considered to be more serious in nature, and is a category of crimes that are often classified as the most serious types of offenses. Felonies can be either violent or nonviolent, with each state having their own punishments for these crimes. The most common examples of felony crimes include:
- Attempted murder;
- Burglary; and
Felony expungement may also be referred to as record sealing, expunction, or setting aside a conviction, as the process makes it so the crime never occurred. Laws regarding felony expungement vary from state to state. Some states do not allow for felony expungement at all, while some states only allow for some specific felonies to be expunged. Generally, federal felonies may not be expunged; however, in some very limited circumstances, the defendant may be granted a pardon.
As previously mentioned, the laws governing felony expungement vary from state to state. Expungement may also depend upon the state’s definition of what constitutes a felony. Those who wish to have a felony expunged from their record must fulfill certain conditions qualifications. Since felony expungement is a privilege, it is usually contingent upon the defendant being able to prove to the court that they have effectively been rehabilitated.
In general, felony expungement requires:
- Filing a Request for Expungement: Felony expungement is not automatically granted, and a request must be made in order to obtain it. This includes submitting a written request to a judge who will then conduct a hearing in order to determine expungement eligibility. In some courts, there will be a filing fee attached to the request;
- Fulfillment of Sentencing: All incurred fines and jail sentences must be completely fulfilled before filing for expungement. Additionally, some states may have a waiting period in place that must be fulfilled before a request for expungement may be filed. Usually, this waiting period is anywhere between five to ten years after discharge, or completion of the sentence; and
- Probation Completion: Probation must be completed without any violations or incidents before a person may file for expungement. Some states will not grant an expungement for felonies unless probation has also been granted and completed.
If an expungement is successful, the defendant can legally claim that they have never been convicted of the expunged crime, in nearly every situation. An example of this would be if they are looking for a job, and the potential employer asks if they have ever been convicted of a crime.
Legally, the defendant can say that they have not. However, certain exceptions do apply. Some jobs require disclosure even if the crime has been expunged, such as jobs involving caring for children, government jobs, etc.
Nearly every state that allows for felony expungement has limitations on what can be sealed or expunged. Additionally, those who have been required to register as a sex offender cannot have themselves removed from the registry upon expungement. Additionally, expungement is generally not available to those who have committed serious or violent crimes.
Because of the difference between state laws regarding felony expungement, it can be difficult to say what is and is not eligible for expungement. In general, the more serious the felony charges, the less likely an expungement will be allowed. Some examples of felonies that are generally not eligible for expungement include:
- Felonies in which the victim was under the age of eighteen;
- Sexual crimes such as rape or sexual battery;
- Corrupting a minor; and
- Child pornography.
As previously mentioned, federal crimes may not be expunged. Additionally, some felonies may still have legal consequences to be faced, even if they have been successfully expunged. An example of this would be California’s Three Strikes law, which imposes a life sentence on defendants who have been charged with three separate felonies. Even if their felony has been expunged, it may still count towards the three strikes. Thus, even though the felony would not appear on the defendant’s record, their prior felony conviction may be cited if future felonies are committed.
Depending on the facts of the specific case, a felony conviction may be reduced to a misdemeanor which is much easier to expunge than a felony. This is especially true for non-violent crimes. Some states will recognize “wobblers.” These are crimes that are in between misdemeanors and felonies in terms of the severity of legal consequences. These types of crimes are often eligible for reduction from a felony to a misdemeanor.
As can be seen, felony expungement can be a complicated process and must be handled carefully. Therefore, if you are facing a felony conviction, or would like to have a felony crime expunged, you should consult with a well qualified and knowledgeable expungement attorney.
An experienced expungement attorney can help you determine whether you are eligible for expungement, and walk you through the expungement process if you qualify. Additionally, they can represent you in court as needed.