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Relief from a Criminal Conviction

Charges Resulting from Identity Theft or Mistaken Identity

G.S. 15A-147 allows expunction of dismissals and findings of not guilty if the underlying charge against the person was the result of identity theft (see Table 7). The statute also authorizes an expunction when a conviction resulting from identity theft is set aside. Reflecting that the petitioner did not engage in the charged conduct, the statute imposes no other requirements for an expunction—for example, no waiting period, no limit on prior expunctions, and no requirement of a conviction-free record.

Effective for charges filed on or after December 1, 2015, the statute authorizes an expunction in cases of mistaken identity as well as identity theft. G.S. 15A-147(g) defines "mistaken identity." For charges filed on or after that date, G.S. 15A-147(a1) requires expunction in both instances, without a petition by the defendant, if the court or prosecutor dismisses the charge. S.L. 2015-202 (S 233); see also AOC-CR-283, Order of Expunction under G.S. 15A-147(a1) (Identity Theft or Mistaken Identification) (Mar. 2017). Revised G.S. 15A-147 does not apply to charges resulting from mistaken identity if filed before December 1, 2015. In those cases, the court may be able to order the records amended to remove the name of the person who was mistakenly charged and substitute the actual defendant or respondent. See generally Jeff Welty, What to Do When a Defendant Is Charged under the Wrong Name, N.C. Crim. L., UNC Sch. of Gov't Blog (Jan. 5, 2010). If a defendant is convicted under a false name, the procedure likewise would be to amend the pertinent records to identify the defendant correctly and remove any reference to the wrongly-named person. Because the case against the actual defendant is not dismissed in that instance, the court would not expunge the case under G.S. 15A-147.

 

Table 7. Charges Resulting from Identity Theft or Mistaken Identity

Matters Subject to ExpunctionPrincipal Restrictions on ExpunctionApplicable Statutes and Forms
  • Finding of not guilty, dismissal, or setting aside of conviction of infraction, misdemeanor, or felony resulting from another person’s use of identifying information of named person without that person’s permission and, effective for charges filed on or after Dec. 1, 2015, resulting from mistaken identity
  • None