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Relief from a Criminal Conviction

Discharge and Dismissal of Misdemeanors and Class H and I Felonies

G.S. 15A-1341(a4), enacted in 2014, authorizes a discharge and dismissal for any class of misdemeanor and any Class H or I felony (see Table 5). Effective for orders placing a person on probation on or after December 1, 2015, G.S. 15A-1341(a) provides that a person may not receive a discharge and dismissal for an impaired driving offense under G.S. 20-138.1. S.L. 2015-150 (H 273). The statute does not contain or refer to specific expunction procedures, but a discharge and dismissal under the new statute should be subject to expunction under the general expunction statute on dismissals, G.S. 15A-146. (For a discussion of the impact of a discharge and dismissal and its eligibility for expunction, see supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.) The statute is effective December 1, 2014, which means a discharge and dismissal is available in any case in which the court enters a disposition on or after December 1, 2014, whether the offense was committed before or after that date.

The statute does not make a prior discharge or dismissal a bar to a discharge or dismissal; however, it requires that the person not previously have been on probation. Because a discharge and dismissal generally involves probation, this provision effectively bars a person from obtaining a discharge and dismissal under the new statute if he or she has already obtained a discharge and dismissal under any discharge and dismissal statute. An exception may exist if the prior discharge and dismissal has been expunged because an expunction has the legal effect of undoing the prior proceedings.

There is not a specific Administrative Office of the Courts (AOC) form for an expunction of a discharge and dismissal under G.S. 15A-1341(a4), but the form for obtaining an expunction of a dismissed proceeding (AOC-CR-264) can be used with supporting documentation that the petitioner received a discharge and dismissal.

Table 5. Discharge and Dismissal of Misdemeanors and Class H and I Felonies

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Discharge and dismissal of
    • any Class H or I felony or any misdemeanor (except for impaired driving offense under G.S. 20-138.1, effective for orders placing a person on probation on or after Dec. 1, 2015)
  • Person must obtain discharge and dismissal, the requirements of which include
    • consent of court, prosecutor, and person;
    • no prior conviction of misdemeanor involving moral turpitude or felony;
    • person has not previously been placed on probation;
    • person is unlikely to commit another offense other than Class 3 misdemeanor; and
    • fulfillment of terms of probation (maximum of two years under G.S. 15A-1341(a))
  • Person must meet requirements for expunction under G.S. 15A-146 (see Table 4).