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Relief from a Criminal Conviction (2017 edition)

Discharge and Dismissal or Conviction of Gang Offenses

G.S. 15A-145.1 authorizes expunction of a discharge and dismissal or conviction of certain offenses involving gangs in violation of G.S. 14-50.29 and G.S. 14-15.30 (see Table 17). The 2009 Consolidation Act, S.L. 2009-577 (H 1329), moved the key expunction provisions from the gang statutes to G.S. 15A-145.1 and broadened the opportunity for an expunction by making G.S. 15A-145.1 applicable to expunction petitions filed on or after December 1, 2009. Previously, the gang offense expunction provisions, in G.S. 14-50.30, applied only to offenses committed on or after December 1, 2008, when the gang statutes were first enacted. See S.L. 2008-214 (H 274); State v. Frazier, 206 N.C. App. 306, 308 n.1 (2010) (recognizing effect of 2009 legislation on effective date). The original gang statutes remain relevant because they contain the discharge and dismissal requirements for the offenses, which are a precondition for expunctions of those matters under G.S. 15A-145.1. (A person also may be eligible for a discharge and dismissal of a gang offense under the general discharge and dismissal statute, G.S. 15A-1341(a4), and for an expunction of either type of discharge and dismissal under the general dismissal expunction statute, 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.)

Subdivision (1) in G.S. 15A-145.1(a) requires an affidavit by the petitioner that he or she has been of good behavior “(i) during the period of probation since the decision to defer further proceedings on the offense in question . . . or (ii) during the two-year period since the date of conviction of the offense in question, whichever applies, and has not been convicted of any felony or misdemeanor other than a traffic violation.” The italicized provision does not appear to be significant for expunctions of a discharge and dismissal because the person must be conviction-free (other than for a traffic violation) to obtain a discharge and dismissal in the first place. But, the meaning of the provision may be significant for petitions to expunge a conviction. The italicized provision could be read as a free-standing requirement that the person be conviction-free (other than for a traffic violation). An alternative interpretation is that the language should be read in conjunction with the indicated time period—that is, the person must be of good behavior and conviction-free in the two years since conviction of the gang offense. Cf. 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 47:26 (7th ed., Nov. 2016) (observing that where a sentence contains several antecedents and several consequents, courts apply the words to the subjects to which, by context, they seem most properly to relate). Later-enacted expunction statutes may support the latter interpretation, stating more clearly that the petitioner must be of good moral character and conviction-free since disposition of the case. See G.S. 15A-145.6(c)(1), (f)(2) (expunction of prostitution offense); see generally supra Overview: Interpreting Relief Statutes (observing that later statutes may provide a guide to the General Assembly’s intent in earlier statutes).

A two-year waiting period, tied to the date of conviction and completion of the person’s sentence, is required before the filing of an expunction petition of a conviction. For a discussion of waiting periods, which are common to several expunction statutes, see infra Appendixes: Frequently Asked Questions (Waiting Periods).

As in many of the expunction statutes, G.S. 15A-145.1 treats traffic violations differently than other criminal convictions. Under G.S. 15A-145.1, a conviction of a traffic violation is not a bar to an expunction of a discharge or dismissal or a conviction of the covered gang offenses. This guide takes the position that the term “traffic violation,” as used in the expunction statutes, means any misdemeanor conviction under Chapter 20 of the General Statutes unless otherwise specified. The meaning of traffic violation, including impaired driving, is discussed further in Appendixes: Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).

There is one Administrative Office of the Courts (AOC) form for expunction of gang offenses, but three different AOC forms for the discharge and dismissal itself (shown in Table 17). The different discharge and dismissal forms reflect differences in the applicable conditions of probation, which depend on the date the person committed the offense; the basic criteria for discharge and dismissal do not differ.

 

Table 17. Discharge and Dismissal or Conviction of Gang Offenses

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Discharge and dismissal of
    • any Class H felony under G.S. Ch. 14, Art. 13A; or
    • an enhanced offense under G.S. 14-50.22
  • Person must obtain discharge and dismissal, the requirements of which include
    • offense occurred before person turned 18,
    • no prior felony or misdemeanor conviction other than for traffic violation,
    • fulfillment of terms of probation, and
    • no prior discharge and dismissal under G.S. 14-50.29
  • Person must meet requirements for expunction, including
    • no felony or misdemeanor conviction (discussed above) other than for traffic violation,
    • petition may not be filed until completion of discharge and dismissal, for which G.S. 14-50.29 sets a period of supervised probation of at least one year,
    • person must have been of good behavior and have no felony or misdemeanor conviction other than for traffic violation during period of probation for offense in question, and
    • person has no outstanding restitution orders or judgments representing restitution
  • Conviction of
    • any Class H felony under G.S. Ch. 14, Art. 13A; or
    • an enhanced offense under G.S. 14-50.22
  • Offense occurred before person turned 18
  • No felony or misdemeanor conviction (discussed above) other than for traffic violation
  • Petition may not be filed earlier than completion of probation or two years after conviction, whichever is later
  • Good behavior and no felony or misdemeanor conviction other than for traffic violation for two years after conviction
  • No outstanding restitution orders or judgments representing restitution