Relief from a Criminal Conviction (2018 edition)

Discharge and Dismissal or Conviction of Prostitution Offenses

G.S. 15A-145.6 authorizes the expunction of a discharge and dismissal or a conviction of a prostitution offense in violation of G.S. 14-204, a Class 1 misdemeanor (see Table 16). This type of expunction was added as part of S.L. 2013-368 (S 683), a larger act that, among other changes, rewrote the existing statute on prostitution, G.S. 14-204. The requirements for a discharge and dismissal, which is a precondition for an expunction of those matters, are contained in G.S. 14-204(b). The court is required to impose a discharge and dismissal if the defendant consents and meets the conditions for a discharge and dismissal. (A person also may be eligible for a discharge and dismissal of a prostitution 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.)

The effective-date clause for the revised prostitution statutes states that the changes apply to offenses committed on or after October 1, 2013; however, G.S. 15A-145.6(a)(1) includes in the definition of offenses subject to expunction a violation of G.S. 14-204(7) that occurred before October 1, 2013. Interpreted together, the provisions allow a person to obtain an expunction of a violation of revised G.S. 14-204 occurring on or after October 1, 2013, and an expunction of a violation of repealed G.S. 14-204(7) occurring before October 1, 2013.

G.S. 15A-145.6 disqualifies a person from obtaining an expunction of a conviction or discharge and dismissal if the person has certain prior convictions. The statute states the requirements inconsistently about the effect of convictions occurring after the prostitution offense to be expunged. The portion of the statute addressing the required findings by the court states that the petitioner may not have a conviction of a felony or misdemeanor, other than a traffic violation, since conviction of the prostitution offense to be expunged. G.S. 15A-145.6(f). The portion of the statute addressing the petitioner’s affidavit in support of an expunction request requires that the petitioner be conviction-free since the conviction of the prostitution offense and makes no exception for convictions of traffic violations. Generally, all of the expunction statutes that bar relief based on prior convictions exclude traffic violations. To be consistent with the General Assembly’s approach to expunctions, this guide takes the view that the General Assembly intended to exclude traffic violations from the bar to relief for prostitution offenses and the omission of similar language in the affidavit portion of the statute was inadvertent. For a discussion of the meaning of “traffic violation,” see Appendixes: Frequently Asked Questions (Traffic Violations and Driving While Impaired (DWI)).

A prior expunction, including an expunction of a dismissal under G.S. 15A-146, is a bar to relief. Continuing to make prior expunctions under G.S. 15A-146 a bar to relief may have been an oversight, as it seems inconsistent with 2017 legislation allowing petitioners to obtain an unlimited number of expunctions of dismissals. S.L. 2017-195 (S 445). Until revised, however, it is a bar under G.S. 15A-145.6.

Most expunction statutes provide that an expunction allows a person to take the position that he or she has no such record without being held to have committed perjury or otherwise given a false statement. G.S. 15A-145.6(g) creates a limited exception to that general approach, stating that a person seeking law enforcement certification in North Carolina must disclose to the certifying commission all prostitution convictions regardless of whether they have been expunged under G.S. 15A-145.6. This disclosure requirement does not apply to a discharge and dismissal of a prostitution offense because a discharge and dismissal does not constitute a conviction. Under another statute, however, a certifying law enforcement commission, as well as state and local law enforcement agencies, may obtain a record of all expunctions under G.S. 15A-145.6, whether of a conviction or a discharge and dismissal. G.S. 15A-151(a)(4), (5), (6) see also AOC-CR-280 (Dec. 2018) (law enforcement application for verification of expunction). But see G.S. 17C-13(b) (allowing certifying commission to consider expunged felony convictions only); G.S. 17E-12(b) (to same effect).

The act allowing expunction of prostitution offenses also created a basis for vacating a prostitution conviction. G.S. 15A-1415(b)(10) provides that a person may make a motion for appropriate relief (MAR) to vacate a prostitution conviction if the conviction is for a first prostitution offense under G.S. 14-204, the person did not receive a discharge and dismissal for the offense, and the person’s participation in the offense was a result of having been a victim of human trafficking or sexual servitude. G.S. 15A-1416.1 sets forth the procedure for making a motion for appropriate relief on this ground. For a discussion of MARs in general, see infra Motions for Appropriate Relief.

A three-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. The waiting period does not apply if the person was a victim of human trafficking or involuntary servitude. For a discussion of waiting periods, which are common to several expunction statutes, see infra Appendixes: Frequently Asked Questions (Waiting Periods).


Table 16. Discharge and Dismissal or Conviction of Prostitution Offenses

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Discharge and dismissal of prostitution offense in violation of G.S. 14-204
  • Person must obtain discharge and dismissal, the requirements of which include
    • no prior conviction or placement on probation for violation of G.S. 14-204, and
    • no prior discharge and dismissal under G.S. 14-204
  • Person must meet requirements for expunction, including
    • petition may not be filed until completion of discharge and dismissal, for which G.S. 14-204(b) sets a period of probation of 12 months with certain conditions, and
    • person meets the requirements for expunction (described in connection with a conviction, below)
  • Conviction of violation of G.S. 14-204 or former G.S. 14-204(7)
  • Person satisfies any one of following:
    • participation in prostitution offense was result of having been victim of human trafficking or sexual servitude as described in G.S. 15A-145.6(b)(2)a.,
    • person has no prior convictions for a prostitution offense and at least three years have passed since conviction or completion of sentence, whichever occurs later, or
    • person received a discharge and dismissal, above
  • Person has no prior conviction of a violent felony or violent misdemeanor as defined in G.S. 15A-145.6(a)(2)
  • Person has been of good moral character and has no felony or misdemeanor conviction other than a traffic violation since the date of convictiona
  • Person has no outstanding restitution orders or judgments representing restitution
  • Person has no outstanding warrants or pending criminal cases
  • Person has not previously received an expunction other than for a prostitution offense

a See discussion in text about disqualifying convictions.