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Relief from a Criminal Conviction (2020 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 18). 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of a violation of revised G.S. 14-204 occurring on or after October 1, 2013, and an expunction of a violation of repealed G.S. 14-204(7) occurring before October 1, 2013.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.

The act allowing expunction of prostitution offenses also created a basis for making a motion for appropriate relief to vacate a prostitution conviction. In 2019, the General Assembly repealed that right and replaced it with a right for human trafficking victims to make such a motion. See infra Expunctions of Other Offenses: Convictions of Offenses by Human Trafficking Victims. 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 18. 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 has no prior convictions for a prostitution offense and no prior convictions of a violent felony or misdemeanor as defined in G.S. 145.6(a)(2) (a Class A through G felony or Class A1 misdemeanor that has assault as an essential element)
  • At least three years have passed since conviction or completion of sentence, whichever occurs later,
  • 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.