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Relief from a Criminal Conviction (2017 edition)

Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions

G.S. 15A-146 allows expunction of dismissals and findings of not guilty of felony or misdemeanor charges and of findings of not responsible for certain infractions (see Table 4). A dismissal, whether by the State or by the court, may be expunged. For a discussion of the types of dispositions that constitute dismissals subject to G.S. 15A-146, see supra Expunctions of Dismissals and Similar Dispositions: Types of Dismissals.

G.S. 15A-146 contains a limited bar to relief based on prior convictions. The statute does not make a misdemeanor conviction a bar, whether the misdemeanor conviction occurs before, after, or at the same time as the dismissal.[1] The last situation is fairly common when a person faces multiple charges—for example, a person may be charged with a felony and misdemeanor but be convicted of the misdemeanor only. The misdemeanor conviction is not a bar to expunction of the felony charge if the felony charge is dismissed or the defendant is found not guilty—G.S. 15A-146 does not require that a person obtain a favorable result on all charges to be eligible for relief.[2] This question may arise in various ways, but the result is the same. For example, a prosecutor may dismiss a felony charge as part of a plea agreement in which the person pleads guilty to the misdemeanor. Or, the prosecutor may bring a felony charge, and the person pleads guilty to or is found guilty of a lesser misdemeanor, effectively resulting in a dismissal or acquittal of the felony. In those instances, the person should be entitled to expunction of the felony charge if he or she otherwise meets the criteria in G.S. 15A-146. See also G.S. 15A-266.3A (mandating expunction of DNA samples taken on arrest for felony if person is convicted of lesser misdemeanor for which DNA samples not required). If the court orders expunction of one charge within a case and does not order expunction of the entire case, the clerk should expunge those portions of the case affected by the order.[3]

A petitioner is probably ineligible for an expunction of a dismissal if he or she has been convicted of a felony, whether before, after, or at the same time as the dismissal. The wording of G.S. 15A-146 creates some ambiguity because it allows expunction of a dismissal if, among other things, the person “had not previously been convicted of any felony.” See G.S. 15A-146(a), (a1), (a2). Use of the past tense “had” raises the possibility that a felony conviction is a bar only if the person “had” not been convicted of a felony before some earlier date, such as the date the charges to be expunged were brought. This language is a holdover from an earlier version of the statute, which allowed an expunction if “at the time any of the proceedings against him occurred the person . . . had not previously been convicted of any felony or misdemeanor other than a traffic violation . . . .” S.L. 1979-61 (H 44) (italics added). The General Assembly subsequently revised the statute to eliminate the italicized language. S.L. 1985-636 (H 997). It retained the term “had”; but, without reference to a particular time frame, the term no longer appears to have any significance. The statute most likely allows an expunction only if the person “has” not previously been convicted of a felony. Such an approach would be consistent with other North Carolina expunction statutes, which consider the petitioner’s record at the time of the expunction proceedings.

Previously, a person was ineligible for an expunction under G.S. 15A-146 if he or she had received a prior expunction under one of several statutes. See also In re Robinson, 172 N.C. App. 272, 274–75 (2005) (stating under previous version of statute that “expungement is only available where the trial court finds that the person has not previously received an expungement”). Notwithstanding this bar, the previous statute allowed a person to obtain an expunction of multiple dismissals if the alleged offenses occurred during the same 12-month period or were disposed of at the same term of court. See also Opinion Letter by North Carolina Attorney General to James J. Coman, SBI Director (Oct. 13, 1995) (stating that a person could obtain an expunction of multiple offenses under the previous version of G.S. 15A-146 if they arose out of the same transaction or occurrence or were consolidated for trial or judgment).[4]

Legislation enacted in 2017 eliminates the prior expunction bar from G.S. 15A-146, effective for petitions filed on or after December 1, 2017. S.L. 2017-195 (S 445). A person may obtain an unlimited number of expunctions of dismissals under G.S. 15A-146, regardless whether the person previously received an expunction of any kind and regardless whether the dismissal occurred before or after December 1, 2017. (But, an expunction under G.S. 15A-146 still bars an expunction under certain other statutes, discussed below.) As revised, G.S. 15A-146(a) provides for expunction of a dismissal; amended G.S. 15A-146(a1) provides for expunction of multiple dismissals, regardless whether they occurred within the same 12-month period or at the same term of court; and new G.S. 15A-146(a2) provides for expunction of a finding of not guilty or not responsible. This last category is in a separate subsection because prosecutors are not entitled to obtain a record of those expunctions under G.S. 15A-151.5, enacted as part of the same legislation. See supra Overview: Effect of Expunction.

The elimination of the prior expunction bar not only expands the opportunities for relief, it also avoids potentially sticky procedural problems. Thus, to obtain an expunction of multiple dismissals that occurred in different counties, the petitioner had to time the filing of the petitions to avoid having an expunction in one county granted first, which might then bar an expunction in the other county. The timing no longer matters.

Similarly, to obtain an expunction of a dismissal under G.S. 15A-146 and a misdemeanor conviction under G.S. 15A-145, the petitioner previously had to petition for the expunction of the dismissal first, then file for expunction of the conviction. If done in reverse, the expunction under G.S. 15A-145 might bar an expunction under G.S. 15A-146. Now, a petitioner should be able to petition for an expunction of both simultaneously. See infra Frequently Asked Questions (Expunction of Misdemeanor Conviction and Dismissal).

Previously, a person might not be able obtain an expunction of a dismissal under G.S. 15A-146 and a felony conviction under G.S. 15A-145.5. If the person first expunged the conviction, the expunction of the conviction might bar expunction of the dismissal. But, if the person did not have the felony conviction expunged, the person could not obtain expunction of the dismissal because of the prior felony conviction. Now, a person can expunge both because an expunged conviction is not considered a conviction and an expunction of another matter, including a felony conviction, is not a bar to expunction of a dismissal. See infra Frequently Asked Questions (Expunction of Felony Conviction and Dismissal).

An expunction of a dismissal under G.S. 15A-146 continues to bar relief under G.S. 15A-145.4 (nonviolent felony before age 18) and G.S. 15A-145.6 (prostitution offenses). Continuing to bar relief under these statutes because of a prior expunction under G.S. 15A-146 may have been an oversight, as it seems inconsistent with the 2017 legislation, which allows petitioners to obtain unlimited expunctions of dismissals. Until revised, however, an expunction under G.S. 15A-146 is a bar under these statutes.

 

Table 4. Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions

Matters Subject to Expunction

Principal Restrictions on Expunction

Applicable Statutes and Forms

  • Dismissal or finding of not guilty or not responsible of
    • infraction under G.S. 18B-302(i) charged before Dec. 1, 1999, or
    • misdemeanor or felony
  • No prior felony conviction

[1] The statute formerly barred a person from obtaining an expunction of a dismissal if previously convicted of a misdemeanor, but the General Assembly eliminated the misdemeanor conviction bar in 1991. S.L. 1991-326 (S 744); see also In re Kearney, 174 N.C. App. 213 (2005) (holding in case in which assault and battery charge was dismissed, and defendant was convicted of misdemeanor assault inflicting serious injury, that defendant was entitled to expunction of dismissal under G.S. 15A-146 although not of conviction).

[2] Amendments to G.S. 15A-146 in 2017 reinforce this result. Amended G.S. 15A-146(a1) states that if a person is charged with multiple offenses and the charges are dismissed, the person is entitled to expunge the dismissed charges. Previously, the subsection provided for an expunction if the person was charged with multiple charges and “all the charges” were dismissed. That provision appears to have meant only that a person could obtain an expunction of charges that were dismissed, not all the charges in the case, but the use of the term “all” may have created some ambiguity. By eliminating the term “all,” the General Assembly made it clearer that the statute allows expunction of any charges that were dismissed as long as the person meets the other requirements of the statute—that is, the person has not been convicted of a felony. S.L. 2017-195 (S 445).

[3] According to the North Carolina Administrative Office of the Courts (AOC), the clerk of court should obliterate all references to the expunged charge in the physical records of the case. Thus, the clerk would obliterate the felony charge from the original criminal process, the release order, and other records. The AOC also advises that the clerk should delete the entire case from the Automated Criminal Information System (ACIS) and reenter the case under the same case number but limited to the charges that were not expunged.

[4] Under the previous statutes, multiple expunctions were possible in additional, narrow circumstances. The circumstances are described here to keep track of the statutory changes, but they are no longer preconditions for an expunction under G.S. 15A-146.

Under changes made by the 2009 Consolidation Act, S.L. 2009-577 (H 1329), a prior expunction under G.S. 15A-146 did not bar a second expunction under G.S. 15A-146(a1) if the prior expunction (i) occurred before October 1, 2005, when G.S. 15A-146(a1) took effect, and (ii) was for an offense that allegedly occurred within the same 12-month period or was dismissed at the same term of court as the offenses that were the subject of the current expunction petition. This provision allowed a person who obtained an expunction under G.S. 15A-146 before October 1, 2005, to go back and obtain an expunction of additional charges during the surrounding 12-month period or of charges disposed of during the same term of court.

The 2009 Consolidation Act also revised G.S. 15A-146(a) and (a1) by changing the statutory references for prior expunctions that barred an expunction. Before passage of that legislation, a person could not obtain this type of expunction if he or she had received an expunction under G.S. 90-96, among other statutes. The revised provision omitted any reference to G.S. 90-96 on expunction of drug-related matters and instead referred to the expunction statutes on drug-related matters added by the 2009 Consolidation Act (that is, G.S. 15A-145.2 and G.S. 15A-145.3, discussed infra under Expunctions of Drug-Related Offenses). If read literally, a prior expunction under G.S. 90-96, obtained before passage of the 2009 Consolidation Act, did not bar an expunction under G.S. 15A-146.