Felony Expungement
Expungement of criminal convictions is available
for both felony or misdemeanor convictions. However,
the type of relief available varies, depending upon
both the criminal charges and the sentence received.
Misdemeanor convictions are expunged pursuant to
Penal Code Section 1203.4. In any misdemeanor case,
where probation is granted and successfully
completed, and where the probationer is not currently
facing charges, an expungement is available. For a
detailed discussion of expungement in misdemeanor cases, click here.
Felony Case
Reducing "Wobbler" Offenses
Criminal cases fall into three categories:
felonies (cases where punishment can include
more than one year in state prison),
misdemeanors (where punishment can include up
to one year in county jail), or "wobblers"
(cases that can be punished either by state
prison or up to one year in county jail).
For purposes of expungement proceedings, if a
felony conviction is a "wobbler", a skilled
criminal lawyer will likely seek a reduction
of the offense to a misdemeanor pursuant to
Penal Code Section 17(b) before seeking an expungement under Penal Code 1203.4.
Penal Code Section 17(b) states that, on the
grant of this relief, the crime is a
misdemeanor "for all purposes," but case law
and other statutes carve out many exceptions.
The conviction, for example, remains a prior
strike under California's "Three Strikes" law, because it was not a misdemeanor
reduction at the time of the original
sentencing. The person may still be
considered convicted of felony for purposes
of many gun laws.
It is far better for a defendant to seek
reduction from a felony to a misdemeanor,
where available, before seeking an
expungement. It is certainly better for a
defendant to have a dismissed misdemeanor on
their record than a dismissed felony. Note: where a crime can only be punished by a term
in state prison, this reduction is not
available.
If probation is granted in a felony case, Penal Code
Section 1203.4 will control, just as it does in a
misdemeanor case.
A grant of probation can still involve jail time,
and, in the case of a felony conviction, often does.
A judge has the discretion to order formal or
informal (also called "summary") probation, and
impose various terms and conditions, including up to
one year in county jail.
When the term of probation has expired naturally, or
been terminated early after a motion by the defense,
and if other requirements are met, 1203.4 relief is
available.
California Penal Code Section 1203.4 provides, in
pertinent part, that:
In any case in which a defendant has fulfilled the
conditions of probation for the entire period of
probation, or has been discharged prior to the
termination of the period of probation, or in any
other case in which a court, in its discretion and
the interests of justice, determines that a defendant
should be granted the relief available under this
section, the defendant shall, at any time after the
termination of the period of probation, if he or she
is not then serving a sentence for any new offense,
on probation for any offense, or charged with the
commission of any offense, be permitted by the court
to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he
or she has been convicted after a plea of not guilty,
the court shall set aside the verdict of guilty; and,
in either case, the court shall thereupon dismiss the
accusations or information against the defendant and
except as noted below, he or she shall thereafter be
released from all penalties and disabilities
resulting from the offense of which he or she has
been convicted.
The order shall state, and the
probationer shall be informed, that the order does
not relieve him or her of the obligation to disclose
the conviction in response to any direct question
contained in any questionnaire or application for
public office, for licensure by any state or local
agency, or for contracting with the California State
Lottery.
Once the guilty plea or verdict has been set aside,
and a judgment of not guilty entered, a judgment of
not guilty is entered, and the complaint of
information is dismissed.
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Felony Convictions with State Prison Sentences
Felony convictions, where probation is not granted,
and a term in state prison is imposed, presents an
entirely different situation. In those cases, the
only relief available is a Certificate of
Rehabilitation and Pardon, or Direct Application for
Governor's Pardon. For a thorough discussion of the
difference between the Certificate of Rehabilitation
and the Direct Application for Governor's Pardon,
CLICK HERE.
Expungement Professionals Can Help
If you or someone you care about has suffered a
conviction, whether a misdemeanor or a felony
conviction, a skilled expungement lawyer can be of
real help. A skilled expungement lawyer can help
clean up a person's criminal record, which can lead
to better jobs, better self-confidence, and a better
life.