Where Experience Counts And Results Matter

Review of Expungement Issues

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By Daniel J. Taylor

Tenn. Code Annotated Section 40-32-101 (Dismissal)

Any criminal charge that has been:
No true bill returned;
a verdict of not guilty in a bench trial or jury trial;
The person was arrested and released without being charged.

A nolle prosequi entered.
Expunged pursuant to T.C.A 40-32-101
No costs to the Defendant pursuant to 40-32-101 (a)(1)(A).

Must petition to expunge with an order:
It doesn’t happen automatically. The court doesn’t normally expunge dismissed charges (There is an exception, the statute says that upon a not guilty verdict at either a jury or bench trial, the Judge shall inquire of the person acquitted whether they want all public records associated with the charge expunged. If the person wants it expunged the Court shall so order (T.C.A. 40-32-101(F).) Otherwise the Defendant or counsel must petition to have the charge expunged. It is the attorney’s responsibility to file an Order for the Expungement of Criminal Offender Record. You file an Expungement Form EX-1(Rev. 2003). They are available at most court clerk’s offices and also online.

What must be included in the information on form?
The Defendant’s name; date of birth; social security number; race; sex; date of arrest; arresting agency; charges as stated on affidavit of complaint, summons, or indictment; final disposition; diversion date (if applicable); category of what happened in court (There are court provisions relating to adults and different statutory provisions relating to juveniles). The form has signature lines for the Defendant or attorney, judge, and District Attorney General. The form must be complete and legible. The form must be submitted to the clerk of the court where the charge was pending.

Always keep a copy of the judge and stamp filed copy of the expungement order in your client’s file at your office. Also, always give a copy to your client and request that they are kept with the client’s important records.

What gets expunged?
Provides for expungement of certain “public records” and the term “public records” refers to all records maintained by a public official regardless of whether such records be for public inspection or for internal use. TN Attorney General Opinion 05-150, September 30, 2005.

T.C.A. Section 40-32-101 set forth circumstances in which certain public records may be removed and destroyed.

What is not a public record that doesn’t get expunged:
Tenn. Code Ann. Section 40-32-101(b)(1) defines what is not a public record as follows::
Does not include:
arrest histories,
investigative reports,
intelligence information of law enforcement agencies,
files of district attorney generals that are maintained as confidential records for law enforcement purposes and are not open for inspection by members of the public
Records of the Department of Children Services or Department of Human Services which are confidential under state or federal law or are required to be maintained.

The Expungement Order is a public record, and the statute does not authorize clerks to retain any public record. The clerk cannot retain a copy of the expungement order for internal use. TN Attorney General Opinion 05-150, September 30, 2005.

Under the statute no evidence of such records pertaining to the offense shall be retained by any municipal, county, or state agency. Except non-public confidential information retained in accordance with T.C.A. 10-7-504 and T.C.A. 38-6-118

Expunged Criminal Offender and pretrial diversion database:
The Expungement Order and expungement records are maintained by the T.B.I as provided by T.C.A 38-6-118. The information is not a public record and is confidential. One purpose of the database is to certify to judges and district attorney generals information to ensure that no one is granted diversion (judicial or pretrial diversion) twice. 38-6-118.

It is the court clerk’s duty to send or cause to be sent a copy of the expungement order to the Tennessee Bureau of Investigation for entry into its expunged offender and pretrial diversion database.

Follow up:
Check the Clerk’s office/files/computers to make sure it happened. Expunged records shall be removed and destroyed within sixty days of filing the petition. That means to remove and destroy public records means destruction or obliteration. See State v. McCary, 815 S.W. 2d 220 (Tenn. Crim. App. 1991); and Tenn. Attorney General Opinion No. 01-040, March 19, 2001.

Internet public records:
If the clerk makes available the public records of their office on the internet, then once the expungement order is signed, the record keeper must remove all records ordered expunged from the internet and destroy those records, including any back-up copies. See Tenn. Attorney General Opinion No 00-058, March 31, 2000.
Keep a copy of the Judge signed order. (It might/will come up later).

No limit on number of expungements because of dismissal:
As long as it was a dismissal (not a pretrial or judicial diversion). No requirement for the T.B.I to keep information in the expunged criminal offender and pretrial diversion database as to Class B or C misdemeanors after July 1, 1999. T.C.A. 38-6-118(a)(1)(A).

Pretrial Diversion- 40-15-105 Memorandum of Understanding (Suspended prosecution):
The prosecutor/Court agrees to suspend the prosecution for a specified period, not to exceed two years from the filing of the understanding. The Defendant will be supervised and pay a $10.00 a month fee.

No prior pretrial diversion or judicial diversion. You only get one.

Can’t have a prior misdemeanor conviction for which a sentence of confinement is served or a prior felony conviction within a five year period after completing the sentence or probationary program for the prior conviction.

Can’t be one of the disqualifying charges listed in 40-15-105:
The offense for which prosecution is being suspended is not a felony; DUI; misdemeanor sexual offense; conspiracy, attempt, or solicitation to commit a Class E sexual offense; or a misdemeanor committed by any elected or appointed person in the three branches of the state or political subdivision of the state committed in the person’s official capacity or duties.

Must file the TBI Application for Certification of Eligibility for Diversion form to show eligibility for diversion. This must be done at the beginning of the process. Must pay the diversion application fee of $100.00 to T.B.I

Must file the Order for Expungement at the conclusion of the suspended program to destroy the public records.

Comes with conditions: Any grant of diversion must be conditioned on one or more of the following conditions:that the defendant not commit any criminal offense;
that the defendant refrain from activities, conduct, or associations related to the charge;
that the defendant receive rehabilitative treatment, counselling and education; that the defendant make restitution to the victim;
that the defendant pay court costs and the costs of $10.00 per month of the diversion;
that defendant reside in a designated place or program or participate in a program; and that the defendant abide by any other terms or conditions as may be agreed upon. T.C.A. 40-15-105.
If the defendant violates a term or condition, the prosecution may terminate diversion and resume the criminal prosecution. Tenn. Code Ann. § 40-15-105(d).

One who is statutorily eligible is not presumptively entitled to diversion. Instead, whether to grant pretrial diversion to a qualified defendant who is statutorily eligible is a determination that lies in the discretion of the district attorney general. State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997).

Factors to Consider: In deciding whether to enter into a memorandum of understanding under the pretrial diversion statute a prosecutor should focus on:

Defendant’s amenability to correction.
Any factors which tend to accurately reflect whether a particular defendant will or will not become a repeat offender should be considered.
Such factors must, of course, be clearly articulable and stated in the record in order that meaningful appellate review may be had.
Among the factors to be considered in addition to the circumstances of the offense are the defendant’s criminal record, social history, the physical and mental condition of a defendant where appropriate, and the likelihood that pretrial diversion will serve the ends of justice and the best interest of both the public and the defendant.
See State v. Hammersley, 650 S.W.2d 352, 355 (Tenn. 1983): State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999)

If the district attorney general denies pretrial diversion, the denial must be in writing and must include “an enumeration of the evidence that was considered and a discussion of the factors considered and weight accorded each.” Pinkham, 955 S.W.2d at 960. This “requirement entails more than an abstract statement in the record that the district attorney general has considered these factors.” State v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989). Instead, the factors considered “must be clearly articulable and stated in the record. . . .” Id.; see also State v. Washington, 866 S.W.2d 950 (Tenn. 1993). “That a defendant, obviously, bears the burden of demonstrating suitability for diversion does not relieve the prosecutor’s obligation to examine all of the relevant factors and to set forth the required findings.” Pinkham, 955 S.W.2d at 960.

See also State v. Curry, 988 S.W.2d 153, 157 (Tenn. 1999)

If the Prosecutor denies the application for pretrial diversion, there is an appeal:
The defendant may appeal by petitioning the trial court for a writ of certiorari. Tenn. Code Ann. § 40-15-105(b)(3). The only evidence that may be considered by the trial court is the evidence that was considered by the district attorney general. State v. Winsett, 882 S.W.2d 806, 810 (Tenn. Crim. App. 1993). The trial court may conduct a hearing only to resolve any factual disputes raised by the prosecutor or the defendant concerning the application, but not to hear additional evidence that was not considered by the prosecutor. See Pinkham, 955 S.W.2d at 960.
The action of the prosecutor is presumptively correct, and it is subject to review by the trial court only for an abuse of discretion. The record in this regard must show an absence of any substantial evidence to support the refusal of the district attorney general to enter into a memorandum of understanding before a reviewing court can find an abuse of discretion. The appellate court must determine whether the trial court’s decision is supported by a preponderance of the evidence. Id
State v. Curry, 988 S.W.2d 153, 157-158 (Tenn. 1999)

Once completed must file an expungement order and pay a fee:
The Defendant or counsel must submit a Expungement Order to the judge to sign. The Defendant must pay a fee of $350.00 to the clerk of the court.

Judicial diversion- 40-35-313 (plea that is not formally entered)

A defendant is eligible for judicial diversion if he or she is found guilty of or pleads guilty or nolo contendere to a Class C, D, or E felony or a lesser crime, has not previously been convicted of a felony or a Class A misdemeanor, and is not seeking deferral for a sexual offense. T.C.A.

What exactly does judicial diversion mean?
Judicial diversion allows a court to defer proceedings without entering a judgment of guilt and to place the defendant on probation under reasonable conditions. T.C.A. 40-35-313(a)(1)(A). When the probationary period expires, if the defendant has completed probation successfully, the trial court will dismiss the proceedings against the defendant with no adjudication of guilt. See T.C.A. 40-35-313(a)(2). A person granted judicial diversion is not convicted of an offense because a judgment of guilt is never entered. See T.C.A. 40-35-313(a)(1)(A).

Certain offenses are ineligible:
The offense was not a Class A or B felony,
Or a C felony described in 40-15-105(a)(1)(B)(iii);
A sexual offense described in 40-15-105(a)(1)(B)(ii)
Or an offense prohibited by Title 55, chapter 10, part 4;
Vehicular assault as prohibited by 39-13-106Most sexual offenses, or attempted sexual offenses.
Abuse of elder or impaired adult 71-6-117
Abuse or neglect of an impaired adult with harm 71-6-119
Aggravated prostitution 39-13-516
DUI’s- No Pretrial or judicial diversion. Can’t be excluded from a persons driving record. See Tenn. Attorney Opinion No 05-041, April 5, 2005.

Discretionary/not automatic:
Eligibility under the diversion statute does not ensure the grant of diversion. The decision of whether to place a defendant on judicial diversion is within the sound discretion of the trial court. And that decision will not be reversed on appeal if there is any substantial record to support it. State v. Bonestel, 871 S.W. 2d 163, 168 (Tenn. Crim. App. 1993). Overruled on other grounds by State v. Hooper, 29 S.W. 3d 1,9 (Tenn. 2000).

What happens when a Defendant is granted a judicial diversion:
It is just like a guilty plea but the guilty plea is stayed and not formally entered as a conviction.
It is required by 40-35-313 that the Defendant be supervised by probation during the term of the diversion. This includes the payment of probation fees and probation requirements just like a person who pleads guilty.
If the Defendant fails to comply with the conditions of probation or obtains a new arrest or conviction before the end of the probationary period, the Court will conduct a hearing to determine whether to remove the defendant from diversion, sentence the Defendant and enter the conviction on the record.

Prerequisite/to qualify for consideration:
Must fill out and send a completed T.B.I diversion eligibility application to the T.BI and obtain a signed/approved diversion certificate from the T.B.I. There is a $100.00 fee.
Can send the application in before entering the plea (preferred method) or enter the conditional plea with the understanding that if the application shows the client doesn’t qualify, that the conviction doesn’t get diverted, (The preferred method is to obtain the eligibility form prior to entering into the proposed diversion).

TBI diversion application: Fill it out and fax it in to the T.B.I. The costs are $100.00 which is paid by credit card. It can take anywhere from a few days to a few weeks to complete the process. If the eligibility form is returned marked as not qualified because of unresolved charges, it is up to the attorney or Defendant to present certified documentation to the court and the T.B.I. as to the final disposition of those charges.

Factors the Court will consider in decision on whether to grant judicial diversion:

Pursuant to State v. Bonestel, 871 S.W. 2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W. 3d 1,9 (Tenn. 2000), the factors a court will consider are: Amenability to correction
The circumstances of the offense
The defendant’s criminal record
The accused social history
The defendant’s physical and mental health
The deterrence value to the Defendant as well as others

Additional factors the Court should consider:
Pursuant to State v, Cutshaw, 967 S.W. 2d 332, 343-44 (Tenn. , the following additional factors can be considered:

The accused’s attitude
Behavior since arrest
Home environment
Current drug usage
Emotional Stability
Past employment
General Reputation
Family Responsibilities
Attitude of law enforcement
Marital stability
The likelihood that diversion serve the ends of justice and both public and accused

Upon successful completion of judicial diversion, an Order of Expungment of Criminal Offender Record must be filed. The Clerk’s office will charge a $350.00 fee. If the Order is not submitted and signed by the judge or the fee is not paid, then the record will not be expunged.

Petition’s for Expunction of Record of Conviction pursuant to T.C.A. 40-32-101(g):
This was enacted on July 1, 2012. It allows for the expungement of certain Class E and Class A misdemeanors where a conviction had previously been entered. Must pay a fee, file a petition, and have a hearing in court.

Eligibility for offenses after November 1, 1989:

Can’t have pled or been found guilty to two or more crimes arising from separate events

You must have no other convictions in this or any other jurisdiction other than the one to be expunged.

You must have completed all the terms of sentence. At least 5 years must have elapsed from the completion of the sentence or the end of probation or parole.

If the sentence was for more than 3 years if cannot be expunged.

You must have met all conditions of supervised or unsupervised release as evidenced by a statement from the agency responsible for supervising. (parole, probation or supervising agency).

You must have a copy of the record of conviction. (judgment or guilty plea form). You must have paid all fines, restitution, court costs and provide a statement verifying that from the court clerk of the court where the conviction took place.

The Conviction must be for either a Class E. Felony on the inclusion list T.C.A. 40-32-101 (g) (1) (A); or a Misdemeanor (not on the exclusion list T.C.A. (g)(1)(B). The first section only list those Class E Felonies that can be expunged. It does not include all Class E. Felonies. Sexual offenses and other certain offenses are not on the list.

The misdemeanor exclusion list does not permit expungement of several types of offenses such as: assaults, domestic assault, violation of order of protection, child abuse, stalking, or DUI.
If the conditions of the sentence imposed required the defendant to have remained free from dependency on or abuse of alcohol or controlled substances, you must have remained free for a period of not less than 1 year.

You must have a photo id or government issued ID.

You must pay a $350.00 fee to the Clerk of the Court where the conviction was entered at the time you file the petition. You must file a petition which is a Petition For Expungement of Record Of Conviction Pursuant to T.C.A. 40-32-101(g). The District Attorneys General Conference and DA’s office have copies of the petition or form available.

Eligibility for offenses prior to November 1, 1989
This list is much broader

Must be a sentence of 3 years or less

Must never have had a previous conviction expunged either on judicial or pretrial diversion

The convicted offense didn’t involve the use or attempted use or threatened use of physical force against another.

The offense did not by its nature involve a substantial risk that physical force would be used.

The conviction did not involve the use or possession of a deadly weapon

The conviction was not for a sexual offense for which one had to register as a sexual offender or any sex offense against a minor.

The convicted offense did not result in death, serious bodily injury or bodily injury to a person

The offense did not involve the use of alcohol or drugs and a motor vehicle

The offense did not involve the sale or distribution of schedule 1, II, III, or IV controlled substance.

The convicted offense did not involve a minor as the victim of the offense

The convicted offense did not result in causing the victim to sustain a loss or $25,000 or more.

Hearing on Petition T.C.A. 40-32-101:
The Petitioner will file the petition in the court where the conviction was entered. Upon filing petition, the clerk will serve a copy on the district attorney. The district attorney has not more than 60 days after the petition is served on them to submit recommendations and serve those on the petitioner and the court.

Both the petitioner and DA may file evidence with the court

In making the decision, the burden of proof is that the court shall consider all evidence and weigh the interests of the petitioner against the best interests of justice and public safety.

If the Court denies the petition, the petitioner may not file another for at least 2 years from the date of the denial.

The statute doesn’t talk about the exact provisions for appealing the decision.

Specific issues:
No expungement if your found not guilty by reason of insanity-
State v. Jennings, 130 S.W. 3d 43 (2004 Tenn). The verdict of not guilty by reason of insanity was returned by a judge not a jury and a NGBRI while functioning as an acquittal, was a verdict indicating the Defendant could not be held criminal responsible because he or she was unable to appreciate the wrongfulness or nature of his conduct due to mental disease or defect.
No expungement if your convicted at trial and it is reversed by the Court of Criminal Appeals. Can’t expunge records of the Court of Criminal Appeals or Appellate courts
No expungement of a greater indicted offense when a Defendant is convicted of a lesser lesser within the same count.
40-32-101(a)(1) State v. Gerald Gifford, Court of Criminal Appeals at Knoxville, October 30, 2007.

Those before May 22, 2003, could have the greater indicted offense expunged pursuant to State v. James Michael Hanners, Court of Criminal Appeals at Nashville, April 12, 2007.

If convicted of one count and the other counts are dismissed that does not preclude the expungement of all the other counts in the indictment that were dismissed. State v. Gerald Gifford, Court of Criminal Appeals at Knoxville, April 23, 2008.

Certain Occupations:
Certification of Reserve/Part-time/Full-time Law Enforcement Officers.
Waivers for Certification. A person who has had misdemeanor charges expunged may be considered for certification.
May have to obtain a waiver,
POST rules prohibits consideration of waivers where a expungement was granted for felony convictions, narcotic violations that could have resulted in felony charges and domestic violence convictions.
However, no statutory exception exists that would allow the POST Commission to use a person’s expunged criminal history for the purpose of denying or revoking certification, and the POST Commission cannot create such an exception where the legislature has chosen not to do so. See Rodney Howard Wright v. Tennessee Peace Officer Standards and Training Commission, Court of Appeals at Nashville, April 29, 2008.

For Purposes of licensure actions “conviction” includes entry of a plea of guilty or nolo contendere, or entry of an order granting pre-trial or judicial diversion. Revocation Rule (0520-2-4-.01(9).

Informal diversion/Pass and dismiss: Where there is no guilty plea but a case is passed for a period of time and then dismissed if no problems or new charges. As long as there is no guilty plea, or entry into either a pretrial or judicial diversion, there is no requirement to send in a T.B.I eligibility form. However, at the end of the pass period, make sure and file an expungement order.

Juvenile Offender Act (Driving privileges): Pursuant to Tenn Code Annotated Section 55-10-711, when a person turns eighteen years of age they can have their records expunged. Can apply only upon expiration of the suspension by juvenile court and when all requirements for reinstatement have been met.

Orders of Protection: Tennessee law does not currently allow a previously issued order of protection to be removed from public records even if the order is later dismissed. However, all public records concerning any petition for an order of protection that has been denied following a hearing are to be removed and destroyed upon the application of the respondent. T.C.A. 40-32-101(a)(5).

If you’ve had an expungement, do you have to tell?
After an order of expungement is entered, the individual has a right to privacy and a statutory right prohibiting publication of expunged records. See Fann v. City of Fairview, 905 S.W. 2d 167 (Tenn. App. 1994).

The purpose of the expungement statute is to restore persons to the status they occupied before criminal proceedings began. State v. Sims, 745 S.W. 2d 191, 199 (Tenn. 1988).
No person as to whom such an order has been entered shall be held thereafter under any provision of the law to be guilty of perjury or otherwise giving a false statement by reason of such person’s failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of the person for any purpose. T.C.A. 40-35-313(b).

Job Applications etc: If job application for employment or a license ask about prior convictions, the person who had an expungement can truthfully answer no to a conviction. If the application ask if there were prior charges, must use your own judgment to answer truthfully.
Arrest information and what used to be public information might still be available:
Private companies buy the arrest information. They also collect information from court clerk’s as to criminal records. These companies sell the information for employment or background checks. They may obtain a person’s information while a charge is pending. If a charge is later expunged, they may or may not update the information.

If a background check is done and the information shows up regarding the prior charge or diversion, the person who had the diversion or expungement should contact and provide a copy of the Order of Expungement to the company.