Hi sda922,
"I plead guilty to misdemeanor vandalism."
Briefly, in Virginia expungement is only available to people who are
innocent of the charge, this means that you are ineligible to file an
expungement petition because of your guilty plea.
1) I plead guilty to the charge and was placed on 2 years probation. I
have no prior criminal record. And I am presuming vandalism is a crime
against property. Under Virginia Code 19.2-303.2 "Whenever any person
who has not previously been convicted of any felony pleads guilty to
or enters a PLEA OF NOT GUILTY to any crime..."
EXPUNGEMENT OF ARREST RECORDS AND DOCUMENTATION OF CRIMINAL
PROCEEDINGS IN VIRGINIA:
ELIGIBILITY AND PROCEDURES
WHO CAN SEEK EXPUNGEMENT OF CRIMINAL RECORDS?
"A defendant in a criminal case who appears and enters a ?not guilty?
plea, and then is tried by a judge or jury and is acquitted of all
charges."
I PLED GUILTY TO A MINOR CRIMINAL CHARGE (ON ADVICE OF MY ATTORNEY) A
LONG TIME AGO, CAN I GET THE RECORD EXPUNGED?
"No. Pleading guilty to a criminal charge precludes later claiming
innocence of the crime. It does not matter what the charge was
(misdemeanor or felony) or how much time has passed. In Virginia, the
record of a criminal conviction is permanent"
I WAS NOT CONVICTED OF A CRIMINAL CHARGE, DOES THAT MEAN THAT I AM
ELIGIBLE TO SEEK EXPUNGEMENT OF THE RECORDS?
"Not unless you can properly assert your innocence of the charge."
I PLED GUILTY TO A CRIMINAL CHARGE BUT I HAVE A REALLY GOOD
EXPLANATION WHY I NEED TO GET THIS EXPUNGED, CAN A JUDGE HELP ME?
"No. A judge does not have discretion to grant relief to someone who
does not meet the Legislature?s terms for eligibility, and present
Virginia policy clearly requires relief be limited to people who can
lawfully claim to be innocent. Sanderlin v. Commonwealth of Virginia,
58 Va. Cir. 375 (2002). The discretion granted by the Legislature to a
court is to grant or deny expungement to applicants who technically
meet the eligibility requirement, not to help applicants who may have
a sympathetic need for relief."
MY CRIMINAL DEFENSE ATTORNEY SAID THAT BECAUSE I WAS CHARGED WITH A
MISDEMEANOR AND I HAVE NO PRIOR RECORD, THE ACQUITTAL MEANS I SHOULD
BE GRANTED AN EXPUNGEMENT. IS THAT CORRECT?
"Yes. In this circumstance if a petitioner seeking expungement has no
prior criminal record and the arrest was for a misdemeanor violation,
then the applicant shall be entitled to expungement relief unless the
Commonwealth Attorney?s office presents good cause at the hearing on a
petition to show the court why the remedy should not be granted.
Virginia Code § 19.2-392.2-F. This (only one criminal case, a
misdemeanor charge and no prior criminal record) presents a simple
expungement application (see form petition) that is most likely to be
approved by a judge. This is an application that may be easiest to
bring, without assistance of counsel."
V. IF YOU ARE NOT ELIGIBLE FOR EXPUNGEMENT
"Because the scope of expungement under Virginia law (and the standard
for granting Absolute Pardons) are both focused on limiting relief to
juveniles and adults who can claim innocence, many criminal defendants
will not qualify for relief from the existence of a criminal
conviction record."
http://lsnv.org/Information_Expungement.pdf
2)6. Can you explain section 19.2-392.2, section A.2:
"§ 19.2-392.2. Expungement of police and court records.
A. If a person is charged with the commission of a crime and ?.. 2. A
nolle prosequi is taken or the charge is otherwise dismissed,
including dismissal by accord and satisfaction pursuant to § 19.2-151,
or"
does the last sentence of §19.2-303.2 apply to this ("otherwise
dismissed" due to the dismissal of proceedings)?
Does that mean I am entitled to an expungement because I am a
first-time misdemeanor offender?
WHAT DOES NOLLE PROSEQUI MEAN, AND DOES THIS MEAN I AM ELIGIBLE TO
SEEK EXPUNGEMENT OF THE RECORDS?
"This Latin term, nolle prosequi, means that the Commonwealth
Attorney?s office will not further prosecute the criminal charge(s).
This is a motion made by the prosecutor, requesting that the court
dismiss the case against the defendant. Under Virginia law, a nolle
prosequi of a charge enables the defendant to later ?file a petition
setting forth the relevant facts and requesting expungement of the
police records and the court records relating to the charge.? Virginia
Code § 19.2-392.2-A(2). Dismissal of a criminal charge under this
provision does not determine guilt, and therefore a defendant is able
legally to later claim innocence."
http://lsnv.org/Information_Expungement.pdf
3) Lastly, the evidence against me was never found and never entered
as evidence in my hearing (the cops lost it somehow while they were
booking me). Therefore, there was no one to claim injury. Do I have
grounds to re-try my case, appeal it in any way, or does that help me
with a petition to expunge my record?
You could ask for a pardon from the governor. The only type of pardon
which would allow you to file an expungement petition is "Absolute
Pardon" which is likely unavailable to you. However, you could ask for
a "Simple Pardon". Although your records would not be expunged, you
would be officially forgiven which would help with employment and
other issues.
Secretary of the Commonwealth of Virgina
"It is the Governor's policy to restrict such acts of clemency to
exceptional situations, as he is most reluctant to substitute his
judgment for that of the courts. If an individual feels able to
provide substantial evidence of such exceptional circumstances, the
above- required information may be submitted to the Governor. If a
petition for clemency is denied, the petitioner has no right of
appeal, but may reapply after a two-year period.
There are three types of pardons:
1) An Absolute Pardon is rarely granted because it is predicated on
the belief that the petitioner was unjustly convicted and is innocent.
An absolute pardon is the only form of executive clemency that will
allow the petitioner to petition the court for an expungement of
record.
2) A Conditional Pardon is only available to those who are currently
incarcerated. It is usually granted for early release and carries
certain conditions, the violation of which can result in
re-incarceration. There must be extraordinary circumstances for an
inmate to be considered for such a pardon.
3) A Simple Pardon is another matter. While it does not expunge the
record, it does constitute official forgiveness and often serves as a
means for the petitioner to advance in employment, education, and
self-esteem. Evidence of good citizenship is required, as are
favorable recommendations from the official involved in the case and
the Virginia Parole Board.
Should you have any questions concerning executive clemency, please
contact, Patricia Tucker at (804) 692-0105."
http://www.commonwealth.virginia.gov/Clemency/PardonLetterInstructs.pdf
I was glad to find this for you and I sincerely hope that it helps. If
you have any questions, please post a clarification request and wait
for me to respond before closing/rating my answer.
Thank you,
hummer
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