The collateral consequences of a criminal conviction can haunt every aspect of your life long after serving your sentence. Securing employment, affordable housing, college admission, or credit becomes a challenge. Fortunately, you can expunge some convictions under Penal Code Section 1203.4 by withdrawing the guilty or no-contendere plea and entering a not-guilty plea, which can lead to a case dismissal. If you secure a dismissal, some, but not all, of the disabilities of the criminal record will cease to haunt you.
An expungement is available for felony and misdemeanor offenses, but the processes differ. Understanding the difference between the expungement processes for misdemeanor and felony violations is critical to obtaining a clean slate.
California Expungement Overview
PEN 1203.4 is the statute that defines expungement as a process that dismisses particular offenses from your record. According to the law, expungement involves petitioning the court to vacate a guilty or no-contest plea and enter a plea of not guilty. You qualify to file the petition if you have completed felony or misdemeanor probation and served your jail or prison sentence.
Once the petition is approved, or if you were found guilty after pleading not guilty, the court will reopen your case and dismiss the guilty verdict. It is the reason for a dismissal. A case dismissal releases you from some disabilities and legal penalties of a conviction. It will not delete your criminal record. Instead, when someone runs background checks, they are “dismissed in the interest of justice.” This allows you to confidently state that you have never been convicted or have no criminal history, should the question arise in some interviews where it is permitted by law.
Misdemeanor vs Felony Offenses
Before delving into the expungement eligibility criteria, it is essential to understand the distinctions between felonies and misdemeanors. After an arrest for a criminal violation, the prosecutor can charge you with a felony or misdemeanor offense contingent on the facts of your case. Understanding the difference between the two classifications helps you navigate the case dismissal process, as the eligibility criteria for felony offenses differ from those of misdemeanor charges.
A felony refers to a serious crime that may involve violence, financial harm, or other significant misconduct. A felony crime attracts lengthy imprisonment, probation, and substantial fines. The minimum jail confinement is twelve months, while the least amount the court imposes as a fine for a felony conviction is no more than $10,000 or more, depending on the crime’s nature. Moreover, felonies will result in probation periods of 36 to 60 months, during which probation rules will be stricter than those for misdemeanor probation. Such offenses require very pronounced court procedures, including expungement, due to their severe sanctions.
In contrast, misdemeanors are generally less serious offenses but may still involve injury or financial loss. A misdemeanor conviction typically attracts less than twelve months of jail incarceration, no more than $1,000 in court fines, and misdemeanor probation lasting for at most 36 months with no strict supervision.
California Expungement Eligibility
The process of expunging or dismissing your record depends on whether you face misdemeanor or felony charges. The qualification requirements are as follows:
Eligibility Criteria for Expunging a Misdemeanor Conviction Record
The type of conviction you have on your record impacts your eligibility to file a dismissal petition. The qualifications you must satisfy to file a misdemeanor conviction expungement petition are:
- You must not have an active criminal case
- You must not be serving a misdemeanor probation or jail sentence for another offense
- You have adhered to all probationary terms
- You have completed your informal or summary probation sentence
Examples of misdemeanor convictions that qualify for expunction are:
- Vandalism
- Petty theft
- Drug possession under the Health and Safety Code 11350
- Trespassing
- Operating a car on suspended driving privileges
- Indecent exposure
- Domestic battery
- Battery
- Public drunkenness
- Driving under the influence without bodily harm under Vehicle Code 23152(a)
Felony Sentence Dismissal Eligibility
You can expunge a felony sentence record, but the process is more complicated than that of misdemeanors. The qualifications you must meet to expunge a felony criminal record are:
- You do not have an active criminal charge
- You have met all your sentencing terms, including serving your jail term, paying victim restitution, and compensating your victim for both economic and non-economic losses.
- You have completed formal probation
- You are not currently serving a sentence for a different criminal violation
Even if you meet this qualification, you can never dismiss or expunge some felonies. Any violent or serious felony will stay on your record. Additionally, you cannot dismiss a felony with an obligation to register as a sex offender with the Megan’s Law Site. felonies ineligible for expunction are:
- Murder or homicide
- Lewd or lascivious act with a minor
- Sodomy involving a minor
- Oral copulation with a minor
- Fraud charges
- Bribery
If you have served time in prison for a felony guilty verdict, you cannot expunge your record, even if the confinement was for a formal probation violation. The only exception is if, under Proposition 47 realignment, you were sentenced to county jail.
Waiting Period for Misdemeanor Conviction Dismissal or Expunction
Most misdemeanor conviction records are eligible for expungement. The entire process takes at least eight weeks. The duration the process takes hinges on the jurisdiction of the court handling your case, the matter’s complexity, and the years that have passed since the conviction.
You must submit a petition in person or with the help of an experienced post-conviction relief attorney; otherwise, the court will not automatically expunge the conviction. Your probation officer can also submit a petition in writing on your behalf. If you do not request a record dismissal, the records will stay visible, and any person running criminal record checks will come across them.
If you have served probation and want a clean start from your past mistakes, consult with a knowledgeable attorney. The attorney will evaluate your qualification for the post-conviction relief and guide you in petitioning the court for a dismissal of your misdemeanor conviction.
The advantage of expunging a misdemeanor record is that once you have completed your summary probation, there is no mandatory waiting period once probation is successfully completed. Nevertheless, if the misdemeanor conviction did not result in a probation sentence, you should wait for twelve months from the date of the deferred entry judgment (DEJ) to lodge a petition. Fortunately, many misdemeanor guilty verdicts result in probation sentences, meaning you can submit your record dismissal application immediately after you complete the probationary term.
Waiting Duration for Felony Conviction Dismissal
The time you must wait to petition for expunction of a felony conviction depends on the type of sentence the court imposes. When the felony conviction results in jail incarceration without mandatory supervision, you have twenty-four months after the jail sentence to submit a PEN 1203.4 petition. However, the waiting time is reduced to twelve months if you are sentenced to jail confinement with mandatory supervision.
Under the exceptions of Prop 47, the court has the discretion to approve your PEN 1203.4 petition even if you served a prison sentence if:
- Doing so will be in the justice’s best interest
- Your felony conviction now attracts a jail sentence
- It has been at least twenty-four months since you completed your sentence
Therefore, if you have served time in prison and qualify for expungement under Proposition 47, you should wait 24 months after completing your prison sentence to apply for record dismissal.
If the felony record is not eligible for expungement even under Prop 47, you can explore other post-conviction relief options, such as the governor’s pardon and the certificate of rehabilitation. However, these options do not erase the criminal record. They act as proof of rehabilitation in case an employer notifies you that they are denying you a job because of your criminal record. The pardon or rehabilitation certificates act as mitigating factors, increasing your chances of being considered for a position.
Steps for Petitioning for Felony Conviction Dismissal
After July 2024, the court will automatically seal many cases upon dismissal or completion of probation. If your case is among those that undergo automatic dismissal, you do not have to petition for expungement. However, before the decision, consult with a knowledgeable criminal attorney.
The timelines for applying for expunction and the paperwork involved are complex, making it necessary to have an attorney seasoned in post-conviction relief. Your attorney will first review your case to determine if you are eligible for relief. If you are qualified, the attorney will obtain the relevant forms online or in the courthouse.
If the felony conviction was for a wobbler, the attorney will first request a charge reduction from a felony to a misdemeanor under PC 17(b)(3). Once the charge has been reduced, the attorney can obtain the proper forms you should fill out. Each conviction record will require a separate form. Additionally, you might need to accompany the forms with character reference forms.
After you complete the forms, you will submit them to the court that was handling the case. You will receive a response from the court after five months of the submission date.
When filing, ensure you follow the court’s policies. Some require the physical delivery of the petitions, while others recommend mailing them. Once you deliver the petition, you should pay the filing fee, which also varies depending on the court. If you are unable to raise the money, you can apply for financial assistance.
Once you have filed the petition, you must notify the prosecutor of the dismissal proceeding within 15 days to give them ample time to review the forms and evidence.
Prepare adequately for the hearing and appear in person to show the judge you are committed to a new start. The judge will review the facts presented by both sides in the proceeding to issue a verdict. If you demonstrate you can obtain and maintain a job, you have completed community hours, and you do not have a fresh conviction, the court will likely grant your petition. If the verdict of the hearing is in your favor, the judge will let you withdraw the no-contest or guilty plea in exchange for a not guilty plea. If you were convicted after pleading not guilty, the conviction will be set aside. The next step will be to dismiss the case and vacate the sentence.
Misdemeanor Expungement Application
Expunging a misdemeanor is relatively straightforward, but you will still require the guidance of an experienced attorney. After reviewing your case and determining that you qualify to expunge your record, the attorney will fill out the petition forms and file them with the relevant court. Qualification means you have completed probation or your jail sentence.
If you have not yet completed probation and seek an early expungement, your attorney must request an early termination. A hearing will be scheduled so that you can demonstrate that you have been rehabilitated and that allowing you to expunge the misdemeanor record will be in the justice’s interest. If you have served a substantial portion of probation and demonstrated compliance and have not engaged in any violation, the court will grant your request.
While you must adhere to all misdemeanor probationary terms to qualify for an expunction, your attorney can still persuade the court to overlook the violation and expunge your record. The judge can grant or deny expunction, regardless of whether a probation violation has occurred. The court will consider your general probation performance, the severity of the baseline sentence, and your criminal record to decide whether to overlook the violation.
You should apply for early termination and expunction of your misdemeanor record simultaneously. After filing the petition, the court will schedule a hearing. You should notify the prosecutor of the hearing in advance so that they can prepare any objections they may have. After the proceeding, the court will issue a verdict.
Find a Seasoned Post-Conviction Attorney Near Me
Employers, learning institutions, professional licensing boards, and property managers conduct criminal record background checks on their candidates before making significant decisions. If you have a criminal record, it could disadvantage you compared to other applicants. A record expungement or dismissal can give you a fresh start, relieving you of many of the barriers associated with a prior conviction.
The process of expunction differs depending on whether you are charged with a felony or a misdemeanor.
At Long Beach Criminal Attorney, we can explain the difference between expunging a felony and a misdemeanor and help you with the filing process to achieve a clean record. Call us at 562-308-7807 to arrange a no-obligation consultation.