Bill Text: MS HB1247 | 2015 | Regular Session | Introduced
Bill Title: Civil Rights Petition for Expungement; authorize the Attorney General to create a standard form.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Failed) 2015-02-03 - Died In Committee [HB1247 Detail]
Download: Mississippi-2015-HB1247-Introduced.html
MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Judiciary A
By: Representative Blackmon
House Bill 1247
AN ACT TO REQUIRE THE ATTORNEY GENERAL TO CREATE A STANDARD PETITION FOR DISMISSAL FORM THAT IS TO BE USED BY ANY PERSON WHO DESIRES TO HAVE A CONVICTION EXPUNGED; TO PROVIDE THE PROCEDURE FOR REVIEW OF SUCH PETITION BY A JUDGE IN THE APPROPRIATE COURT; TO BRING FORWARD SECTIONS 99-19-71, 99-15-59, 99-15-123, 99-15-57 AND 21-23-7, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR EXPUNGEMENT, FOR PURPOSES OF AMENDMENT; TO BRING FORWARD SECTION 99-19-72, MISSISSIPPI CODE OF 1972, WHICH PROVIDES A FEE RELATED TO PETITIONS FOR EXPUNGEMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The Attorney General shall create a standard petition for dismissal form for expungement of misdemeanor convictions for crimes committed from January 1, 1955 to December 31, 1965, relating to participation in the Civil Rights Movement. The forms shall be made available to all courts throughout the state and on the Attorney General's website. Any person may complete the form and file the petition with the appropriate court clerk for dismissal of a conviction with the justice, county, circuit or municipal court, in which the conviction was had, for an order to expunge any such conviction from all public records.
Upon receipt of such petition, the judge may (a) review the petition and issue an order to expunge the conviction from public record, (b) deny the petition and state the reasons for the denial on the record, or (c) set a date for a hearing with notice to the petitioner.
Nothing in this section authorizes a judge to expunge a conviction for any crime that is not otherwise authorized by law to be expunged.
SECTION 2. Section 99-19-72, Mississippi Code of 1972, is amended as follows:
99-19-72. (1) Except as otherwise provided, a filing fee of One Hundred Fifty Dollars ($150.00) is hereby levied on each petition to expunge an offense under Section 99-19-71 to be collected by the circuit clerk and distributed as follows:
(a) One Hundred Dollars ($100.00) to be deposited into the Judicial System Operation Fund;
(b) Forty Dollars ($40.00) to be deposited into the District Attorneys Operation Fund; and
(c) Ten Dollars ($10.00) to be retained by the circuit clerk collecting the fee for administration purposes.
(2) A filing fee of Fifty Dollars ($50.00) is hereby levied on each Civil Rights petition described in Section 1 of this act.
SECTION 3. Section 99-19-71, Mississippi Code of 1972, is brought forward as follows:
99-19-71. (1) Any person who has been convicted of a misdemeanor, excluding a conviction for a traffic violation, and who is a first offender, may petition the justice, county, circuit or municipal court in which the conviction was had for an order to expunge any such conviction from all public records.
(2) (a) Any person who has been convicted of one (1) of the following felonies may petition the court in which the conviction was had for an order to expunge one (1) conviction from all public records five (5) years after the successful completion of all terms and conditions of the sentence for the conviction: a bad check offense under Section 97-19-55; possession of a controlled substance or paraphernalia under Section 41-29-139(c) or (d); false pretense under Section 97-19-39; larceny under Section 97-17-41; malicious mischief under Section 97-17-67; or shoplifting under Section 97-23-93. A person is eligible for only one (1) felony expunction under this paragraph.
(b) Any person who was under the age of eighteen (18) years when he committed a felony may petition the court in which the conviction was had for an order to expunge one (1) conviction from all public records five (5) years after the successful completion of all terms and conditions of the sentence for the conviction; however, eligibility for expunction shall not apply to the following felonies: rape under Sections 97-3-65 and 97-3-71; sexual battery under Section 97-3-95; murder under Section 97-3-21; manslaughter under Section 97-3-25; carjacking under Sections 97-3-113 through 97-3-117; burglary of a commercial establishment or occupied dwelling; cyberstalking under Section 97-45-15; exploitation of children by the use of computers or other means under Sections 97-5-31 through 97-5-37; armed robbery under Section 97-3-79; and any felony that, in the determination of the circuit court, is a violent crime or a felony that is related to the distribution of a controlled substance and in the court's discretion it should not be expunged. A person is eligible for only one (1) felony expunction under this paragraph.
(c) The petitioner shall give ten (10) days' written notice to the district attorney before any hearing on the petition. In all cases, the court wherein the petition is filed may grant the petition if the court determines, on the record or in writing, that the applicant is rehabilitated from the offense which is the subject of the petition. In those cases where the court denies the petition, the findings of the court in this respect shall be identified specifically and not generally.
(3) Upon entering an order of expunction under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender. The order of expunction shall not preclude a district attorney's office from retaining a nonpublic record thereof for law enforcement purposes only. The existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf. The effect of the expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted. No person as to whom an expunction order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender. A person as to whom an order has been entered, upon request, shall be required to advise the court, in camera, of the previous conviction and expunction in any legal proceeding wherein the person has been called as a prospective juror. The court shall thereafter and before the selection of the jury advise the attorneys representing the parties of the previous conviction and expunction.
(4) Upon petition therefor, a justice, county, circuit or municipal court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
(5) No public official is eligible for expunction under this section for any conviction related to his official duties.
SECTION 4. Section 99-15-59, Mississippi Code of 1972, is brought forward as follows:
99-15-59. Any person who is arrested, issued a citation, or held for any misdemeanor and not formally charged or prosecuted with an offense within twelve (12) months of arrest, or upon dismissal of the charge, may apply to the court with jurisdiction over the matter for the charges to be expunged.
SECTION 5. Section 99-15-123, Mississippi Code of 1972, is brought forward as follows:
99-15-123. (1) In the event an offender successfully completes a pretrial intervention program, the court shall make a noncriminal disposition of the charge or charges pending against the offender.
(2) In the event the offender violates the conditions of the program agreement: (a) the district attorney may terminate the offender's participation in the program, (b) the waiver executed pursuant to Section 99-15-115 shall be void on the date the offender is removed from the program for the violation, and (c) the prosecution of pending criminal charges against the offender shall be resumed by the district attorney.
(3) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
SECTION 6. Section 99-15-57, Mississippi Code of 1972, is brought forward as follows:
99-15-57. (1) Any person who pled guilty within six (6) months prior to the effective date of Section 99-15-26, Mississippi Code of 1972, and who would have otherwise been eligible for the relief allowed in such section, may apply to the court in which such person was sentenced for an order to expunge from all official public records all recordation relating to his arrest, indictment, trial, finding of guilty and sentence. If the court determines, after hearing, that such person has satisfactorily served his sentence or period of probation and parole, pled guilty within six (6) months prior to the effective date of Section 99-15-26 and would have otherwise been eligible for the relief allowed in such section, it may enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or indictment. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or trial in response to any inquiry made of him for any purpose.
(2) Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
SECTION 7. Section 21-23-7, Mississippi Code of 1972, is brought forward as follows:
21-23-7. (1) The municipal judge shall hold court in a public building designated by the governing authorities of the municipality and may hold court every day except Sundays and legal holidays if the business of the municipality so requires; provided, however, the municipal judge may hold court outside the boundaries of the municipality but not more than within a sixty-mile radius of the municipality to handle preliminary matters and criminal matters such as initial appearances and felony preliminary hearings. The municipal judge shall have the jurisdiction to hear and determine, without a jury and without a record of the testimony, all cases charging violations of the municipal ordinances and state misdemeanor laws made offenses against the municipality and to punish offenders therefor as may be prescribed by law. Except as otherwise provided by law, criminal proceedings shall be brought by sworn complaint filed in the municipal court. Such complaint shall state the essential elements of the offense charged and the statute or ordinance relied upon. Such complaint shall not be required to conclude with a general averment that the offense is against the peace and dignity of the state or in violation of the ordinances of the municipality. He may sit as a committing court in all felonies committed within the municipality, and he shall have the power to bind over the accused to the grand jury or to appear before the proper court having jurisdiction to try the same, and to set the amount of bail or refuse bail and commit the accused to jail in cases not bailable. The municipal judge is a conservator of the peace within his municipality. He may conduct preliminary hearings in all violations of the criminal laws of this state occurring within the municipality, and any person arrested for a violation of law within the municipality may be brought before him for initial appearance. The municipal court shall have jurisdiction of any case remanded to it by a circuit court grand jury. The municipal court shall have civil jurisdiction over actions filed pursuant to and as provided in Title 93, Chapter 21, Mississippi Code of 1972, the Protection from Domestic Abuse Act.
(2) In the discretion of the court, where the objects of justice would be more likely met, as an alternative to imposition or payment of fine and/or incarceration, the municipal judge shall have the power to sentence convicted offenders to work on a public service project where the court has established such a program of public service by written guidelines filed with the clerk for public record. Such programs shall provide for reasonable supervision of the offender and the work shall be commensurate with the fine and/or incarceration that would have ordinarily been imposed. Such program of public service may be utilized in the implementation of the provisions of Section 99-19-20, and public service work thereunder may be supervised by persons other than the sheriff.
(3) The municipal judge may solemnize marriages, take oaths, affidavits and acknowledgments, and issue orders, subpoenas, summonses, citations, warrants for search and arrest upon a finding of probable cause, and other such process under seal of the court to any county or municipality, in a criminal case, to be executed by the lawful authority of the county or the municipality of the respondent, and enforce obedience thereto. The absence of a seal shall not invalidate the process.
(4) When a person shall be charged with an offense in municipal court punishable by confinement, the municipal judge, being satisfied that such person is an indigent person and is unable to employ counsel, may, in the discretion of the court, appoint counsel from the membership of The Mississippi Bar residing in his county who shall represent him. Compensation for appointed counsel in criminal cases shall be approved and allowed by the municipal judge and shall be paid by the municipality. The maximum compensation shall not exceed Two Hundred Dollars ($200.00) for any one (1) case. The governing authorities of a municipality may, in their discretion, appoint a public defender(s) who must be a licensed attorney and who shall receive a salary to be fixed by the governing authorities.
(5) The municipal judge of any municipality is hereby authorized to suspend the sentence and to suspend the execution of the sentence, or any part thereof, on such terms as may be imposed by the municipal judge. However, the suspension of imposition or execution of a sentence hereunder may not be revoked after a period of two (2) years. The municipal judge shall have the power to establish and operate a probation program, dispute resolution program and other practices or procedures appropriate to the judiciary and designed to aid in the administration of justice. Any such program shall be established by the court with written policies and procedures filed with the clerk of the court for public record. Subsequent to original sentencing, the municipal judge, in misdemeanor cases, is hereby authorized to suspend sentence and to suspend the execution of a sentence, or any part thereof, on such terms as may be imposed by the municipal judge, if (a) the judge or his or her predecessor was authorized to order such suspension when the sentence was originally imposed; and (b) such conviction (i) has not been appealed; or (ii) has been appealed and the appeal has been voluntarily dismissed.
(6) Upon prior notice to the municipal prosecuting attorney and upon a showing in open court of rehabilitation, good conduct for a period of two (2) years since the last conviction in any court and that the best interest of society would be served, the court may, in its discretion, order the record of conviction of a person of any or all misdemeanors in that court expunged, and upon so doing the said person thereafter legally stands as though he had never been convicted of the said misdemeanor(s) and may lawfully so respond to any query of prior convictions. This order of expunction does not apply to the confidential records of law enforcement agencies and has no effect on the driving record of a person maintained under Title 63, Mississippi Code of 1972, or any other provision of said Title 63.
(7) Notwithstanding the provisions of subsection (6) of this section, a person who was convicted in municipal court of a misdemeanor before reaching his twenty-third birthday, excluding conviction for a traffic violation, and who is a first offender, may utilize the provisions of Section 99-19-71, to expunge such misdemeanor conviction.
(8) In the discretion of the court, a plea of nolo contendere may be entered to any charge in municipal court. Upon the entry of a plea of nolo contendere the court shall convict the defendant of the offense charged and shall proceed to sentence the defendant according to law. The judgment of the court shall reflect that the conviction was on a plea of nolo contendere. An appeal may be made from a conviction on a plea of nolo contendere as in other cases.
(9) Upon execution of a sworn complaint charging a misdemeanor, the municipal court may, in its discretion and in lieu of an arrest warrant, issue a citation requiring the appearance of the defendant to answer the charge made against him. On default of appearance, an arrest warrant may be issued for the defendant. The clerk of the court or deputy clerk may issue such citations.
(10) The municipal court shall have the power to make rules for the administration of the court's business, which rules, if any, shall be in writing filed with the clerk of the court and shall include the enactment of rules related to the court's authority to issue domestic abuse protection orders pursuant to Section 93-21-1 et seq.
(11) The municipal court shall have the power to impose punishment of a fine of not more than One Thousand Dollars ($1,000.00) or six (6) months' imprisonment, or both, for contempt of court. The municipal court may have the power to impose reasonable costs of court, not in excess of the following:
Dismissal of any affidavit, complaint or charge
in municipal court..................................... $ 50.00
Suspension of a minor's driver's license in lieu of
conviction............................................. $ 50.00
Service of scire facias or return "not found"..... $ 20.00
Causing search warrant to issue or causing
prosecution without reasonable cause or refusing to
cooperate after initiating action...................... $ 100.00
Certified copy of the court record................ $ 5.00
Service of arrest warrant for failure to answer
citation or traffic summons............................ $ 25.00
Jail cost per day - actual jail cost paid by the municipality but not to exceed............................................. $ 35.00
Service of court documents related to the filing
of a petition or issuance of a protection from domestic
abuse order under Title 93, Chapter 21, Mississippi
Code of 1972 .......................................... $ 25.00
Any other item of court cost...................... $ 50.00
No filing fee or such cost shall be imposed for the bringing of an action in municipal court.
(12) A municipal court judge shall not dismiss a criminal case but may transfer the case to the justice court of the county if the municipal court judge is prohibited from presiding over the case by the Canons of Judicial Conduct and provided that venue and jurisdiction are proper in the justice court. Upon transfer of any such case, the municipal court judge shall give the municipal court clerk a written order to transmit the affidavit or complaint and all other records and evidence in the court's possession to the justice court by certified mail or to instruct the arresting officer to deliver such documents and records to the justice court. There shall be no court costs charged for the transfer of the case to the justice court.
(13) A municipal court judge shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case.
SECTION 8. This act shall take effect and be in force from and after July 1, 2015.
