Bill Text: MS HB622 | 2022 | Regular Session | Introduced
Bill Title: Expungement; require the court to do so when charges are dismissed or dropped.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2022-02-01 - Died In Committee [HB622 Detail]
Download: Mississippi-2022-HB622-Introduced.html
MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Judiciary B
By: Representative Bain
House Bill 622
AN ACT TO REQUIRE ANY COURT IN WHICH AN ARREST WAS MADE, THE PERSON ARRESTED WAS RELEASED AND THE CASE WAS DISMISSED OR THE CHARGES WERE DROPPED, THERE WAS NO DISPOSITION OF SUCH CASE, OR THE PERSON WAS FOUND NOT GUILTY AT TRIAL TO EXPUNGE THE RECORD OF SUCH PERSON OF ALL OFFICIAL PUBLIC RECORDS, ALL RECORDATION RELATING TO AN ARREST, INDICTMENT, TRIAL, FINDING OF GUILTY AND SENTENCE OF ANY CASE; TO PROVIDE THAT THE EFFECT OF SUCH ORDER SHALL BE TO RESTORE SUCH PERSON, IN THE CONTEMPLATION OF THE LAW, TO THE STATUS HE OR SHE OCCUPIED BEFORE SUCH ARREST OR INDICTMENT; TO AMEND SECTIONS 9-23-23, 99-15-59, 99-15-57, 99-15-123, 99-15-26, 41-29-150, 9-11-15 AND 21-23-7, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Any court in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped, there was no disposition of such case, or the person was found not guilty at trial shall automatically expunge, without requirement of a petition from the person, all official public records and recordation relating to the arrest, indictment, trial, finding of guilty and sentence of any case from. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he or she occupied before such arrest or indictment.
SECTION 2. Section 9-23-23, Mississippi Code of 1972, is amended as follows:
9-23-23. If the participant completes all requirements imposed upon him by the intervention court, including the payment of fines and fees assessed and not waived by the court, the charge and prosecution shall be dismissed. If the defendant or participant was sentenced at the time of entry of plea of guilty, the successful completion of the intervention court order and other requirements of probation or suspension of sentence will result in the record of the criminal conviction or adjudication being expunged by the court with jurisdiction over the matter. However, no expunction of any implied consent violation shall be allowed.
SECTION 3. Section 99-15-59, Mississippi Code of 1972, is amended 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 * * * shall have the charges expunged
by the court with jurisdiction over the matter * * *.
SECTION 4. Section 99-15-57, Mississippi Code of 1972, is amended as follows:
99-15-57. * * *
* * * The court shall expunge the record of all official
public records, all recordation relating to an arrest, indictment, trial,
finding of guilty and sentence of any case in which an arrest was made, the
person arrested was released and the case was dismissed or the charges were
dropped, there was no disposition of such case, or the person was found not
guilty at trial. 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.
SECTION 5. Section 99-15-123, Mississippi Code of 1972, is amended 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) * * * 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 99-15-26, Mississippi Code of 1972, is amended as follows:
99-15-26. (1) (a) In all criminal cases, felony and misdemeanor, other than crimes against the person, a crime of violence as defined in Section 97-3-2, a violation of Section 97-11-31, or crimes in which a person unlawfully takes, obtains or misappropriates funds received by or entrusted to the person by virtue of his or her public office or employment, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant made on or after July 1, 2014, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(b) In all misdemeanor criminal cases, other than crimes against the person, the justice or municipal court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(c) Notwithstanding paragraph (a) of this subsection (1), in all criminal cases charging a misdemeanor of domestic violence as defined in Section 99-3-7(5), a circuit, county, justice or municipal court shall be empowered, upon the entry of a plea of guilty by the criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subsection (2) of this section.
(d) No person having previously qualified under the provisions of this section shall be eligible to qualify for release in accordance with this section for a repeat offense. A person shall not be eligible to qualify for release in accordance with this section if charged with the offense of trafficking of a controlled substance as provided in Section 41-29-139(f) or if charged with an offense under the Mississippi Implied Consent Law. Violations under the Mississippi Implied Consent Law can only be nonadjudicated under the provisions of Section 63-11-30.
(2) (a) Conditions which the circuit, county, justice or municipal court may impose under subsection (1) of this section shall consist of:
(i) Reasonable restitution to the victim of the crime.
(ii) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(iii) Payment of a fine not to exceed the statutory limit.
(iv) Successful completion of drug, alcohol, psychological or psychiatric treatment, successful completion of a program designed to bring about the cessation of domestic abuse, or any combination thereof, if the court deems treatment necessary.
(v) The circuit or county court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed five (5) years. The justice or municipal court, in its discretion, may require the defendant to remain in the program subject to good behavior for a period of time not to exceed two (2) years.
(b) Conditions which the circuit or county court may impose under subsection (1) of this section also include successful completion of an effective evidence-based program or a properly controlled pilot study designed to contribute to the evidence-based research literature on programs targeted at reducing recidivism. Such program or pilot study may be community based or institutionally based and should address risk factors identified in a formal assessment of the offender's risks and needs.
(3) When the court has imposed upon the defendant the conditions set out in this section, the court shall release the bail bond, if any.
(4) Upon successful completion of the court-imposed conditions permitted by subsection (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
(5) * * * 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, there was no
disposition of such case, or the person was found not guilty at trial.
SECTION 7. Section 41-29-150, Mississippi Code of 1972, is amended as follows:
41-29-150. (a) Any person convicted under Section 41-29-139 may be required, in the discretion of the court, as a part of the sentence otherwise imposed, or in lieu of imprisonment in cases of probation or suspension of sentence, to attend a course of instruction conducted by the bureau, the State Board of Health, or any similar agency, on the effects, medically, psychologically and socially, of the misuse of controlled substances. The course may be conducted at any correctional institution, detention center or hospital, or at any center or treatment facility established for the purpose of education and rehabilitation of those persons committed because of abuse of controlled substances.
(b) Any person convicted under Section 41-29-139 who is found to be dependent upon or addicted to any controlled substance shall be required, as a part of the sentence otherwise imposed, or in lieu of imprisonment in cases of parole, probation or suspension of sentence, to receive medical treatment for such dependency or addiction. The regimen of medical treatment may include confinement in a medical facility of any correctional institution, detention center or hospital, or at any center or facility established for treatment of those persons committed because of a dependence or addiction to controlled substances.
(c) Those persons previously convicted of a felony under Section 41-29-139 and who are now confined at the Mississippi State Hospital at Whitfield, Mississippi, or at the East Mississippi State Hospital at Meridian, Mississippi, for the term of their sentence shall remain under the jurisdiction of the Mississippi Department of Corrections and shall be required to abide by all reasonable rules and regulations promulgated by the director and staff of said institutions and of the Department of Corrections. Any persons so confined who shall refuse to abide by said rules or who attempt an escape or who shall escape shall be transferred to the State Penitentiary or to a county jail, where appropriate, to serve the remainder of the term of imprisonment; this provision shall not preclude prosecution and conviction for escape from said institutions.
(d) (1) If any person who
has not previously been convicted of violating Section 41-29-139, or the laws
of the United States or of another state relating to narcotic drugs, stimulant
or depressant substances, other controlled substances or marihuana is found to
be guilty of a violation of subsection (c) or (d) of Section 41-29-139, after
trial or upon a plea of guilty, the court may, without entering a judgment of
guilty and with the consent of such person, defer further proceedings and place
him on probation upon such reasonable conditions as it may require and for such
period, not to exceed three (3) years, as the court may prescribe. Upon
violation of a condition of the probation, the court may enter an adjudication
of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss
the proceedings against such person and discharge him from probation before the
expiration of the maximum period prescribed for such person's probation. If
during the period of his probation such person does not violate any of the
conditions of the probation, then upon expiration of such period the court
shall discharge such person * * *, dismiss the proceedings against him
or her and expunge his or her record of all recordation relating to his
arrest, indictment, trial, finding of guilt, and dismissal and discharge
pursuant to this section. Discharge and dismissal under this subsection
shall be without court adjudication of guilt, but a nonpublic record thereof
shall be retained by the bureau solely for the purpose of use by the courts in
determining whether or not, in subsequent proceedings, such person qualifies
under this subsection. Such discharge or dismissal shall not be deemed a conviction
for purposes of disqualifications or disabilities imposed by law upon
conviction of a crime, including the penalties prescribed under this article
for second or subsequent conviction, or for any other purpose. Discharge and
dismissal under this subsection may occur only once with respect to any person;
and
(2) Upon the dismissal
of a person and discharge of proceedings against him under paragraph (1) of
this subsection, * * * the court * * * shall expunge from all
official records, other than the nonpublic records to be retained by the bureau
under paragraph (1) of this subsection, all recordation relating to his arrest,
indictment, trial, finding of guilt, and dismissal and discharge pursuant to
this section. * * * The effect of the order shall be to restore the person,
in the contemplation of the law, to the status he occupied before such arrest
or indictment. No person as to whom such an 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, indictment or trial in response to any inquiry made of
him for any purpose. 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.
(e) Every person who has been or may hereafter be convicted of a felony offense under Section 41-29-139 and sentenced under Section 41-29-150(c) shall be under the jurisdiction of the Mississippi Department of Corrections.
(f) It shall be unlawful for any person confined under the provisions of subsection (b) or (c) of this section to escape or attempt to escape from said institution, and, upon conviction, said person shall be guilty of a felony and shall be imprisoned for a term not to exceed two (2) years.
(g) It is the intent and purpose of the Legislature to promote the rehabilitation of persons convicted of offenses under the Uniform Controlled Substances Law.
SECTION 8. Section 9-11-15, Mississippi Code of 1972, is amended as follows:
9-11-15. (1) Justice court judges shall hold regular terms of their courts, at such times as they may appoint, not exceeding two (2) and not less than one (1) in every month, at the appropriate justice court courtroom established by the board of supervisors; and they may continue to hold their courts from day to day so long as business may require; and all process shall be returnable, and all trials shall take place at such regular terms, except where it is otherwise provided; but where the defendant is a nonresident or transient person, and it shall be shown by the oath of either party that a delay of the trial until the regular term will be of material injury to him, it shall be lawful for the judge to have the parties brought before him at any reasonable time and hear the evidence and give judgment or where the defendant is a nonresident or transient person and the judge and all parties agree, it shall be lawful for the judge to have the parties brought before him on the day a citation is made and hear the evidence and give judgment. Such court shall be a court of record, with all the power incident to a court of record, including power to fine in the amount of fine and length of imprisonment as is authorized for a municipal court in Section 21-23-7(11) for contempt of court.
(2) (a) In counties with a population of less than one hundred fifty thousand (150,000), each justice court shall designate at least one-half (1/2) day each month as a traffic court day, sufficient to handle the traffic violations docket of that court, and shall notify all appropriate law enforcement agencies of the date or dates. On the day or days so designated, the justice court shall give priority to all cases involving traffic violations.
(b) In counties with a population of one hundred fifty thousand (150,000) or more, each justice court shall designate at least one (1) day each month as a traffic court day, sufficient to handle the traffic violations of that court, and shall notify all appropriate law enforcement agencies of the date or dates. On the day or days so designated, the justice court shall give priority to all cases involving traffic violations. The one (1) day may be one (1) whole day or it may be divided into half days as long as one-half (1/2) day is held in the morning and one-half (1/2) day is held in the afternoon, in the discretion of the court.
(3) The justice court may, in its discretion, upon prior notice to the county prosecutor 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, order the record of conviction of a person of any or all misdemeanors in that court expunged, and upon so doing, such person thereafter legally stands as though he or she had never been convicted of the 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.
(4) Notwithstanding the provisions of subsection (3) of this section, a person who was convicted in justice 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.
SECTION 9. Section 21-23-7, Mississippi Code of 1972, is amended as follows:
21-23-7. (1) The municipal
judge shall hold court in a public building designated by the governing authorities
of the municipality, or may hold court in an adult detention center as provided
under this subsection, 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 may hold court outside the boundaries of the municipality but not
more than within a one-mile radius of the municipality for any purpose; however,
a municipal judge may hold court outside the boundaries of the municipality more
than within a one-mile radius of the municipality when accepting a plea of a defendant
at an adult detention center within the county. 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 Chapter 21,
Title 93, * * *
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 Chapter 21,
Title 93, * * *
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, there was no disposition of such case or the person was found not guilty at trial.
(14) For violations of municipal ordinances related to real property, the municipal judge shall have the power to order a defendant to remedy violations within a reasonable time period as set by the judge, and at the discretion of the judge, the judge may simultaneously authorize the municipality, at its request, the option to remedy the violation itself, through the use of its own employees or its contractors, without further notice should the defendant fail to fully do so within the time period set by the judge. Subsequent to the municipality remedying the violation, the municipality may petition the court to assess documented cleanup costs to the defendant, and, if, following a hearing on such petition, the judge determines (a) the violations were not remedied by the defendant within the time required by the court, (b) that the municipality remedied the violation itself after such time period expired and (c) that the costs incurred by the municipality were reasonable, the court may assess the costs to the defendant as a judgement, which may be enrolled in the office of the circuit clerk.
SECTION 10. This act shall take effect and be in force from and after July 1, 2022.
