06 December 2009


A note from a loyal fan (hey, if you're going to be anonymous I get to assume things):
Horrendously off-topic comment, but I'm evidently not smart enough to find an e-mail address for you anywhere on this blog, was hesitant to track down your work e-mail, and couldn't leave this comment on the post that prompted it because that post was the video you did on expungement in Virginia.

Eager readers (and viewers!) will remember that the gist of your presentation on expungement was: if your case was ended by acquittal, by nolle pross, or by dismissal (recognizing that starting a few years ago, 'dismissal' and 'nolle prosequi' are not synonyms) then you were entitled under § 19.2-302.2(A) to expungement. If you pled guilty, nolo contendere, or if the court disposed of your case with any finding that indicated there was sufficient evidence to find guilt -- even if it did not ultimately enter a conviction of guilt -- then you were out of luck, expungement-wise.

This summer, the Court of Appeals handed down a couple of consolidated cases out of Bristol -- Comm. v. Compton and Brown v. Comm. -- that appear to add another rule to the list.

Brown was charged with misdemeanor assault and battery, and the Salem General District Court took the charge under advisement for 12 months pending his successful completion of ASAP. After Brown completed the program, the court ordered the charge dismissed. The Commonwealth opposed Brown's subsequent expungement request, reasoning that requiring an alcohol program was the condition for the dismissal and this means he was not innocent -- notwithstanding the absence of any specific finding or plea to the contrary.

Compton was charged with felony abuse and neglect of a child, and the Bristol JDR court deferred any finding contingent upon Compton's submitting a written parenting plan and performing community service. Subsequent to her successful completion of these conditions, the court dismissed the charge, again without making any finding of guilt or accepting any plea from Compton.

In both cases, the Court of Appeals held that expungement was available.

This isn't any radical departure from the general rules your video discussed, but given the paucity of caselaw on the subject, I thought the addition of another set of specific circumstances that support expungement would be of interest.
Thanks. I have added an easier to find way to click and send an email to me. Hopefully this will make it easier next time.

Brown v. Commonwealth is a Virginia Supreme Court case. The note I filed away for myself after reading this case follows:
Brown v. Commonwealth, JUN09, VaSC No. 081417 & 081588: (1) The fact that a defendant obeyed a court condition in order to have a charge dismissed does not establish that the defendant was guilty. (2) If a case is taken under advisement for a period of time without entry of a plea or a finding of guilt or facts sufficient and then dismissed after a period of time the defendant can have the charge expunged. (3) A person who pled guilty cannot have a charge expunged even if the case was dismissed per a first offender statute. (4) A person who pled nolo contendere cannot have a charge expunged because he agreed to be treated as though guilty. (5) A defendant who pled not guilty and had a judge find facts sufficient cannot have his charge expunged. (6) Any charge dismissed pursuant to a first offender statute cannot be expunged.
Parts (1) & (2) are pretty much what Anonymous pointed out. I agree that this doesn't change the law. It just lays out a road map for those who want to leave people the possibility of expungement.

1 comment:

Anonymous said...

When a defendant files a petition for expungement, is it better if their charges were noll prossed or if the base was dismissed (with a not guilty plea and without a finding of facts sufficient to convict)?