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Assisting Clients with Expungement of Criminal Records Presented by Robert D. Sicoli

Assisting Clients with Expungement of Criminal Records Presented by Robert D. Sicoli. EXPUNGEMENT OVERVIEW. 1. No criminal charges filed or charges dismissed prior to a determination of probable cause. -Minn. Stat. § 299C.11. EXPUNGEMENT OVERVIEW.

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Assisting Clients with Expungement of Criminal Records Presented by Robert D. Sicoli

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  1. Assisting Clients with Expungement of Criminal Records Presented by Robert D. Sicoli

  2. EXPUNGEMENTOVERVIEW 1. No criminal charges filed or charges dismissed prior to a determination of probable cause. -Minn. Stat. § 299C.11

  3. EXPUNGEMENTOVERVIEW 1. No criminal charges filed or charges dismissed prior to a determination of probable cause. -Minn. Stat. § 299C.11 Enumerated grounds for expungement contained in state statute. -Minnesota Statutes Chapter 609A

  4. EXPUNGEMENTOVERVIEW 1. No criminal charges filed or charges dismissed prior to a determination of probable cause. -Minn. Stat. § 299C.11 Enumerated grounds for expungement contained in state statute. -Minnesota Statutes Chapter 609A Inherent Authority Expungements. -Cases involving convictions, but not enumerated grounds for expungement under Chapter 609A

  5. MINN. STAT. § 299C.11 EXPUNGEMENTS When Available. -All charges dismissed prior to finding of probable cause, or when charges never filed, and -Petitioner has no felony or gross misdemeanor convictions within 10 years of the date the case dismissed or not charged. -Completion of a diversion program does not qualify for 299C.11 expungement.

  6. MINN. STAT. § 299C.11 EXPUNGEMENTS Scope of 299C.11 expungements. -Allows for return of fingerprints and booking photos.

  7. MINN. STAT. § 299C.11 EXPUNGEMENTS Procedure for 299C.11 expungements. -Mail letters to all of the agencies holding records-No court action required.

  8. MINN. STAT. CHAPTER 609A EXPUNGEMENTS Distinctions between Chapter 609A expungements and 299C.11 expungements. -609A expungements-sealing of records only, no return of records.

  9. MINN. STAT. CHAPTER 609A EXPUNGEMENTS Distinctions between Chapter 609A expungements and 299C.11 expungements. -609A expungements-sealing of records only, no return of records. -Court proceeding required in 609A expungements.

  10. MINN. STAT. CHAPTER 609A EXPUNGEMENTS Distinctions between Chapter 609A expungements and 299C.11 expungements. -609A expungements-sealing of records only, no return of records. -Court proceeding required in 609A expungements. -609A expungement appropriate procedure for pre-trial diversion programs. See, State of Minnesota, City of Maple Grover v. Horner, 617 N.W. 2d 452, 455 (Minn. Ct. App. 2000).

  11. Grounds for 609A expungement are contained in Minn. Stat. § 609A.02. -Drug cases that result in a dismissal and discharge pursuant to 152.18. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  12. Grounds for 609A expungement are contained in Minn. Stat. § 609A.02. -Drug cases that result in a dismissal and discharge pursuant to 152.18. -Juveniles prosecuted as adults, after they have been discharged from their sentence. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  13. Grounds for 609A expungement are contained in Minn. Stat. § 609A.02. -Drug cases that result in a dismissal and discharge pursuant to 152.18. -Juveniles prosecuted as adults, after they have been discharged from their sentence. -Criminal proceedings decided in favor of the petitioner, which includes dismissals after successful completion of a diversion program as long as there are no admissions on the record. State of Minnesota, City of Maple Grove v. Horner, 617 N.W. 2d 452, 454-455 (Minn. Ct. App. 2000). MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  14. Grounds for 609A expungement are contained in Minn. Stat. § 609A.02. -Drug cases that result in a dismissal and discharge pursuant to 152.18. -Juveniles prosecuted as adults, after they have been discharged from their sentence. -Criminal proceedings decided in favor of the petitioner, which includes dismissals after successful completion of a diversion program as long as there are no admissions on the record. State of Minnesota, City of Maple Grove v. Horner, 617 N.W. 2d 452, 454-455 (Minn. Ct. App. 2000). -An acquittal by reason of mental illness is not a proceeding resolved in the Petitioner’s favor. State v. Ambaye, 616 N.W. 2d 256 (Minn. 2000). MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  15. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. -Contents of the Petition should track the language contained in §609A.03, subd. 2. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  16. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. -Contents of the Petition should track the language contained in §609A.03, subd. 2. -The Petition and a Proposed Order should be served on the prosecutor’s office, all of the governmental agencies affected by the order and the attorneys representing these governmental agencies. § 609A. 03, subd. 3 (a). MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  17. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. -Contents of the Petition should track the language contained in §609A.03, subd. 2. -The Petition and a Proposed Order should be served on the prosecutor’s office, all of the governmental agencies affected by the order and the attorneys representing these governmental agencies. § 609A. 03, subd. 3 (a). -The hearing date in court must be scheduled at least 60 days after the Petition is filed. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  18. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. -The Petitioner must sign the Petition before a notary, and the Petition and Proposed Order must be filed with the Court Administrator’s Office with an Affidavit of Service. There is a filing fee for most cases, unless the Petitioner is indigent, or if the matter sought to be expunged was resolved in Petitioner’s favor. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  19. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. -The Petitioner must sign the Petition before a notary, and the Petition and Proposed Order must be filed with the Court Administrator’s Office with an Affidavit of Service. There is a filing fee for most cases, unless the Petitioner is indigent, or if the matter sought to be expunged was resolved in Petitioner’s favor. - Unless the matter was decided in Petitioner’s favor, the Petitioner will have to carry the burden of showing by clear and convincing evidence that the benefit to Petitioner outweighs the disadvantages to the public and to public safety of sealing the record and burdening the court and public authorities to issue, enforce and monitor an expungement order. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  20. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. -An expunged record of a conviction may be opened for purposes a background study under section 245C.08, unless the court order for expungement is directed specifically to the commissioner of human services. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  21. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. -An expunged record of a conviction may be opened for purposes a background study under section 245C.08, unless the court order for expungement is directed specifically to the commissioner of human services. -If the court signs the order, it is stayed for 60 days, to allow for an appeal by the effected agencies. The Court Administrator will mail the order to all of the interested agencies. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  22. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. Relief is limited to certain records. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  23. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. Relief is limited to certain records. -DNA samples cannot be sealed, returned or destroyed. § 609A.03, subd. 7(a). MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  24. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. Relief is limited to certain records. -DNA samples cannot be sealed, returned or destroyed. § 609A.03, subd. 7(a). -Expungement cannot be granted for convictions that require registration. § 609A.02, subd. 4. MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  25. Procedure for Chapter 609A. Expungements-Minn. Stat. § 609A. 03. Relief is limited to certain records. -DNA samples cannot be sealed, returned or destroyed. § 609A.03, subd. 7(a). -Expungement cannot be granted for convictions that require registration. § 609A.02, subd. 4. -Even sealed records can be re-opened for criminal investigations and for evaluating applicants for employment with a criminal justice agency upon an ex parte order by the court. § 609A.03, subd. 7(b). MINN. STAT. CHAPTER 609A EXPUNGEMENTS

  26. INHERENT AUTHORITY EXPUNGEMENTS When available - Available in all other cases involving criminal convictions, not listed as enumerated grounds for a 609A expungement.

  27. Inherent Authority Expungement Burden of Proof -The petitioner must prove by clear and convincing evidence that the benefit to petitioner outweighs the disadvantages to the public and to public safety of sealing the record.

  28. Inherent Authority Expungement Main Issue -Can the court order an expungement of executive branch agency records, such as the BCA and the county attorney’s office?

  29. Inherent Authority Expungement General Rule Prior to 2008 -Most courts did not grant expungement of executive branch agency records relying on State v. Schultz, 676 N.W.2d 337 (Minn.Ct.App. 2004).

  30. Inherent Authority Expungement2008 Cases State v. S.L.H., 755 N.W. 2d 271 (Minn. 2008) Facts and procedural history -S.L.H. sought expungement of all records related to her 1992 fifth degree drug possession conviction, including executive branch agency records.

  31. Inherent Authority Expungement2008 Cases State v. S.L.H., 755 N.W. 2d 271 (Minn. 2008) Facts and procedural history -S.L.H. sought expungement of all records related to her 1992 fifth degree drug possession conviction, including executive branch agency records. -The District Court granted S.L.H.’s petition as to her criminal records held by the judicial branch, but denied her petition for expungement of her criminal records held by executive branch agencies.

  32. Inherent Authority Expungement2008 Cases State v. S.L.H., 755 N.W. 2d 271 (Minn. 2008) Facts and procedural history -S.L.H. sought expungement of all records related to her 1992 fifth degree drug possession conviction, including executive branch agency records. -The District Court granted S.L.H.’s petition as to her criminal records held by the judicial branch, but denied her petition for expungement of her criminal records held by executive branch agencies. -The Court of Appeals affirmed and the Supreme Court accepted Review.

  33. Inherent Authority Expungement 2008 Cases State v. S.L.H., 755 N.W. 2d 271 (Minn. 2008) Minnesota Supreme Court Holding -On the facts of this case, district court did not err in refusing to grant S.L.H.’s request, because S.L.H failed to demonstrate that expungement of her criminal records held by executive branch agencies is necessary to the performance of a core judicial function. 755 N.W. 2d at 280.

  34. Inherent Authority Expungement 2008 Cases State v. S.L.H., 755 N.W. 2d 271 (Minn. 2008) Minnesota Supreme Court Holding -On the facts of this case, district court did not err in refusing to grant S.L.H.’s request, because S.L.H failed to demonstrate that expungement of her criminal records held by executive branch agencies is necessary to the performance of a core judicial function. 755 N.W. 2d at 280. -However, in a footnote, the Supreme Court declined to resolve conflicting rules in Court of Appeals decisions, stating that a broad rule is not necessary for the resolution of the case 755 N.W.2d at 274 fn 3.

  35. Inherent Authority Expungement 2008 Cases State v. S.L.H., 755 N.W. 2d 271 (Minn. 2008) Minnesota Supreme Court Holding -On the facts of this case, district court did not err in refusing to grant S.L.H.’s request, because S.L.H failed to demonstrate that expungement of her criminal records held by executive branch agencies is necessary to the performance of a core judicial function. 755 N.W. 2d at 280. -However, in a footnote, the Supreme Court declined to resolve conflicting rules in Court of Appeals decisions, stating that a broad rule is not necessary for the resolution of the case 755 N.W.2d at 274 fn 3. -Leaves open the argument adopted in State v. P.A.D., 436 N.W. 2d 808, 810 (Minn.Ct.App.1989) that expungement of BCA records is allowed if expungement is necessary to give a meaningful remedy to the petitioner.

  36. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Court of Appeals Holding -The District Court erred in concluding that it did not have inherent authority to order expungement of executive branch agency records which were generated by the court but held by the agency.

  37. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Court of Appeals Holding -The District Court erred in concluding that it did not have inherent authority to order expungement of executive branch agency records which were generated by the court but held by the agency. -The Appeals Court stated that a court is not precluded from sealing records controlled by other branches of government when doing so is necessary or conducive to a meaningful remedy for the petitioner.

  38. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Procedural History of V.A.J. -Case decided by Court of Appeals on February 12, 2008.

  39. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Procedural History of V.A.J. -Case decided by Court of Appeals on February 12, 2008. -Review by the Supreme Court was granted and stayed by the Supreme Court on April 15, 2008 because the court had previously granted review in S.L.H.

  40. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Procedural History of V.A.J. -Case decided by Court of Appeals on February 12, 2008. -Review by the Supreme Court was granted and stayed by the Supreme Court on April 15, 2008 because the court had previously granted review in S.L.H. -After S.L.H. was decided on September 4, 2008, the Supreme Court denied its previous grant of review in V.A.J., vacated the stay and dismissed the appeal, letting the Court of Appeals decision stand.

  41. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Way to Reconcile -Broad discretion to District Court.

  42. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Way to Reconcile -Broad discretion to District Court. -Lipstick on a pig.

  43. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Way to Reconcile -Broad discretion to District Court. -Lipstick on a pig. -Unlikely District Courts grant expungement of BCA records in inherent authority expungements.

  44. Inherent Authority Expungement 2008 Cases State v. V.A.J., 744 N.W. 2d 674 (Minn.Ct.App. 2008) Way to Reconcile -Broad discretion to District Court. -Lipstick on a pig. -Unlikely District Courts grant expungement of BCA records in inherent authority expungements. -Need legislation.

  45. See State v. N.G.K – overturns State v. V.A.J.

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