Defense attorney set my misdemeanor theft case for a TBC when I recommended community service and restitution upfront, then a dismissal. He did this, because he said he has to wait 2 years for an expunction if he accepts my plea offer. Whereas, if we schedule a TBC, and I don�t call any witnesses, he can ask for a directed verdict, and the judge will grant it, so the case then can be expunged immediately (instead of waiting 2 years). Is this the right procedural mechanism? Can�t I just agree to the immediate expunction order, after the dismissal is signed? I would be dismissing "with prejudice" because it's not "in the interest of justice" but rather because "defendant paid restitution" and "completed community service". I�m trying to avoid wasting the judge�s time by setting this for a TBC just so the defendant can get an early expunction. Please advise!

Jackie Borcherding

Sounds like the defense attorney wants the defendant acquitted so can use CCP 55.01(a)(1)(A)


If it is a deferred adjudication then look at Government Code 411.081 Non-disclosure instead of expunction.

I got expunction and non-disclosure confused in a recent thread.

[This message was edited by AlexLayman on 05-30-08 at .]

Technically, he's correct. An acquittal will get you an immediate expunction, whereas a dismissal means the SOL has to run. (Of course, that's two years from the date of the offense, not the date of the plea like it sounds like your defense attorney said.)

You can agree to not oppose an immediate expunction if you want to, but that doesn't guarantee that he'll get it. Each respondent has the right to reply individually, so even if the DA's office agrees, DPS, the police department, or any of the other named agencies can still choose to oppose it. So it really just depends on your county. In some places, the DA is the only one that ever speaks up on expunctions, but in others the other respondents are more active.

If you do it in this case, be prepared to do it in all similar cases once word spreads about the deal you cut.

I agree with Andrea, to the extent that any order which is not opposed should get the parties where they want to go...but, that being said, the requirements of Chapter 55 are mandatory...you cannot "agree" to an expunction that does not meet the requirements. If you agree not to oppose something to which the movant is not entitled, there is no guarantee that the judge will sign the order. (If the judge is paying attention, he should refuse the order.) And, as Andrea points out, even if the judge signs it, DPS can (and likely will) appeal.

[This message was edited by John C. Grace on 06-02-08 at .]

quote:

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Originally posted by John C. Grace:
but, that being said, the requirements of Chapter 59 are mandatory...you cannot "agree" to an expunction that does not meet the requirements. If you agree not to oppose something to which the movant is not entitled, there is no guarantee that the judge will sign the order. (If the judge is paying attention, he should refuse the order.)

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What a refreshing concept. I have some judges that make a point of telling the defendant how they'd be more than happy to sign the order if the DA weren't objecting. The defense attorneys like to get in on the act too. I try pointing out that it's the law that says they can't have it, not just me, but that doesn't seem to get through.

Well crud, Andrea. You responded to my post before I could correct the reference to Ch. 55...instead of 59. (When I get those two chapters confused I end up taking someone's car instead of erasing their criminal history.)

Somehow I managed to figure out what you were talking about anyway. I'm just that good.

Want me to edit the quote?

Don't worry about it. Making mistakes in public keeps me humble.