by Joseph Nicholson

Created on: January 05, 2009

The process of having a felony "expunged" is actually called "dismissal" is the court system. In essence it means that a plea or finding of guilt is retro-actively overlooked and the case is dismissed. It's important to understand that a dismissal only relates to a conviction - the arrest will remain on the criminal record. If there was no conviction, or to remove an arrest from the record, a Petition for Factual Innocence must be filed, which is a separate and much more difficult process from getting a felony expunged. Therefore, before dismissal can occur, an individual should be absolutely certain about what appears on their criminal record.

Not all criminal convictions can be expunged or dismissed. In the case of a felony conviction, California law only permits dismissal when the defendant did not serve a state prison sentence and successfully completed the terms of probation. In addition, the defendant must have paid all the fines, restitution, and reimbursements ordered by the court, must not currently be charged with another offense, and must not be currently serving another sentence or on probation for another offense. If there was no probation, then at least one year must have elapsed since the date of conviction.

Some felonies cannot be dismissed in any circumstances. Rape (Penal Code Section 261(d)), Sodomy (286(c)), Lewd Act on a Child (286), Oral Copulation on a minor under 14 years of age (286a),Engagement in 3 or More Sexual Acts with a Minor Under 14 (288.5), and Sexual Penetration of a Minor Under 14 by a Foreign Object (289(j) cannot be dismissed or expunged from a criminal record.

To move for a dismissal of a qualifying felony conviction a PC1203.4 petition can be filed with the court. This form includes the option described under Penal Code 1204.4a, which is to have a felony conviction reduced to a misdemeanor. This can be helpful if a convicted felon was sentenced and served time in jail because the qualifications for having a midemeanor expunged are much less restrictive.

While some felonies, particularly those involving violence, do not qualify for dismissal under any circumstances, some do not require the formal dismissal process at all to be removed from a criminal record. All convictions in California for possession of marijuana for personal use after January 1, 1976 are automatically erased after two years. However, this exemption does not apply to convictions for cultivation, sale, or transportation.

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