How Do I Remove a Dismissed Case From My Record in North Carolina?

shutterstock_59368612.jpg

A big question we often get from clients after getting their case is dismissed is “how will it affect my record?” Will a background check reveal that I was arrested? Will the charges show up when I go to rent property? The short answer is usually yes, the arrest and charges would still appear unless you get an expungement. 

Expungement of Dismissed Cases in NC

Expungement is a way to remove convictions or dismissed cases from your record so that future background checks won’t display any arrests or charges. For North Carolina residents, the possibility of pursuing expungement has recently changed in a good way. North Carolina has recently made it much easier to get dismissed cases removed from your record through the expunction process.

Governor Roy Cooper signed a new expungement law, which took effect on December 1, 2017. This new law cuts down the wait time for non-violent misdemeanor and felony convictions. Misdemeanor conviction wait times have been reduced from 15 years to 5. Felony convictions from 15 years to 10. The new law has also lifted the limit of one expungement when the defendant’s charges were dismissed or they were acquitted. Now if the defendants whose charges are dismissed or who were found “not guilty” can apply for as many expungements as they want (assuming no felony convictions or active criminal cases).

Petitioning for an expungement can seem easy but it has a number of steps and involves a good amount of specific clerical work. The petition must be filed in the county where the charges took place. Also, the expungement process is a lengthy one so properly filling out and filing the paperwork is very important as a small mistake could mean your petition gets denied and you have to start again from scratch (having lost tons of time).

If you have a dismissed case or a not guilty verdict on your record contact The Law Offices of Wiley Nickel, PLLC for a free North Carolina expungement consultation.  Our office is located in Cary, NC and we handle expungements throughout North Carolina. Our phone number is 919-585-1486.  Contact a North Carolina Expungement Lawyer today to discuss your case.

Comment

Wiley Nickel

Wiley Nickel lives and works in Cary, North Carolina. In 1998, he graduated from Tulane University with a major in Political Science and a minor in History. After college Wiley went to work for Al Gore and travelled with the Vice President as part of his national advance staff. Following the Gore campaign he earned his law degree from the Pepperdine University School of Law in 2005. While in law school Wiley worked as a law clerk in the Ventura County District Attorney’s Office where he gained valuable criminal trial experience before taking and passing the California bar exam. His first job out of law school was for the Merced County District Attorney’s Office where he worked as a Deputy District Attorney with a focus on prosecuting DWI offenders. Wiley later joined the Law Offices of Joseph Uremovic where he focused on civil litigation and family law. When the opportunity came to join the Obama campaign in 2008 Wiley jumped at the chance. He spent three years travelling with President Obama as a member of his national advance team. In 2011 Wiley left his work for the White House to return to the practice of law. Wiley devotes the majority of his practice to the areas of criminal law, family law, traffic tickets and DMV issues. The Law Offices of Wiley Nickel was started with the goal of providing the best representation possible for all of his clients. Experienced, Compassionate, Aggressive Criminal Defense While defense attorney Wiley Nickel works as the primary attorney for all of his cases, he does have an associate attorney, a team of investigators, forensic consultants, and support staff to call on to help achieve the best possible result in every case. He limits his case load so that he can focus on providing the best possible legal defense to all of his clients. Every case is a top priority and the goal is to have your case dismissed with a focus on being able to expunge your charges at the end of the process. When he is not working, Wiley is an avid family man, distance runner and golfer. He loves North Carolina college sports and is hoping this is the year for Cam Newton and the Carolina Panthers. Wiley is licensed to practice law in North Carolina and California.

What is a Motion for Appropriate Relief?

A Motion for Appropriate Relief (also called a MAR Motion) is a motion that can be filed on behalf of the defendant after the Judge or Jury's Verdict.  The motion re-opens the case (much like an appeal) but the case stays at the District or Superior Court trial level.  The basis for the motion depends on when it is filed.  MAR's filed within 10 days of the verdict can assert more errors than MAR's made beyond ten days.  A MAR Motion is often a better idea than an appeal and in some cases can be filed even if the Defendant has appealed the verdict. Errors that can be asserted within the 10 day window include:

  • Any error of law
  • A verdict that is contrary to the weight of the evidence
  • The defendant did not receive a fair or impartial trial
  • The sentence was not supported by the evidence presented


Outside the 10 day window there are nine (9) errors that can be the basis for a MAR Motion.

  • Acts that Do Not constitute a Violation of Law
    • Examples include when the statute proscribing the crime for which the defendant was convicted was repealed before he or she committed the offense at issue or  when the defendant was convicted of sale of a controlled substance in violation of G.S. 90-95(a)(1), but the substance that the defendant sold was not a controlled substance.
  • Trial Court Lacked Jurisdiction
    • Examples include an assertion that an indictment was fatally defective or an allegation that an unreasonable period of time elapsed between the entry of a prayer for judgment continued (PJC) and the entry of judgment.
  • Unconstitutional Conviction
    •  Examples include an ineffective assistance of counsel claim or a claim asserting that a guilty plea was not knowingly, voluntarily, and intelligently entered.
  • Unconstitutional Statute
    • This includes situations where the defendant was convicted or sentenced under a statute that violated the United States or North Carolina constitutions. An example would be asserting that a habitual felon statute violates the double jeopardy clause.
  • Constitutionally Protected Conduct
    • This could include situations where the conduct leading to a disorderly conduct conviction was protected by the Free Speech Clause of the First Amendment or where the defendant was convicted of a crime against nature for private consensual homosexual sex between adults and alleges a violation of due process rights.
  • Retroactive Change in Law
    • In some situations a defendant can assert a claim that there has been a significant change in law (either substantive or procedural) applied in the proceedings leading to the defendant’s conviction or sentence, and retroactive application of the changed legal standard is required. The change in law could be the result of an appellate case or from new legislation from the North Carolina General Assembly.
  • Sentence was Unauthorized, Illegal or Invalid
    • An example of an error of law with regard to the sentencing would be when the trial judge sentences the defendant under the Fair Sentencing Act but the applicable law is in the Structured Sentencing Act.
  • Sentence Fully Served
    • This could apply where the defendant is in jail and is entitled to release because the sentence has been fully served.  It could also apply when the Department of Correction (DOC) has not complied with a judge’s ruling ordering credit for time served - and if such credit was given then the defendant would be entitled to be released from jail.
  • Claim of Newly Discovered Evidence
    •  This is a more complex area of the law but could include the discovery of new evidence that was unknown or unavailable at the time of trial and could not with due diligence have been discovered or made available at trial, including recanted testimony.


If you think that you have been unfairly convicted, and would like to see if it’s possible to re-open your North Carolina District or Superior Court case by using a Motion for Appropriate Relief (MAR) please contact the Law Offices of Wiley Nickel, PLLC.  We serve Wake County, Chatham County, Durham County & Orange County and offer free initial consultations.

Comment

Wiley Nickel

Wiley Nickel lives and works in Cary, North Carolina. In 1998, he graduated from Tulane University with a major in Political Science and a minor in History. After college Wiley went to work for Al Gore and travelled with the Vice President as part of his national advance staff. Following the Gore campaign he earned his law degree from the Pepperdine University School of Law in 2005. While in law school Wiley worked as a law clerk in the Ventura County District Attorney’s Office where he gained valuable criminal trial experience before taking and passing the California bar exam. His first job out of law school was for the Merced County District Attorney’s Office where he worked as a Deputy District Attorney with a focus on prosecuting DWI offenders. Wiley later joined the Law Offices of Joseph Uremovic where he focused on civil litigation and family law. When the opportunity came to join the Obama campaign in 2008 Wiley jumped at the chance. He spent three years travelling with President Obama as a member of his national advance team. In 2011 Wiley left his work for the White House to return to the practice of law. Wiley devotes the majority of his practice to the areas of criminal law, family law, traffic tickets and DMV issues. The Law Offices of Wiley Nickel was started with the goal of providing the best representation possible for all of his clients. Experienced, Compassionate, Aggressive Criminal Defense While defense attorney Wiley Nickel works as the primary attorney for all of his cases, he does have an associate attorney, a team of investigators, forensic consultants, and support staff to call on to help achieve the best possible result in every case. He limits his case load so that he can focus on providing the best possible legal defense to all of his clients. Every case is a top priority and the goal is to have your case dismissed with a focus on being able to expunge your charges at the end of the process. When he is not working, Wiley is an avid family man, distance runner and golfer. He loves North Carolina college sports and is hoping this is the year for Cam Newton and the Carolina Panthers. Wiley is licensed to practice law in North Carolina and California.