CERTAIN FELONIES AND MISDEMEANORS MAY NOW BE RESTRICTED FROM YOUR CRIMINAL RECORD

On January 1, 2021, certain felonies and misdemeanors for which a person was convicted or pled guilty, became eligible for record restriction under O.C.G.A. § 35-3-37.  Prior to the enactment of this statute, formerly known as Senate Bill 288, felonies and misdemeanors for which a person was convicted or pled guilty were excluded from being restricted (formerly known as expungement) from your criminal history report (criminal record).  However, with the passage of O.C.G.A. § 35-3-37, individuals with certain felony and misdemeanor convictions on their record have the potential to clear up and restrict their criminal history report (criminal record).

FELONIES: AN OVERVIEW OF FELONY RESTRICTION

Perhaps the biggest win for individuals hoping to restrict their criminal history report (criminal record) is the new ability to petition the superior court to restrict certain felonies.  Although the statute requires you to first receive a Pardon from the Georgia Board of Pardons and Paroles, this legislation presents a true path to record restrictions for felonies that have long kept people from employment opportunities.

O.C.G.A. § 35-3-37(j) lays out the process for petitioning the superior court to restrict certain felonies from your criminal history report (criminal record):

“When an individual was convicted in this state of an offense for which that individual has been granted a pardon from the State Board of Pardons and Paroles as provided in the Constitution and Code Section 42-9-42, provided that the offense was not a serious violent felony as such term is defined in Code Section 17-10-6.1 or a sexual offense as such term is defined in Code Section 17-10-6.2, and provided, further, that such individual has not been convicted of any crime in any jurisdiction, excluding any conviction for a nonserious traffic offense, since the pardon was granted, and provided, further, that he or she has no pending charged offenses, he or she may petition the court in which the conviction occurred to restrict access to criminal history record information. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if it determines that the harm otherwise resulting to the individual clearly outweighs the public’s interest in the criminal history record information being publicly available.” O.C.G.A. § 35-3-37(j)(7).

MISDEMEANORS: AN OVERVIEW OF MISDEMEANOR RESTRICTION

Although certain felonies may now be restricted from a person’s criminal history report (criminal record), certain misdemeanors may also be restricted, provided a person meets the requirements of O.C.G.A. § 35-3-37(j).

O.C.G.A. § 35-3-37(j) lays out the process for petitioning the superior court to restrict certain misdemeanors from your criminal history report (criminal record):

“When an individual was convicted in this state of a misdemeanor or a series of misdemeanors arising from a single incident, provided that such conviction was not for any offense listed in subparagraph (B) of this paragraph, and such individual has completed the terms of his or her sentence and has not been convicted of any crime in any jurisdiction for at least four years prior to filing a petition under this subparagraph, excluding any conviction for a nonserious traffic offense, and provided, further, that he or she has no pending charged offenses, he or she may petition the court in which the conviction occurred to restrict access to criminal history record information. Such court shall maintain jurisdiction over the case for this limited purpose and duration. Such petition shall be served on the prosecuting attorney. If a hearing is requested, such hearing shall be held within 90 days of the filing of the petition. The court shall hear evidence and shall grant an order restricting such criminal history record information if it determines that the harm otherwise resulting to the individual clearly outweighs the public’s interest in the criminal history record information being publicly available.”  O.C.G.A. § 35-3-37(j)(4)(A).

MISDEMEANORS: CERTAIN MISDEMEANORS MAY NOT BE RESTRICTED

Although restriction is now possible for certain misdemeanors, the legislature has prevented record restriction for certain misdemeanors as follows:

“(B) Record restriction under this subsection shall not be appropriate if the individual was convicted of:

(i) Family violence simple assault in violation of subsection (d) of Code Section 16-5-20, unless the individual was a youthful offender;

(ii) Family violence simple battery in violation of subsection (f) of Code Section 16-5-23, unless the individual was a youthful offender;

(iii) Family violence battery in violation of subsection (f) of Code Section 16-5-23.1, unless the individual was a youthful offender;

(iv) Family violence stalking in violation of Code Section 16-5-90;

(v) Violating a family violence order in violation of Code Section 16-5-95;

(vi) Child molestation in violation of Code Section 16-6-4;

(vii) Enticing a child for indecent purposes in violation of Code Section 16-6-5;

(viii) Improper sexual contact by employee or agent and improper sexual contact by a foster parent in violation of Code Section 16-6-5.1;

(ix) Public indecency in violation of subsection (b) of Code Section 16-6-8;

(x) Keeping a place of prostitution in violation of Code Section 16-6-10;

(xi) Pimping in violation of Code Section 16-6-11;

(xii) Pandering by compulsion in violation of Code Section 16-6-12;

(xiii) Sexual battery in violation of Code Section 16-6-22.1;

(xiv) Obstructing or hindering persons making emergency telephone call in violation of Code Section 16-10-24.3;

(xv) Peeping Toms in violation of Code Section 16-11-61;

(xvi) Any offense related to minors generally in violation of Part 2 of Article 3 of Chapter 12 of Title 16;

(xvii) Theft in violation of Chapter 8 of Title 16; provided, however, that such prohibition shall not apply to a misdemeanor conviction of shoplifting or refund fraud in violation of Code Section 16-8-14 or 16-8-14.1, as applicable; or

(xviii) Any serious traffic offense in violation of Article 15 of Chapter 6 of Title 40.”  O.C.G.A. § 35-3-37(j)(4)(B)(i)-(xviii).

MISDEMEANORS: ABILITY TO PETITION MULTIPLE TIMES

Pursuant to the statute, even if an individual has their petition for restriction denied by the superior court, an individual still has the ability to petition the court at a later date, provided they meet certain requirements.  O.C.G.A. § 35-3-37(j)(4) states as follows:

“An individual shall be limited to filing a petition under this paragraph to a lifetime maximum of requesting record restriction on two convictions for a misdemeanor or a series of misdemeanors arising from a single incident. For the purposes of this subparagraph, the conviction of two or more offenses charged in separate counts of one or more accusations consolidated for trial shall be deemed to be one conviction. If a petition under this subsection has been denied, an individual may file a subsequent petition on the same conviction for a misdemeanor or series of misdemeanors arising from a single incident after the expiration of two years from the date of the final order from the previous petition.”  O.C.G.A. § 35-3-37(j)(4)(C).

SEALING RECORDS WITH COURT CLERK AFTER SUCCESSFUL PETITION

After you petition the court, and if your petition is successful, a person may then request the court to seal their record to prevent access by the public to the restricted case.

O.C.G.A. § 35-37(m) states as follows:

“(1) For criminal history record information maintained by the clerk of court, an individual who has a record restricted pursuant to this Code section may petition the court with original jurisdiction over the offenses in the county where the clerk of court is located for an order to seal all criminal history record information maintained by the clerk of court for such individual’s charged offense. Notice of such petition shall be sent to the clerk of court and the prosecuting attorney. A notice sent by registered or certified mail or statutory overnight delivery shall be sufficient notice.

(2) The court shall order all criminal history record information in the custody of the clerk of court, including within any index, to be restricted and unavailable to the public if the court finds by a preponderance of the evidence that:

(A) The criminal history record information has been restricted pursuant to this Code section; and

(B) The harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history record information being publicly available.

(3) Within 60 days of the court’s order, the clerk of court shall cause every document, physical or electronic, in its custody, possession, or control to be restricted.”  O.C.G.A. § 35-37(m)(1)-(3).

CONTACT US TODAY: 770-415-9848

If you have questions about restricting your criminal history report (criminal record), call us today at 770-415-9848 at The Sellers Law Firm, LLC: Where Clients Become Family.

You may also submit a case evaluation request on our website HERE.