House Bill 794

AN ACT TO AMEND SECTION 97-37-5, MISSISSIPPI CODE OF 1972, TO AUTHORIZE A COURT THAT GRANTS A CERTIFICATE OF REHABILITATION TO ALSO GRANT AN EXPUNGEMENT WITHIN THE CERTIFICATE OF REHABILITATION; TO BRING FORWARD SECTION 99-19-71, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THE REGULATIONS FOR EXPUNGEMENT, FOR PURPOSES OF AMENDMENT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-37-5, Mississippi Code of 1972, is amended as follows:

97-37-5. (1) It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

(2) Any person violating this section shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not less than one (1) year nor more than ten (10) years, or both.

(3) A person who has been convicted of a felony under the laws of this state, under the laws of another state, under federal law or in state military court may apply for a certificate of rehabilitation as provided in this section. If the person was convicted of a felony under the laws of this state, he or she may apply to the court in which he was convicted for a certificate of rehabilitation. If the person was convicted of a felony under the laws of another state, under federal law or in state military court, he or she may apply to the court in the person's county of residence for a certificate of rehabilitation. A person convicted of a felony under the laws of another state, under federal law or in state military court shall attach a certified copy of his or her judgment and a certified copy of his or her completion of sentence to the petition for a certificate of rehabilitation. The court may grant such certificate in its discretion upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his or her sentence and upon the finding of the court that he or she will not be likely to act in a manner dangerous to public safety. Upon granting a certificate of rehabilitation under this subsection, the court may also grant an expungement within the certificate of rehabilitation for any felony listed in Section 99-19-71. The expungement petition requirements in Section 99-19-71 shall not be applicable for purposes of granting an expungement under this subsection. No person may be granted more than one (1) expungement under the provisions of this subsection.

(4) (a) A person who is discharged from court-ordered mental health treatment may petition the court which entered the commitment order for an order stating that the person qualifies for relief from a firearms disability.

(b) In determining whether to grant relief, the court must hear and consider evidence about:

(i) The circumstances that led to imposition of the firearms disability under 18 USCS, Section 922(d)(4);

(ii) The person's mental history;

(iii) The person's criminal history; and

(iv) The person's reputation.

(i) That the person is no longer likely to act in a manner dangerous to public safety; and

(ii) Removing the person's disability to purchase a firearm is not against the public interest.

SECTION 2. Section 99-19-71, Mississippi Code of 1972, is brought forward as follows:

99-19-71. (1) Any person who has been convicted of a misdemeanor that is not a traffic violation, and who is a first offender, may petition the justice, county, circuit or municipal court in which the conviction was had for an order to expunge any such conviction from all public records.

(2) (a) Except as otherwise provided in this subsection, a person who has been convicted of a felony and who has paid all criminal fines and costs of court imposed in the sentence of conviction may petition the court in which the conviction was had for an order to expunge one (1) conviction from all public records five (5) years after the successful completion of all terms and conditions of the sentence for the conviction upon a hearing as determined in the discretion of the court; however, a person is not eligible to expunge a felony classified as:

(i) A crime of violence as provided in Section 97-3-2;

(ii) Arson, first degree as provided in Sections 97-17-1 and 97-17-3;

(iii) Trafficking in controlled substances as provided in Section 41-29-139;

(iv) A third, fourth or subsequent offense DUI as provided in Section 63-11-30(2)(c) and (2)(d);

(v) Felon in possession of a firearm as provided in Section 97-37-5;

(vi) Failure to register as a sex offender as provided in Section 45-33-33;

(vii) Voyeurism as provided in Section 97-29-61;

(viii) Witness intimidation as provided in Section 97-9-113;

(ix) Abuse, neglect or exploitation of a vulnerable person as provided in Section 43-47-19; or

(x) Embezzlement as provided in Sections 97-11-25 and 97-23-19.

A person is eligible for only one (1) felony expunction under this paragraph. For the purposes of this section, the terms "one (1) conviction" and "one (1) felony expunction" mean and include all convictions that arose from a common nucleus of operative facts as determined in the discretion of the court.

(b) The petitioner shall give ten (10) days' written notice to the district attorney before any hearing on the petition. In all cases, the court wherein the petition is filed may grant the petition if the court determines, on the record or in writing, that the applicant is rehabilitated from the offense which is the subject of the petition. In those cases where the court denies the petition, the findings of the court in this respect shall be identified specifically and not generally.

(3) Upon entering an order of expunction under this section, a nonpublic record thereof shall be retained by the Mississippi Criminal Information Center solely for the purpose of determining whether, in subsequent proceedings, the person is a first offender. The order of expunction shall not preclude a district attorney's office from retaining a nonpublic record thereof for law enforcement purposes only. The existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf. The effect of the expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted. No person as to whom an expunction order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender. A person as to whom an order has been entered, upon request, shall be required to advise the court, in camera, of the previous conviction and expunction in any legal proceeding wherein the person has been called as a prospective juror. The court shall thereafter and before the selection of the jury advise the attorneys representing the parties of the previous conviction and expunction.

(4) Upon petition therefor, a justice, county, circuit or municipal court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case, or the person was found not guilty at trial.

(5) No public official is eligible for expunction under this section for any conviction related to his official duties.

SECTION 3. This act shall take effect and be in force from and after July 1, 2022.