GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2013

H                                                                                                                                                   D

HOUSE DRH80120-LH-126B  (03/12)

 

 

 

Short Title:        Amend Certain Criminal Provisions.-AB		(Public)
Sponsors:	Representatives Malone and Stevens (Primary Sponsors).
Referred to:

 

A BILL TO BE ENTITLED

AN ACT to amend various criminal laws regarding concealed handgun permits, Expunctions, disposition of firearms, crime victims rights, and offenses that may be waived.

The General Assembly of North Carolina enacts:

SECTION 1.(a)  G.S. 14‑415.14(a) reads as rewritten:

"(a)       The sheriff shall make permit applications readily available at the office of the sheriff or at other public offices in the sheriff's jurisdiction. The permit application shall be in triplicate, in a form to be prescribed by the Administrative Office of the Courts,State Bureau of Investigation, and shall include the following information with regard to the applicant: name, address, physical description, signature, date of birth, social security number, military status, law enforcement status, and the drivers license number or State identification card number of the applicant if used for identification in applying for the permit."

SECTION 1.(b)  G.S. 14‑415.17 reads as rewritten:

"§ 14‑415.17.  Permit; sheriff to retain and make available to law enforcement agencies a list of permittees.

The permit shall be in a certificate form, as prescribed by the Administrative Office of the Courts,State Bureau of Investigation, that is approximately the size of a North Carolina drivers license. It shall bear the signature, name, address, date of birth, and the drivers license identification number used in applying for the permit. The sheriff shall maintain a listing, including the identifying information, of those persons who are issued a permit. The permit information shall be available upon request to all State and local law enforcement agencies.

Within five days of the date a permit is issued, the sheriff shall send a copy of the permit to the State Bureau of Investigation. The State Bureau of Investigation shall make this information available to law enforcement officers and clerks of court on a statewide system."

SECTION 2.(a)  G.S. 15A‑150 reads as rewritten:

"(a)       Notification to AOC. – The clerk of superior court in each county in North Carolina shall, as soon as practicable after each term of court, file with the Administrative Office of the Courts the names of the following:

(1)        Persons granted an expunction under this Article.

(2)        Persons granted a conditional discharge under G.S. 14‑50.29.

(3)        Persons granted a conditional discharge under G.S. 90‑96 or G.S. 90‑113.14.

(4)        Repealed by Session Laws 2010‑174, s. 7, effective October 1, 2010.

(b)        Notification to Other State and Local Agencies. – The clerk of superior court in each county in North Carolina shall send a certified copy of an order granting an expunction to a person named in subsection (a) of this section to all of the agencies listed in this subsection. An agency receiving an order under this subsection shall expunge from its records all entries made as a result of the charge or conviction ordered expunged, except as provided in G.S. 15A‑151.

(1)        The sheriff, chief of police, or other arresting agency.

(2)        When applicable, the Division of Motor Vehicles and the Division of Adult Correction of the Department of Public Safety.

(3)        Any State or local agency identified by the petition as bearing record of the offense that has been expunged.

(4)        The State Bureau of Investigation (SBI).

(c)        Notification to SBI and FBI. – An arresting agency that receives a certified copy of an order under this section shall forward a copy of the order with the form supplied by the State Bureau of Investigation to the State Bureau of Investigation. The State Bureau of Investigation shall forward the order received under this section to the Federal Bureau of Investigation.

(d)        Notification to Private Entities. – A State agency that receives a certified copy of an order under this section shall notify any private entity with which it has a licensing agreement for bulk extracts of data from the agency criminal record database to delete the record in question. The private entity shall notify any other entity to which it subsequently provides in a bulk extract data from the agency criminal database to delete the record in question from its database."

SECTION 2.(b)  This section becomes effective December 1, 2013, and applies to petitions filed on or after that date.

SECTION 3.  Section 2 1/2 of Chapter 954 of the 1965 Session Laws is repealed.

SECTION 4.(a)  G.S. 15A‑830(a)(7) reads as rewritten:

"(7)      Victim. – A person against whom there is probable cause to believe one of the following crimes was committed:

a.         A Class A, B1, B2, C, D, or E felony.

b.         A Class F felony if it is a violation of one of the following: G.S. 14‑16.6(b); 14‑16.6(c); 14‑18; 14‑32.1(e); 14‑32.2(b)(3); 14‑32.3(a); 14‑32.4; 14‑34.2; 14‑34.6(c); 14‑41; 14‑43.3; 14‑43.11; 14‑190.17; 14‑190.19; 14‑202.1; 14‑277.3A; 14‑288.9; 20‑138.5; or former G.S. 14‑277.3.

c.         A Class G felony if it is a violation of one of the following: G.S. 14‑32.3(b); 14‑51; 14‑58; 14‑87.1; or 20‑141.4.

d.         A Class H felony if it is a violation of one of the following: G.S. 14‑32.3(a); 14‑32.3(c); 14‑33.2; 14‑34.6(b); 14‑277.3A; or former G.S. 14‑277.3.

e.         A Class I felony if it is a violation of one of the following: G.S. 14‑32.3(b); 14‑34.6(b); 14‑34.6(b), for offenses committed prior to December 1, 2011; or 14‑190.17A.

f.          An attempt of any of the felonies listed in this subdivision if the attempted felony is punishable as a felony.

g.         Any of the following misdemeanor offenses when the offense is committed between persons who have a personal relationship as defined in G.S. 50B‑1(b): G.S. 14‑33(c)(1); 14‑33(c)(2); 14‑33(a); 14‑34; 14‑134.3; 14‑277.3A; or former G.S. 14‑277.3.

h.         Any violation of a valid protective order under G.S. 50B‑4.1."

SECTION 4.(b)  G.S. 15A‑830(a)(7)d., as enacted by this section, becomes effective December 1, 2013, and applies to all offenses committed on or after that date. G.S. 15A‑830(a)(7)e., as enacted by this section, is effective when it becomes law.

SECTION 5.(a)  G.S. 7A‑273(2) reads as rewritten:

"(2)      In misdemeanor or infraction cases involving alcohol offenses under Chapter 18B of the General Statutes, traffic offenses, hunting, fishing, State park and recreation area rule offenses under Chapter 113 of the General Statutes, boating offenses under Chapter 75A of the General Statutes, open burning offenses under Article 75 of Chapter 106 of the General Statutes, and littering offenses under G.S. 14‑399(c) and G.S. 14‑399(c1), to accept written appearances, waivers of trial or hearing and pleas of guilty or admissions of responsibility, in accordance with the schedule of offenses and fines or penalties promulgated by the Conference of Chief District Judges pursuant to G.S. 7A‑148, and in such cases, to enter judgment and collect the fines or penalties and costs;"

SECTION 5.(b)  This section becomes effective July 1, 2011.

SECTION 6.(a)  G.S. 15A‑145.4(c) reads as rewritten:

"(c)       Whenever any person who had not yet attained the age of 18 years at the time of the commission of the offense and has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state pleads guilty to or is guilty of a nonviolent felony, the person may file a petition in the court where the person was convicted for expunction of the nonviolent felony from the person's criminal record. The petition shall not be filed earlier than (i) four years after the date of the conviction or when (ii) the completion of any active sentence, period of probation, and post‑release supervision has been served, supervision, whichever occurs later. The person shall also perform at least 100 hours of community service, preferably related to the conviction, before filing a petition for expunction under this section. The petition shall contain the following:

(1)        An affidavit by the petitioner that the petitioner has been of good moral character since the date of conviction of the nonviolent felony in question and has not been convicted of any other felony or any misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state.

(2)        Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner's character and reputation are good.

(3)        A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.

(4)        An application on a form approved by the Administrative Office of the Courts requesting and authorizing (i) a State and national criminal history record check by the Department of Justice using any information required by the Administrative Office of the Courts to identify the individual; (ii) a search by the Department of Justice for any outstanding warrants or pending criminal cases; and (iii) a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be forwarded to the Department of Justice and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.

(5)        An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.

(6)        An affidavit by the petitioner that the petitioner has performed at least 100 hours of community service since the conviction for the nonviolent felony. The affidavit shall include a list of the community services performed, a list of the recipients of the services, and a detailed description of those services.

(7)        An affidavit by the petitioner that the petitioner possesses a high school diploma, a high school graduation equivalency certificate, or a General Education Development degree.

The petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. The district attorney shall make his or her best efforts to contact the victim, if any, to notify the victim of the request for expunction prior to the date of the hearing."

SECTION 6.(b)  G.S. 15A‑145.4(e)(1) reads as rewritten:

"(1)      The petitioner has remained of good moral character and has been free of conviction of any felony or misdemeanor, other than a traffic violation, for four years from since the date of conviction of the nonviolent felony in question or any active sentence, period of probation, or post‑release supervision has been served, whichever is later.question."

SECTION 6.(c)  G.S. 15A‑145.5(c) reads as rewritten:

"(c)       A person may file a petition, in the court where the person was convicted, for expunction of a nonviolent misdemeanor or nonviolent felony conviction from the person's criminal record if the person has no other misdemeanor or felony convictions, other than a traffic violation, and was convicted of a nonviolent misdemeanor or nonviolent felony that is eligible pursuant to subsection (b) of this section. The petition shall not be filed earlier than (i) 15 years after the date of the conviction or when (ii) the completion of any active sentence, period of probation, and post‑release supervision has been served, supervision, whichever occurs later. The petition shall contain, but not be limited to, the following:

(1)        An affidavit by the petitioner that the petitioner has been of good moral character since the date of conviction for the nonviolent misdemeanor or nonviolent felony and has not been convicted of any other felony or misdemeanor, other than a traffic violation, under the laws of the United States or the laws of this State or any other state.

(2)        Verified affidavits of two persons who are not related to the petitioner or to each other by blood or marriage, that they know the character and reputation of the petitioner in the community in which the petitioner lives and that the petitioner's character and reputation are good.

(3)        A statement that the petition is a motion in the cause in the case wherein the petitioner was convicted.

(4)        An application on a form approved by the Administrative Office of the Courts requesting and authorizing a name‑based State and national criminal history record check by the Department of Justice using any information required by the Administrative Office of the Courts to identify the individual, a search by the Department of Justice for any outstanding warrants on pending criminal cases, and a search of the confidential record of expunctions maintained by the Administrative Office of the Courts. The application shall be forwarded to the Department of Justice and to the Administrative Office of the Courts, which shall conduct the searches and report their findings to the court.

(5)        An affidavit by the petitioner that no restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner are outstanding.

Upon filing of the petition, the petition shall be served upon the district attorney of the court wherein the case was tried resulting in conviction. The district attorney shall have 30 days thereafter in which to file any objection thereto and shall be duly notified as to the date of the hearing of the petition. Upon good cause shown, the court may grant the district attorney an additional 30 days to file objection to the petition. The district attorney shall make his or her best efforts to contact the victim, if any, to notify the victim of the request for expunction prior to the date of the hearing.

The presiding judge is authorized to call upon a probation officer for any additional investigation or verification of the petitioner's conduct since the conviction. The court shall review any other information the court deems relevant, including, but not limited to, affidavits or other testimony provided by law enforcement officers, district attorneys, and victims of crimes committed by the petitioner.

If the court, after hearing, finds that the petitioner has not previously been granted an expunction under this section, G.S. 15A‑145, 15A‑145.1, 15A‑145.2, 15A‑145.3, or 15A‑145.4; the petitioner has remained of good moral character; the petitioner has no outstanding warrants or pending criminal cases; the petitioner has no other felony or misdemeanor convictions other than a traffic violation; the petitioner has no outstanding restitution orders or civil judgments representing amounts ordered for restitution entered against the petitioner; and the petitioner was convicted of an offense eligible for expunction under this section and section; and the petition was filed no earlier than (i) 15 years after the date of the conviction or (ii) the completion of any active sentence, period of probation, and post‑release supervision imposed for the conviction, whichever occurred later; was convicted of, and completed any sentence received for, the nonviolent misdemeanor or nonviolent felony at least 15 years prior to the filing of the petition, it may order that such person be restored, in the contemplation of the law, to the status the person occupied before such arrest or indictment or information. If the court denies the petition, the order shall include a finding as to the reason for the denial."

SECTION 6.(d)  This section becomes effective December 1, 2013, and applies to offenses filed on or after that date, but petitions filed prior to that date are not abated by this act.

SECTION 7.  Except as provided otherwise, this act is effective when it becomes law.