Mississippi Advisory Opinions June 02, 1997: AGO 97-0165 (June 02, 1997)

Advisory Opinion Text

Honorable James E. Dees

Tippah County Circuit Clerk

Tippah County Courthouse

Ripley, Mississippi 38663

Re: Qualification of a Candidate

Dear Mr. Dees:

Attorney General Mike Moore has received your request for an official opinion of this office and has assigned it to me for a reply. Your letter states as follows:

As Circuit Clerk of Tippah County, I seek an official opinion regarding a man that was indicted, pled guilty to a sale of controlled substance (marijuana) in July, 1974. He was sentenced to one (1) year suspended and placed on supervised probation for two (2) years. On July, 1976, his probation was terminated, and in December of 1976, the Honorable W.W. Brown signed an Expungement Order. (See Attachment).

My question is: Can this man run for the office of Sheriff, and if he was to get elected, can he serve as Sheriff?

My other question is: Is this a valid Order since it states the wrong code or is confusing?

The Mississippi Legislature has specifically authorized expungement of criminal offender records in limited cases: youth court cases, see §§ 43-21-159 and 43-21-265; first offense misdemeanor convictions occurring prior to age 23, see § 99-19-71; and drug possession convictions occurring prior to age 26, see §49-29-150; purchase of alcoholic beverages by one under age 21, see §67-3-70; municipal court convictions, see §21-23-7. The attached Order of Expungement cites Section 41-29-150 E as the authority for the expungement of the individual's record. It is assumed that the correct cite is Section 41-29-150(d)(1) and (2) which state, in pertinent part:

(d)(1) If any person who has not previously been convicted of violating section 41-29-139, or the laws of the United States or of another state relating to ... other controlled substances or marihuana is found to be guilty of a violation of subsection (c) or (d) of section 41-29-139, after trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him on probation upon such reasonable conditions as it may require and for such period, not to exceed three (3) years, as the court may prescribe. ... If during the period of his probation such person does not violate any of the conditions of the probation, then upon expiration of such period the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt, but a nonpublic record thereof shall be retained by the bureau solely for the purpose of use by the courts in determining whether or not in subsequent proceedings, such person qualifies under this subsection. Such discharge or dismissal shall not be deemed a conviction or purposes of disqualifications or disabilities imposed by law upon conviction of a crime, ....

(2) Upon the dismissal of such person and discharge of proceedings against him under paragraph (1) of this subsection, or with respect to a person who has been convicted and adjudged guilty of an offense under subsection (c) or (d) of section 41-29-139, or for possession of ... marihuana, other controlled substances or paraphernalia under prior laws of this state, such person, if he had not reached his twenty-sixth birthday at the time of the offense, may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the bureau under paragraph (1) of this subsection, all recordation relating to his arrest, indictment, trial, finding of guilty, and dismissal and discharge pursuant to this section. If the court determines, after hearing, that such person was dismissed and the proceedings against him discharged and that he had not reached his twenty-sixth birthday at the time of the offense, or that such person had satisfactorily served his sentenced or period of probation and parole, and that he had not reached his twenty-sixth birthday at the time of the offense, it shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or indictment. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or trial in response to any inquiry made of him for any purpose.

Therefore, it is the opinion of this office that a court order expunging a criminal record made pursuant to Section 41-29-150 would restore such individual to the status that he occupied prior to such conviction, and would not act as a disqualification to running for public office.

If this office can be of any further assistance, please let us know.

Very truly yours,

Mike Moore Attorney General

Sandra M. Shelson Special Assistant Attorney General.