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Along with questions regarding expungements, I routinely field calls concerning one’s ability to own or possess a firearm if previously convicted. In Mississippi the answer is quite simple, it is a crime punishable by up to ten years in prison for a convicted felon to possess a firearm. It is important to note it does not matter what type of felony, as the statute is clear it is ANY felony. However, Mississippi law does allow a convicted felon to petition the Court of conviction for a Certificate of Rehabilitation, which if granted would allow them to lawfully possess a firearm.
In pertinent part, Miss. Code Ann. Sec. 97-37-5(3) provides:
A person who has been convicted of a felony under the laws of this state may apply to the court in which he was convicted 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 sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.
Feel free to post questions.
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Without fail I get at least one call a week concerning having a misdemeanor conviction removed from someone’s record. Given how routine background checks have become, the negative consequences of having a prior conviction can seriously restrict employment opportunities. Thus, anyone with a conviction should seriously consider having their record expunged.
Mississippi Law allows the following in regards to expunging a misdemeanor:
Any person who has been convicted of a misdemeanor, excluding a conviction for a traffic violation, and who is a first offender, may petition the…court…for an order to expunge any such conviction from all public records… 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. No person as to whom such 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 or conviction in response to any inquiry made of him for any purpose…
(2) 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.
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Slightly off topic but wanted to share a recent Mississippi Court of Appeals decision, on a case where I served as appellate counsel for the Appellee. The case dealt with the Bounds of the Bounds family cemetery. It is an interesting read on construing ambigious deeds, grantor’s intent, burial rights, etc. Thankfully, the Court affirmed.
http://www.mssc.state.ms.us/Images/Opinions/CO56263.pdf
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I write this post in an effort to dispel what I deem an unfortunate myth in the discharge upgrade process. The myth is so pervasive that even the Army Disharge Review Board’s website devotes a significant converage trying to debunk it. Quite simply, discharges DO NOT AUTOMATICALLY UPGRADE after six months.
In reality the process of upgrading a discharge requires more than merely demonstrating a “clean” civilian record for x number of years. A helpful resource for those interested can be found here:
http://www.nlgmltf.org/pdfs/DischargeUpgrade_Memo.pdf
As one can see the process can be quite involved and retaining an experienced attorney is certainly advantageous in framing one’s argument. Lastly, given the long term consquences of a negative discharge, upgrading if possible should be a priority for those effected.
Feel free to post questions.
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I field numerous inquiries from people interested in having a felony conviction expunged from their record. Unfortunately, most are disappointed when I explain the limited scope of Mississippi’s Expungement Statute found generally at Miss. Code Ann. Sec. 99-15-26. In short save for offenses which qualify for non-ajudication under 99-15-26, and were sentenced under those provisions, the vast majority of felony convictions can simply not be expunged.
The inability to have an offense expunged has serious conseqences for the offender attempting to successfully reenter society. It has become routine practice for even the most low skill jobs to conduct a background check as part of the hiring process. Thus, an offender’s prior record serves as a Scarlett Letter closing the door on numerous employment and educational opportunities, long after they have completed their sentences.
Although, Mississippi has yet to adopt equitable expungement, courts in other jurisdictions have used their inherent equitable powers to expunge criminal records. See, e.g., Bradford v. Mahan, 548 P. 2d at 1231; Natwig v. Webster, 562 F. Supp. 225 (D. R.I. 1983); United States v. Bohr, 406 F. Supp. 1218 (E. D. Wis. 1976); see generally O’Neal v. State, 185 Ga. App. 838, 365 S. E. 2d 894 (1988) (superior courts have authority to exercise all powers appertaining to their jurisdiction); Johnson v. State, 177 Ga. 881, 171 S. E. 699 (1933) (superior courts possess “inherent powers” not specifically granted by law). In deciding what constitutes the unusual or extreme case justifying expungement, courts have balanced the government’s needs for the records against the harm that results from maintaining the records. Natwig v. Webster, 562 F. Supp. at 228.
Given the long-term implications of a felony conviction, the Mississippi Supreme Court should sanction the use of a court’s equitable power to expunge criminal records when justice so requires.
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Does MS recognize legal separation? It is a question that I am asked on a repeated basis, with the answer being a resounding NO! While, MS allows for a separate maintenance cause of action, it is not a distinct legal status. In effort to help clear up some of the cofusion, I would like to post an excellent excerpt from fellow blogger and attorney Timothy J. Evans of Hattiesburg whose blog can be found here, http://www.timothyjevanslaw.com/FamLawBlog/Blog.html.
Evans writes:
In some states, separation is a legal status, like divorced or married. Because Mississippi does not recognize true no-fault divorce (in a true no-fault divorce, only one of the spouses must cite irreconcilable differences; in Mississippi, both spouses must agree), it is possible for couples to live separately for years without any real hope for a divorce. For this reason, Mississippi still recognizes the common law action of separate maintenance. (Note that for simplicity, I will speak of the husband supporting the wife, although a wife could have a judgment of separate maintenance awarded against her).
To obtain separate maintenance, the wife must prove to the chancery court judge that she is financially dependent on her husband, and that she is not substantially at fault for the separation. In determining the amount of the award, the judge must use the same criteria that he uses in determining the amount of alimony:
- The health, earning capacity, entire source of income, and taxes of both husband and wife;
- the reasonable needs of the wife and any child of the marriage;
- the husband’s necessary living expenses;
- resources available to the wife; and
- other relevant facts and circumstances.
–Hopefully, this post will shed some light on this long-running misconception concerning “Legal Separation” in Mississippi.
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A few weeks back I wrote about the use of social networking sites like Myspace for civil discovery purposes. Following the verdict in the Meier case, I felt inclined to post excerpts from a recent Associated Press article showcasing Missouri’s efforts to update its laws in light of emerging technologies.–
A 21-year-old woman accused of sending a vulgar text message to a 17-year-old girl is one of the first cases brought under a law against cyberbullying spurred by the suicide of a teenage girl following cruel messages on the Internet.
The 2006 death of 13-year-old Megan Meier prompted Missouri lawmakers to update state harassment law earlier this year so that it now covers bullying and stalking done through electronic media, like e-mails or text messages.
A handful of cases related to electronic communication have been filed statewide since the law took effect Aug. 28. Prosecutors do not track harassment cases based on the type of communication method used, so could not provide an exact count in recent days of how many people have been charged because of the new provisions.
In one of the new cases, Nicole Williams is accused of using electronic communications to harass a teenager in a dispute over a boy. Williams is scheduled for arraignment on one count of harassment on Jan. 8.
She allegedly sent the text message to the 17-year-old she had not previously met because she heard the girl had a physical encounter with her boyfriend. The two had just been talking, police said.
The 17-year-old girl received voice messages with lewd and threatening comments, including some that called her by the name “pork and beans” and threatened rape. Williams told police others sent those messages from her phone, according to a probable cause statement.
St. Peters police spokeswoman Melissa Doss said Friday that the 17-year-old had eggs, thumbtacks and a can of baked beans thrown on her car. Williams has not been linked with or charged with those offenses, she said.
The case was filed in November and is the first involving text messages in St. Charles County, the county where Meier resided, since the new law went into effect.
Defense attorney Michael Kielty, who represents Williams, criticized the revised law on electronic harassment. He called the Meier case tragic, but said lawmakers had engaged in a knee-jerk reaction to try to address the high-profile case.
In a landmark cyberbullying trial, Lori Drew, 49, of O’Fallon, Mo., was convicted in Los Angeles on misdemeanor federal charges of accessing computers without authorization last month.
Prosecutors said Drew and two others created a fictitious teenage boy on MySpace and sent flirtatious messages from him to neighbor Megan Meier, 13. The “boy” dumped Megan in 2006, telling her: “The world would be a better place without you.” Megan hanged herself. Drew has not yet been sentenced.
Banas said he’s still not sure Missouri’s current harassment law as it related to electronic communication would have allowed for prosecution of Drew, had it been in effect at the time of Megan’s death. He thinks it would have been difficult to prove the case because of a lack of corroborating evidence. “The communications weren’t sent by Mrs. Drew, for one thing,” he said. Drew wasn’t charged with harassment in the California case.
About 45 states have updated their laws to address harassment through electronic communications or crafted new laws to respond to the concerns of cyberbullying or cyberstalking, said Naomi Goodno, an associate professor at Pepperdine University School of Law who has written about cyberbullying law. She said many of those changes happened prior to the Meier case or were fueled by other concerns.
State Sen. Scott Rupp, who sponsored the bill to change Missouri harassment law, said Missouri’s law hasn’t been fully tested, but he believes it is making people more aware of what they say online.
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Luckily, Mississippi’s stalking statute has already been updated to address emerging technologies. The following link is to a pdf brochure summarizing Misssissippi’s cyber crime laws, that some might find helpful:
http://www.ago.state.ms.us/images/uploads/forms/stalkingbrochure.pdf
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After countless inquires, I write this post in order to help clarify what I deem a long running misconception concerning child custody law throughout Mississippi. Specifically, that a child twelve or older has the right to choose which parent they wish to live with in the event of a custody dispute.
Miss Code Ann. Sec. 93-11-65, provides: “if the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, the chancellor may consider the preference of a child of twelve (12) years of age or older as to the parent with whom the child would prefer to live with in determining what would be in the best interest and welfare of the child.”
Consequently, the Mississippi Court of Appeals has held that trial court’s are not required to follow the child’s stated preference. D.A.P. v. C.A.P.R., 918 So.2d 809, 824(¶ 62) (Miss.Ct.App.2005). Mississippi case law does not support the contention that a child’s prefernce to live with the non-custodial parent, standing alone, will satisfy the material change of circumstance requirement. Id. Further, the child’s preference is but one factor in considering the ultimate issue of what is in the best interest of the child. Brown v. Brown, 764 So.2d 502, 505 (Miss.Ct.App.2000) Thus, a child’s preference is just one factor for the Chancellor to consider, albeit a strong one.
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Without fail every week I field numerous phone calls, from ex-spouses, soon to be ex-spouses, parents, and others concerned about various content found on social networking sites like Myspace and Facebook. Thus, I feel compelled to share this article I ran across concerning the dangers of too much information floating around in cyberspace.
From the Associated Press:
PROVIDENCE, R.I. - Two weeks after Joshua Lipton was charged in a drunken driving crash that seriously injured a woman, the 20-year-old college junior attended a Halloween party dressed as a prisoner. Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled “Jail Bird.”
In the age of the Internet, it might not be hard to guess what happened to those pictures: Someone posted them on the social networking site Facebook. And that offered remarkable evidence for Jay Sullivan, the prosecutor handling Lipton’s drunken-driving case.
Sullivan used the pictures to paint Lipton as an unrepentant partier who lived it up while his victim recovered in the hospital. A judge agreed, calling the pictures depraved when sentencing Lipton to two years in prison.
Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment.
“Social networking sites are just another way that people say things or do things that come back and haunt them,” said Phil Malone, director of the cyberlaw clinic at Harvard Law School’s Berkman Center for Internet & Society. “The things that people say online or leave online are pretty permanent.”
The pictures, when shown at sentencing, not only embarrass defendants but also can make it harder for them to convince a judge that they’re remorseful or that their drunken behavior was an aberration. (Of course, the sites are also valuable for defense lawyers looking to dig up dirt to undercut the credibility of a star prosecution witness.)
Prosecutors do not appear to be scouring networking sites while preparing for every sentencing, even though telling photos of criminal defendants are sometimes available in plain sight and accessible under a person’s real name. But in cases where they’ve had reason to suspect incriminating pictures online, or have been tipped off to a particular person’s MySpace or Facebook page, the sites have yielded critical character evidence.
“It’s not possible to do it in every case,” said Darryl Perlin, a senior prosecutor in Santa Barbara County, Calif. “But certain cases, it does become relevant.”
Perlin said he was willing to recommend probation for Lara Buys for a drunken driving crash that killed her passenger last year — until he thought to check her MySpace page while preparing for sentencing.
The page featured photos of Buys — taken after the crash but before sentencing — holding a glass of wine as well as joking comments about drinking. Perlin used the photos to argue for a jail sentence instead of probation, and Buys, then 22, got two years in prison.
“Pending sentencing, you should be going to (Alcoholics Anonymous), you should be in therapy, you should be in a program to learn to deal with drinking and driving,” Perlin said. “She was doing nothing other than having a good old time.”
Santa Barbara defense lawyer Steve Balash said the day he met his client Jessica Binkerd, a recent college graduate charged with a fatal drunken driving crash, he asked if she had a MySpace page. When she said yes, he told her to take it down because he figured it might have pictures that cast her in a bad light.
But she didn’t remove the page. And right before Binkerd was sentenced in January 2007, the attorney said he was “blindsided” by a presentencing report from prosecutors that featured photos posted on MySpace after the crash.
One showed Binkerd holding a beer bottle. Others had her wearing a shirt advertising tequila and a belt bearing plastic shot glasses.
Binkerd wasn’t doing anything illegal, but Balash said the photos hurt her anyway. She was given more than five years in prison, though the sentence was later shortened for unrelated reasons.
“When you take those pictures like that, it’s a hell of an impact,” he said.
Rhode Island prosecutors say Lipton was drunk and speeding near his school, Bryant University in Smithfield, in October 2006 when he triggered a three-car collision that left 20-year-old Jade Combies hospitalized for weeks.
Sullivan, the prosecutor, said another victim of the crash gave him copies of photographs from Lipton’s Facebook page that were posted after the collision. Sullivan assembled the pictures — which were posted by someone else but accessible on Lipton’s page — into a PowerPoint presentation at sentencing.
One image shows a smiling Lipton at the Halloween party, clutching cans of the energy drink Red Bull with his arm draped around a young woman in a sorority T-shirt. Above it, Sullivan rhetorically wrote, “Remorseful?”
Superior Court Judge Daniel Procaccini said the prosecutor’s slide show influenced his decision to sentence Lipton.
“I did feel that gave me some indication of how that young man was feeling a short time after a near-fatal accident, that he thought it was appropriate to joke and mock about the possibility of going to prison,” the judge said in an interview.
By Eric Tucker Associated Press.
While the above article discusses the ramifications in a criminal context, the dangers are equally applicable in the civil arena, especially domestic relations. The bottom line is if that you don’t want your behavior exposed in Court don’t put it online for all the world to see.
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I just wanted to pass along a positive review of Clio’ s web-based practice management software. Having recently tried other programs geared for small firms and solos, I found none that could compare to Clio’s no-frills simplicity, and easy access from any computer. While, it does not have all the bells and whistles that some might desire, it compensates with ease of use and cost effectiveness. Plus, Clio provides a wealth of online storage space. Needless to say I am slowly being won over to the Software as a Service (SaaS) concept.