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In the past I have blogged about the narrow scope of Mississippi’s Expungement statute, as well as the collateral consequences of a conviction. The Mississippi Legislature has finally decided to heed the public’s call for a more expansive expungement statute.
The new statute allows a first time offender to have one felony expunged five years after completion of the terms and conditions of the sentence and conviction. Most notably, for larceny and possession of a controlled substance.
The following is a link to the text of the full bill:
http://billstatus.ls.state.ms.us/documents/2010/pdf/HB/0100-0199/HB0160SG.pdf
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I field numerous questions from potential claimants concerning how the Social Security Administration (SSA) determines a person’s disability. The following is a very brief outline illustrating the five steps untilized by SSA.
To determine if a person is disabled, the SSA uses a five-step “sequential evaluation:”Step 1. Is the applicant working?
Step 2. Is the condition “severe?” - that is, does it limit ability to do some basic work activity, physical or mental or both?
Step 3. Does the applicant “meet” or “equal” one of the impairments listed in the SSA disability law?
Step 4. Is the applicant able to return to past relevant work (work performed within the last 15 years)?
Step 5. Can the applicant perform any other work in the national economy, considering his/her age, education and past work?
While the determination process is riddled with untold exceptions the above described test, is a great starting point in evaluating your potential claim.
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Slightly off topic, but wanted to share a recent victory before the Mississippi Employee Appeals Board. The case involved alleged misconduct on behalf of my client and some of his fellow correctional officers. Following termination at the hearing officer level, my client retained me for an appeal before the Mississippi Employee Appeals Board. Thankfully my client was reinstated with back pay.
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I routinely field calls from people, mostly elderly inquiring about a life estate deed for their home and property. To help shed some light on the subject I wanted to post an excerpt from fellow blogger attorney Brian Treacy concerning life estates:
From Treacy’s Blog
Very often clients want to “protect” their home for the family. Some think the best way to do this is giving it giving to other family members. More typically the question that is asked in this manner: “How do I add my children’s name to my deed?”. While protecting the home is a legitimate concern, there are smart ways and bad ways of achieving that goal. There is tremendous risk when transferring outright ownership to other family members, including harmful tax implications. It is just as harmful to simply add a child’s name to your deed.
A preferable method of transfer is called a Life Estate Deed.
A typical Life Estate deed legally transfers the future ownership in real estate, and reserves rights of current ownership in the person making the conveyance. This is different than an outright transfer where no strings attach to the person making the conveyance. A “life estate” is similar to the concept to a timeshare. With a timeshare, a person owns the right to use property during a designated period of ownership. An owner of a life estate has the right to live in the property for a lifetime. The lifetime right automatically terminates upon death when persons designated in the deed become outright owners.
A Life Estate Deed used for basic Estate Planning is a way to transfer ownership of property at death in the same way one might want to in a Will. The benefit of this transfer is that the Life Estate deed AVOIDS PROBATE. Thus, it is a simple, and inexpensive, way to transfer ownership of the home at death.
Use of a Life Estate Deed in Medicaid planning is a method to protect the home and have it considered an “exempt asset” for Medicaid purposes, meaning you can own a life estate and still ask Medicaid to help finance your nursing home care.
Let’s look at the list of potential benefits of a parent(s) using the Life Estate deed as a planning tool to convey a home to children:
1) the parents retain the same legal right to live in, sell, or rent, the property;
2) the parent continues to qualify for any property tax exemptions such as veterans and senior citizens exemptions that were available prior to the transfer;
3) the children can’t make the parent move out;
4) the children’s creditors or bankruptcy trustee, can’t take possession of the property;
5) capital gains when the children sell the home after parent’s death will be calculated the same way it would be if the property passed to children at death ( i.e., the property gets a stepped-up tax basis); and
6) since the value of the parent’s retained interest is now lower than the full value of the house, a gift of the remainder interest result in a shorter Medicaid penalty period than a transfer of the entire house;
7) parents, not the children, will still be responsible for the payment of all taxes, insurance and maintenance on the home.
Another Medicaid planning and probate-avoidance strategy involves a parent purchasing a life estate in the home of a child. Medicaid allows this so long as the parent actually resides in the home for at least a year after the purchase.
To determine exactly how a gift of a remainder interest will affect eligibility for Medicaid, the look-back period and the value of the transfer must be considered. The transfer is not considered to be for the full value of the house but only the “remainder interest” in the house. The remainder interest is the right that the children have to receive the home automatically upon the death of the parent. The value of the remainder interest is calculated using special actuarial tables that determine the parent’s life expectancy. The number of months of ineligibility is calculated by dividing the value of the transfer by a number known as the “penalty divisor” Medicaid cannot require an applicant to liquidate the life estate or to rent the life estate interest property. However, if the property is rented, the net rental income must go to the nursing home resident and will be counted in determining eligibility for Medicaid.
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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.