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Lee Turner, Attorney at Law » Main
Lee Turner, Attorney at Law » Posts in 'Main' category

New Mississippi Expungement Law 2010

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

A Short Primer on Life Estate Deeds

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.

Right to Bear Arms and Convicted Felons-Mississippi

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.

Misdemeanor Expungement Law

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.

Appellate Victory-The Bounds of the Bounds Family Cemetery

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

Dispelling The Military Discharge Upgrade Myth

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.

The Need for Equitable Expungement in Mississippi

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.

Myspace Cyber-Stalking Follow-Up & Relevant Mississippi Law

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.

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

Myspace and Facebook a Discovery Bonanza

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.

 

Inaugural Post!

Welcome to my new blog on issues related to building a general solo practice from the ground up.  In addition, my blog will discuss and address frequently asked questions on a variety of legal issues that touch upon the lives of everyday Mississippians, from DUI to divorce law.

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