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Ali Kirk
Ali Kirk, Lawyer
Category: Criminal Law
Satisfied Customers: 244
Experience:  14+ years experience in misdemeanor and felony trials and appeals.
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Hi, I have recently been charged with a misdemeanor shoplifting.

Customer Question

Hi, I have recently been charged with a misdemeanor shoplifting. I am 20 years old now, and when I was about 15 I was charged with a misdemeanor which I was allowed to work off through diversion. I was wondering if the prior misdemeanor I had as a juvenile will affect my chances at getting diversion for the current charge or if it will affect my chances at expungement in the future.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Ali Kirk replied 5 years ago.

Thank you for your question. Can you please tell me what the juvenile crime was?

 

Meaning, was it theft, simple assault, etc?

 

Thank you very much.

Customer: replied 5 years ago.
It was petty theft, although I think I may have gotten it removed by diversion. It also occurred in another state (Florida).
Expert:  Ali Kirk replied 5 years ago.

Thank you. Just to be sure, did you seek expungement/record seal for the Florida Juvenile Case? In other words, did you engage in any proceedings to get the Florida conviction removed? Usually, in Florida, you do not have to do this.

 

Thank you.

Customer: replied 5 years ago.
No, I just carried out the diversion as ordered. I assumed either that would clear the charge or when I turned 18 it would be cleared.
Customer: replied 5 years ago.
Thank you so much for your help, by the way. I sincerely XXXXX XXXXX
Expert:  Ali Kirk replied 5 years ago.

Thank you for the follow-up. Generally, the availability of criminal diversion is dependent on several factors, but the most important is the discretion of the prosecutor. Discretion is a fancy word for saying that it is someone's opinion.

 

However, in my experience, diversion is usually available for non-violent crimes and first time offenders. As a result, based on the facts that you presented, it appears that diversion may be an option. For informational purposes, diversion is referenced in: Washington Code RCW 9.94A.850 - http://search.leg.wa.gov/pub/textsearch/ViewRoot.asp?Action=Html&Item=2&X=301115436&p=1

 

Based on the facts you presented, it appears that you have not been convicted of the current crime that you have been charged with. In my opinion -- there are usually two types of criminal cases. The first -- where there are factual issues in dispute, meaning that a person did not confess to the crime and there are no good witnesses who witnessed the crime. The second, where there are really no factual issues in dispute -- meaning that the person confessed or he was seen actually committing the alleged crime.

 

Usually -- in my opinion, if there are factual issues, it may be wise to obtain an attorney or public defender to handle the case and possibly go to a jury trial. Vice-versa for the other category, like where there is a confession, then it may be wise to enter into a pre-trial plea. However, every case is different and this is only an opinion.

 

With respect to sealing or expungement of records, for informational purposes, Washington State has both options. Generally an expungement takes the case off your record. Sealing, prevents most people from seeing your record.

 

For sealing, the following Washington Code provides guidance:

____________________

 

RCW 10.97.060

Criminal history record information which consists of nonconviction data only shall be subject to deletion from criminal justice agency files which are available and generally searched for the purpose of responding to inquiries concerning the criminal history of a named or otherwise identified individual when two years or longer have elapsed since the record became nonconviction data as a result of the entry of a disposition favorable to the defendant, or upon the passage of three years from the date of arrest or issuance of a citation or warrant for an offense for which a conviction was not obtained unless the defendant is a fugitive, or the case is under active prosecution according to a current certification made by the prosecuting attorney.

Such criminal history record information consisting of nonconviction data shall be deleted upon the request of the person who is the subject of the record: PROVIDED, HOWEVER, That the criminal justice agency maintaining the data may, at its option, refuse to make the deletion if:

(1) The disposition was a deferred prosecution or similar diversion of the alleged offender;

(2) The person who is the subject of the record has had a prior conviction for a felony or gross misdemeanor;

(3) The individual who is the subject of the record has been arrested for or charged with another crime during the intervening period.

Nothing in this chapter is intended to restrict the authority of any court, through appropriate judicial proceedings, to order the modification or deletion of a record in a particular cause or concerning a particular individual or event.

_______________________

 

For expungement, the following Washington Code provides guidance:

______________________

 

RCW 9.96.060

(1) Every person convicted of a misdemeanor or gross misdemeanor offense who has completed all of the terms of the sentence for the misdemeanor or gross misdemeanor offense may apply to the sentencing court for a vacation of the applicant's record of conviction for the offense. If the court finds the applicant meets the tests prescribed in subsection (2) of this section, the court may in its discretion vacate the record of conviction by: (a)(i) Permitting the applicant to withdraw the applicant's plea of guilty and to enter a plea of not guilty; or (ii) if the applicant has been convicted after a plea of not guilty, the court setting aside the verdict of guilty; and (b) the court dismissing the information, indictment, complaint, or citation against the applicant and vacating the judgment and sentence.

(2) An applicant may not have the record of conviction for a misdemeanor or gross misdemeanor offense vacated if any one of the following is present:

(a) There are any criminal charges against the applicant pending in any court of this state or another state, or in any federal court;

(b) The offense was a violent offense as defined in RCW 9.94A.030 or an attempt to commit a violent offense;

(c) The offense was a violation of RCW 46.61.502 (driving while under the influence), 46.61.504 (actual physical control while under the influence), or 9.91.020 (operating a railroad, etc. while intoxicated);

(d) The offense was any misdemeanor or gross misdemeanor violation, including attempt, of chapter 9.68 RCW (obscenity and pornography), chapter 9.68A RCW (sexual exploitation of children), or chapter 9A.44 RCW (sex offenses);

(e) The applicant was convicted of a misdemeanor or gross misdemeanor offense as defined in RCW 10.99.020, or the court determines after a review of the court file that the offense was committed by one family member or household member against another, or the court, after considering the damage to person or property that resulted in the conviction, any prior convictions for crimes defined in RCW 10.99.020, or for comparable offenses in another state or in federal court, and the totality of the records under review by the court regarding the conviction being considered for vacation, determines that the offense involved domestic violence, and any one of the following factors exist:

(i) The applicant has not provided written notification of the vacation petition to the prosecuting attorney's office that prosecuted the offense for which vacation is sought, or has not provided that notification to the court;

(ii) The applicant has previously had a conviction for domestic violence. For purposes of this subsection, however, if the current application is for more than one conviction that arose out of a single incident, none of those convictions counts as a previous conviction;

(iii) The applicant has signed an affidavit under penalty of perjury affirming that the applicant has not previously had a conviction for a domestic violence offense, and a criminal history check reveals that the applicant has had such a conviction; or

(iv) Less than five years have elapsed since the person completed the terms of the original conditions of the sentence, including any financial obligations and successful completion of any treatment ordered as a condition of sentencing;

(f) For any offense other than those described in (e) of this subsection, less than three years have passed since the person completed the terms of the sentence, including any financial obligations;

(g) The offender has been convicted of a new crime in this state, another state, or federal court since the date of conviction;

(h) The applicant has ever had the record of another conviction vacated; or

(i) The applicant is currently restrained, or has been restrained within five years prior to the vacation application, by a domestic violence protection order, a no-contact order, an antiharassment order, or a civil restraining order which restrains one party from contacting the other party.

(3) Once the court vacates a record of conviction under subsection (1) of this section, the person shall be released from all penalties and disabilities resulting from the offense and the fact that the person has been convicted of the offense shall not be included in the person's criminal history for purposes of determining a sentence in any subsequent conviction. For all purposes, including responding to questions on employment or housing applications, a person whose conviction has been vacated under subsection (1) of this section may state that he or she has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.

(4) All costs incurred by the court and probation services shall be paid by the person making the motion to vacate the record unless a determination is made pursuant to chapter 10.101 RCW that the person making the motion is indigent, at the time the motion is brought.

(5) The clerk of the court in which the vacation order is entered shall immediately transmit the order vacating the conviction to the Washington state patrol identification section and to the local police agency, if any, which holds criminal history information for the person who is the subject of the conviction. The Washington state patrol and any such local police agency shall immediately update their records to reflect the vacation of the conviction, and shall transmit the order vacating the conviction to the federal bureau of investigation. A conviction that has been vacated under this section may not be disseminated or disclosed by the state patrol or local law enforcement agency to any person, except other criminal justice enforcement agencies.

__________

 

Accordingly, based on the above statutes, it appears that a pretrial diversion program may render you ineligible for sealing and with an expungement there appears to be a three year waiting period.

 

As a result, it would be advisable to contact a public defender to determine what your options are before you enter into a plea or disposition for the current charge.

 

I hope you found my answer helpful, please click on the GREEN ACCEPT for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!

 

DISCLAIMER (I really don't like this but it is necessary): This response is limited by the information that you have provided to this lawyer. Based on the information you have provided, I have responded based on my knowledge and interpretation of existing laws. It is possible that if the same question was asked to another lawyer, the response could be different. This response is for "Legal Informational" purposes only and should not be confused with "Legal Advice" and nothing in this response should be construed as legal advise for any individual case. Under no circumstances does this response directly or indirectly, establish or intend to establish an Attorney-Client relationship. This response is not and shall not be construed as a solicitation for the legal services of any attorney. If you have already retained a lawyer in connection with this inquiry and this fact is unknown to this lawyer, this response should not be construed as impending and/or interfering with your attorney-client relationship with such attorney.

 

This information is limited in scope and is confined to the question asked and should not be relied upon to provide a comprehensive picture of any particular situation and you are strongly encouraged to seek counsel for further course of action, if applicable. In other words, this response is not intended nor shall it be construed as providing you with all the information that your legal questions/issues may require. If you do require legal advice and retention/hiring of an attorney, I encourage you to consult an attorney who is actively engaged in the practice of law in the area of law relevant to your legal questions/issues and who is admitted to the bar or lawyer licensing agency in your jurisdiction(s) or the jurisdiction(s) that has jurisdiction over your legal questions/issues. This attorney is not responsible for any loss, injury, claim, liability, or damage related to your use of this response, whether from errors or omissions in the content of the response or any other sites that I may provide to you for reference.

 

Customer: replied 5 years ago.
Is there a way to contact a public defender for my arraignment? Or do I have to plead not guilty and bring my case to a second court date?
Expert:  Ali Kirk replied 5 years ago.

Thank you for the follow-up. One thing that I have learned is that every court in every state is different. Also, just about every judge even in the same courthouse does things differently. I think this really makes things a mess and lack of uniformity hurts the system.

 

After stating the above, I am not familiar with the exact court and judge that your case is pending in. However, from a U.S. Constitutional perspective, an arraignment is a proceeding were you enter a plea. You can and should plead not guilty at the arraignment even without an attorney.

 

Then usually, your case will be set for a pretrial or trial date. If you do not have an attorney at the arraignment, it would be advisable to instruct the judge that you are seeking an attorney and request enough time to meet and retain an attorney. You may have to ask for a continuance.

 

In the meantime, meaning tomorrow -- if possible -- contact the King County Public Defender and request a meeting with an attorney. Here is the link: http://www.kingcounty.gov/courts/OPD.aspx

 

When you call the Public Defender, it would be wise to inform them of the charge(s) and that there is a possibility of jail time if you are convicted. Why? Based on Constitutional Law, you can usually only get a public defender if there is a possibility that the charge may result in an incarceration, even if it is only for one day.

 

If you hit a dead end. Contact me again. I have a friend who used to practice in King County and he may be able to refer you to someone. But I think a public defender will take your case. Good luck.

 

I hope you found my answer helpful, please click on the GREEN ACCEPT for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!

 

DISCLAIMER (I really don't like this but it is necessary): This response is limited by the information that you have provided to this lawyer. Based on the information you have provided, I have responded based on my knowledge and interpretation of existing laws. It is possible that if the same question was asked to another lawyer, the response could be different. This response is for "Legal Informational" purposes only and should not be confused with "Legal Advice" and nothing in this response should be construed as legal advise for any individual case. Under no circumstances does this response directly or indirectly, establish or intend to establish an Attorney-Client relationship. This response is not and shall not be construed as a solicitation for the legal services of any attorney. If you have already retained a lawyer in connection with this inquiry and this fact is unknown to this lawyer, this response should not be construed as impending and/or interfering with your attorney-client relationship with such attorney.

 

This information is limited in scope and is confined to the question asked and should not be relied upon to provide a comprehensive picture of any particular situation and you are strongly encouraged to seek counsel for further course of action, if applicable. In other words, this response is not intended nor shall it be construed as providing you with all the information that your legal questions/issues may require. If you do require legal advice and retention/hiring of an attorney, I encourage you to consult an attorney who is actively engaged in the practice of law in the area of law relevant to your legal questions/issues and who is admitted to the bar or lawyer licensing agency in your jurisdiction(s) or the jurisdiction(s) that has jurisdiction over your legal questions/issues. This attorney is not responsible for any loss, injury, claim, liability, or damage related to your use of this response, whether from errors or omissions in the content of the response or any other sites that I may provide to you for reference.

 

Ali Kirk, Lawyer
Category: Criminal Law
Satisfied Customers: 244
Experience: 14+ years experience in misdemeanor and felony trials and appeals.
Ali Kirk and 9 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.
Thanks for all your help, I will let you know what happens.
Customer: replied 5 years ago.
Ali, I wanted to clear one last thing up. So if I was convicted of a misdemeanor when I was 15 in Florida for theft, do I have to worry that this charge will come up when I go to court for my current charge? Also, do I have to acknowledge my juvenile charge in court if asked?
Expert:  Ali Kirk replied 5 years ago.

Thank you for the additional information. Generally, Florida Juvenile charges do not come up on an adult record.

 

However, it is possible that your FBI rap sheet (everyone has one) may contain the information. It is possible that the prosecutor may have access to it. However, most of the time in misdemeanor cases, they (the prosecutor) will usually not look at the FBI sheet.

 

If you are asked by a judge if you have a juvenile record, then you must disclose it. If you are not asked, I see no reason to bring it up.

 

Good luck and feel free to let me know what occurs.

 

DISCLAIMER (I really don't like this but it is necessary): This response is limited by the information that you have provided to this lawyer. Based on the information you have provided, I have responded based on my knowledge and interpretation of existing laws. It is possible that if the same question was asked to another lawyer, the response could be different. This response is for "Legal Informational" purposes only and should not be confused with "Legal Advice" and nothing in this response should be construed as legal advise for any individual case. Under no circumstances does this response directly or indirectly, establish or intend to establish an Attorney-Client relationship. This response is not and shall not be construed as a solicitation for the legal services of any attorney. If you have already retained a lawyer in connection with this inquiry and this fact is unknown to this lawyer, this response should not be construed as impending and/or interfering with your attorney-client relationship with such attorney.

 

This information is limited in scope and is confined to the question asked and should not be relied upon to provide a comprehensive picture of any particular situation and you are strongly encouraged to seek counsel for further course of action, if applicable. In other words, this response is not intended nor shall it be construed as providing you with all the information that your legal questions/issues may require. If you do require legal advice and retention/hiring of an attorney, I encourage you to consult an attorney who is actively engaged in the practice of law in the area of law relevant to your legal questions/issues and who is admitted to the bar or lawyer licensing agency in your jurisdiction(s) or the jurisdiction(s) that has jurisdiction over your legal questions/issues. This attorney is not responsible for any loss, injury, claim, liability, or damage related to your use of this response, whether from errors or omissions in the content of the response or any other sites that I may provide to you for reference.

Customer: replied 5 years ago.
Regarding my juvenile misdemeanor: I was arrested and fingerprinted since it was in another state and neither of my guardians were present. Will this make a difference with anything or disqualify me from diversion?
Expert:  Ali Kirk replied 5 years ago.

Thank you again for the information. As I previously stated, the prosecutor may find the Florida Juvenile Case from your FBI Rap Sheet, or perhaps it may not be looked at since this is a low-level misdemeanor case.

 

As far as diversion, if the prosecutor does not know about the juvy record then all the better. If he/she knows, it will most likely not interfere with diversion.

 

As I stated a few responses ago, you must determine if you have a factual defense to this alleged crime. Why? Because nowadays, it seems that if a person has a conviction for any crime (except traffic violation), these people really seem to get excluded from jobs, schools, apartments, etc.

 

Technically, a pre-trial diversion is not considered a conviction, but please be careful before entering into any plea and get all the details from your attorney.

 

DISCLAIMER (I really don't like this but it is necessary): This response is limited by the information that you have provided to this lawyer. Based on the information you have provided, I have responded based on my knowledge and interpretation of existing laws. It is possible that if the same question was asked to another lawyer, the response could be different. This response is for "Legal Informational" purposes only and should not be confused with "Legal Advice" and nothing in this response should be construed as legal advise for any individual case. Under no circumstances does this response directly or indirectly, establish or intend to establish an Attorney-Client relationship. This response is not and shall not be construed as a solicitation for the legal services of any attorney. If you have already retained a lawyer in connection with this inquiry and this fact is unknown to this lawyer, this response should not be construed as impending and/or interfering with your attorney-client relationship with such attorney.

 

This information is limited in scope and is confined to the question asked and should not be relied upon to provide a comprehensive picture of any particular situation and you are strongly encouraged to seek counsel for further course of action, if applicable. In other words, this response is not intended nor shall it be construed as providing you with all the information that your legal questions/issues may require. If you do require legal advice and retention/hiring of an attorney, I encourage you to consult an attorney who is actively engaged in the practice of law in the area of law relevant to your legal questions/issues and who is admitted to the bar or lawyer licensing agency in your jurisdiction(s) or the jurisdiction(s) that has jurisdiction over your legal questions/issues. This attorney is not responsible for any loss, injury, claim, liability, or damage related to your use of this response, whether from errors or omissions in the content of the response or any other sites that I may provide to you for reference.

 

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