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Dave Kennett
Dave Kennett, Lawyer
Category: Criminal Law
Satisfied Customers: 27687
Experience:  25 years experience practicing attorney
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hello, i was convicted of a felony in west virginia in 1994.

Customer Question

hello,
i was convicted of a felony in west virginia in 1994. the charge was "entering without breaking". i pleaded guilty, and i was sentenced to 5 years probation and some fines. i completed my probation and have since had a clean record. i have even gone on to become a professional firefighter and EMT. so my daily life consists of helping people in my community during their darkest times. i have a 9 year old son who wants to start hunting and my father is getting along in age and i just want to be able to go on a hunting trip with them both before my dad is too old to walk through the woods. is there any chance i can have this non-violent felony dropped or have my gun rights reinstated in order to take my son hunting legally? i live in a neighboring county to the county i received the conviction. thank you for any help.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Dave Kennett replied 1 year ago.
-Could you explain your situation a little more?
How old were you when you were convicted?
Customer: replied 1 year ago.

yes sir, the actual entering without breaking was committed on dec 22, 1994, and i believe the conviction was in nov of 1995. i was born 9/14/75 so i was 19 when i committed the act and 20 when convicted. i'm now 37. thank you for any help.

Expert:  Dave Kennett replied 1 year ago.

Dear JACUSTOMER - Based on the WV statute you would appear to be qualified since you have to have been between 18 and 26 at the time you were convicted. I have attached the link to the WV statute which you can review and then get back to me with specific questions. I cannot represent clients from this website or prepare documents but if you have some specific questions regarding the statute after you have read it please let me know.

http://www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=61&art=11&section=26

Dave Kennett, Lawyer
Category: Criminal Law
Satisfied Customers: 27687
Experience: 25 years experience practicing attorney
Dave Kennett and 6 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

thank you for helping me mr. kennett. i believe the link you provided pertains to misdemeanors only. i didn't see anywhere in that statute that regarded felonies. have i misread it?

Expert:  Dave Kennett replied 1 year ago.
The way I'm reading this is either a misdemeanor offense or offenses committed between the ages of 18-26 so that's why I sent you the entire statute. It's not clear to me whether felonies are included or not and since I'm not a WV lawyer I can only read the statute the way I see it. I will opt out and allow the other experts to have a look but this is the only WV statute I can find concerning the expungement of a criminal record.
Expert:  LegalEagle1 replied 1 year ago.
Hello and welcome to JustAnswer.

The statute above does apply only to misdemeanors. In order to be eligible to have your record expunged in WV. You must first apply for and receive a full and unconditional pardon from the Governor of WV pursuant to the provisions of section eleven, article VII of the Constitution of West Virginia. See WV Code §5-1-16.

http://www.legis.state.wv.us/WVCODE/ChapterEntire.cfm?chap=05&art=1&section=16A#01

Art 7 §11 of the WV Constitution provides:

Executive may remit fines and forfeitures.
The governor shall have power to remit fines and penalties in such cases and under such regulations as may be prescribed by law; to commute capital punishment and, except where the prosecution has been carried on by the House of Delegates to grant reprieves and pardons after conviction; but he shall communicate to the Legislature at each session the particulars of every case of fine or penalty remitted, or punishment commuted and of reprieve or pardon granted, with his reasons therefor.

There is not a waiting periods to apply for a pardon in West Virginia. You can apply for a pardon any time after you have been convicted. In fact, you can apply for a pardon even if you are still in prison for your conviction; a pardon granted in this situation would have the effect of releasing from prison early but would typically have conditions attached to it, which if you break can cause the pardon to be revoked and you sent back to prison. Full and complete pardons are permanent, and are not issued frequently -- only 121 in the 36 years covering nine governor's terms. I could not find a reference that said how many people applied for a pardon.

http://www.sos.wv.gov/public-services/execrecords/Pages/Pardons.aspx


Your chance of getting a pardon will depend on your individual circumstances. Naturally, the older and less serious your conviction, and the more compelling your life story, the higher your chance of getting a pardon. Your chance of getting a pardon can also depend on who the Governor is at the time your application is reviewed; one Governor may be more lenient than another.

There are no application fees to apply for a pardon in West Virginia. You will need to contact the Governor’s office directly and request that the application materials be mailed or possibly e-mailed to you. You can contact the Governor’s office by calling 1-888-438-2731.

You will also need to file a petition to restore your gun right pursuant to W. Va. Code § 61-7-7(c) in the county where you reside.


§ 61-7-7(c) provides:

(c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law: Provided, That a person prohibited from possessing a firearm by the provisions of subdivision (4), subsection (a) of this section may petition to regain the ability to possess a firearm in accordance with the provisions of section five, article seven-a of this chapter.

http://www.legis.state.wv.us/legisdocs/code/61/WVC%2061%20%20-%20%207%20%20-%20%20%207%20%20.htm

Under federal law, if you have received a pardon from any state, the pardoned conviction cannot be used by federal authorities to prosecute you for “unlawful possession of a firearm” unless the pardon specifically says you cannot possess a gun. The petition to restore is what you will need to avoid being prosecuted under the State law. The expungement probably isn't really required but you might as well apply for it you are successful in obtaining the pardon.

Good Luck.

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Expert:  LegalEagle1 replied 1 year ago.
I enjoyed answering your question a few days ago. I just wanted to contact you to see if you needed any further assistance.

Also if you have not yet rated my answer, please do so. This the way I receive credit and compensation for my work.

Thanks.
Customer: replied 1 year ago.

yes, thank you for you time. i have drafted and filed a petition to the circuit court in the county in which i reside, within my rights contained in the wv code 67-7. the prosecutor has stated that he will not oppose the petition. the judge is currently out all week, but the local attorney that is assisting me with the process is optimistic. this judge is an avid hunter himself, so i believe that will also be in my favor. in my opinion, any reasonable person could meet me and realize that i can be trusted to handle firearms safely and within the law. i go to a job where i am willing to perform dangerous acts to ensure the safety of the people in my community.


 


in my petition, i cited the WV statute 67-7 that states i am eligible for firearms rights restoration. upon researching the federal code, a rights restoration in the presiding jurisdiction is recognized by the ATF and FBI as not convictable as a felon in possession. i still need to call and speak with these people before i assume anything. this petition is just the first step in a long road ahead of me. i will certainly be applying to the governors office as well. i believe i have a strong case, and have proven rehabilitation beyond a doubt. thank you for your answers, i will leave feedback.

Expert:  LegalEagle1 replied 1 year ago.
Good Luck. I think you meant §61-7. West Virginia does not have Chapter 67 in it's code.

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