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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 111568
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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As far as expungement can a judge overlook the 3 year

Customer Question

As far as expungement can a judge overlook the 3 year statutory rule
Submitted: 8 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
What state are you in, as we need to review the law to see if the judge has any discretion?
Also, what are you seeking to expunge specifically? A conviction? If so, felony or misdemeanor?
Customer: replied 8 months ago.
Pennsylvania, a summary and retail theft misdemeanor
Customer: replied 8 months ago.
Just had a hearing with a judge and he said he would look it over and get back to me
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
The PA law does not state that the judge has the power to waive the criteria for an expungement. Currently only summary offense convictions may be expunged in PA. If your misdemeanor was a not-guilty or no disposition was entered against you it may be expunged. Also, the PA law on expungement of summary offenses, PA code of criminal procedure Rule 490, says it has to be 5 years since completion of sentence. Also, the PA statute allowing expungement states that all of the criteria must be met, and it also says there is a 5 year waiting period from completion of sentence. See: 18 Pa. C.S.A. §9122 (http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/18/00.091.022.000..HTM).
The law, as you can read at the above link, does not make any provision for a judge to waive that statutory period, as it is a requirement for expungement of a summary offense conviction.
Customer: replied 8 months ago.
Still confused, does this mean the judge has no say in the matter
Customer: replied 8 months ago.
Misdemeanor was convicted within 5 years of summary which was committed in 2006
Expert:  Law Educator, Esq. replied 8 months ago.
Thank you for your reply.
I am afraid, no, as you can read in the law there is no clause to give the judge discretion to waive the statutory requirements. When a statute sets forth requirements, it has to specify that a judge may modify it in their discretion and absent such a specific clause, the judge has to follow the statute.