Expungements:
Expungement is a very misunderstood term in Virginia. The Commonwealth does not allow convicted persons to “expunge” their records. The only way someone can get a charge expunged off their record is if they were never found guilty of the charge in the first place. The charge must have not been prosecuted (“nolle prosequi”) or the accused must have been declared “not guilty” by the judge or jury. In these rare cases, the charge itself can be expunged from a record so that no future interested parties would know that the person was charged with the crime.
If a person is convicted of a charge however, that conviction can never be “expunged” in the Commonwealth of Virginia. Pleading no contest (“nolo contendere”) or guilty and accepting a plea deal is the same as the judge or jury finding a defendant guilty. That charge and subsequent conviction can never be expunged off of the person’s criminal record.
Restoration of Rights:
When a person is convicted of a felony, they lose several civil rights in the Commonwealth of Virginia. The right to vote, the right to run for or hold public office, the right to serve on juries, and the right to serve as a notary public. Felons also lose the right to possess or carry a firearm.
Restoration of rights will restore the above mentioned civil liberties, but not the gun carrying right. For a permit to possess or carry a firearm a separate petition to the circuit court of the jurisdiction in which you reside must be filed. Good cause must be shown, and a permit may be granted at the Court’s discretion.
In May 2013, Governor McDonnell fashioned automatic rights restoration for non-violent felony convicts. Before that, in Virginia, there was a mandatory two-year period of good behavior for non-violent felons before they could apply for restoration of their rights.
Rights restoration of violent felons is still a five-year waiting period and the process is fairly complicated. Only the governor may restore the rights of a violent felon. The application requires basic personal information, criminal histories, a personal letter to the Governor, several letters of reference, and a variety of other information
For the purposes of rights restoration, the distinction between violent and non-violent felonies is not as obvious as it may seem. For example, both drug manufacturing and election fraud are considered violent felonies when it comes to restoration of rights.
Pardons
Pardons are granted at the discretion of the Governor. The three types of pardons are absolute, conditional, and simple. Rights must be restored before a convicted felon can request a pardon from the Governor.
Absolute pardons are the rarest type of all. This pardon is based on a petition of unjust conviction and actual innocence. This type of pardon does actually remove the conviction from the person’s criminal record.
A conditional pardon only applies to persons currently incarcerated. It is available only in extraordinary circumstances and grants the prisoner early release.
A simple pardon is the most common form of pardon in Virginia. It is an official statement of forgiveness from the Governor, and while it does not expunge the record, it can be a great help with a person’s future education and employment opportunities. Before a person can apply for a simple pardon, there is a mandatory ten-year waiting period. The ten-year waiting period starts to run as soon as the person has complied with all the conditions set forth by the court, including completion of probation and payment of any fines. This waiting period was increased by Governor McAuliffe on May 15, 2014 from five years to ten years. (
A simple pardon is the most common form of pardon in Virginia. It is an official statement of forgiveness from the Governor, and while it does not expunge the record, it can be a great help with a person’s future education and employment opportunities. Before a person can apply for a simple pardon, there is a mandatory ten-year waiting period. The ten-year waiting period starts to run as soon as the person has complied with all the conditions set forth by the court, including completion of probation and payment of any fines. This waiting period was increased by Governor McAuliffe on May 15, 2014 from five years to ten years.
https://commonwealth.virginia.gov/judicial-system/pardons/simple-pardons/
If a person was convicted of a felony, he must have been granted a restoration of rights before he can apply for a simple pardon. In the application, the person must offer proof of good citizenship, and they must often provide letters of recommendation from Virginia officials who were involved in their case.
If you have any questions about expungements, restoration of rights, or pardons, please contact the attorneys at Winslow & McCurry at (804)423-1382.
