Overturning a Conviction
Many times you may want to have a record sealed or expunged, but a criminal conviction is keeping you from qualifying. THERE IS HOPE!
OVERTURNING (VACATE) A CONVICTION - BRINGING YOU BACK FROM THE LEGALLY DEAD
If you have been previously convicted of a crime, that conviction WILL disqualify from sealing or expunging your criminal record. Don’t despair, there may be a way to vacate (overturn) that conviction if you meet certain conditions.
This page explains what criteria you need to meet in order to vacate a conviction that may be preventing you from sealing or expunging your criminal record and court case.
Terminology you should know for this page:
When a Court “Vacates” or “Sets Aside” a conviction, the conviction is essentially removed and the case is again open. We’ll use the term, “overturn” to keep it simple.
This means how the case was “disposed of” or how it was closed out to. The disposition will be one of a few things: adjudicated guilty, adjudication withheld, dismissed, nolle prossed (dropped), no file or no action (means the case was never formally filed by the state attorney’s office), found guilty by judge or jury, or acquitted by judge or jury.
3. Adjudicated or Adjudicated Guilty
Means you were “convicted” of the crime you were charged with. This is bad. Any conviction will disqualify you from being eligible to seal or expunge.
4. Withhold of Adjudication or Adjudication Withheld
Means that the Court found you guilty, but withheld adjudication. A withhold of adjudication is not a “conviction” for purposes of sealing or expunging a criminal record. This is good.
Keys to overturning a criminal conviction:
Here’s the key to overturning that conviction: You were convicted (adjudicated guilty) for a crime, whether it was a misdemeanor or felony, AND:
- You were NOT REPRESENTED by a lawyer;
- didn’t waive your right to a lawyer when you took the plea deal;
- less than 2 years have passed since you took a plea.
YOU MAY BE ABLE TO OVERTURN THAT CONVICTION!
- Usually must be done within two (2) years of the time you took that plea or you may be out of luck.
- Must have not been represented by a lawyer at the time you took the plea.
- You didn’t waive your right to a lawyer when you took the plea.
**Overturning a conviction may be particularly helpful in driver’s license suspension cases where people pile up conviction after conviction for credit time served deals that only end up putting them in habitual traffic offender status!
SUSPENDED DRIVER'S LICENSESUSPENDED DRIVER'S LICENSES
Overturning a conviction is also helpful in minor cases such as possession of marijuana or drug paraphernalia. Most people don’t know that if you are convicted for any drug related offense, the court is required to direct the Department of Highway Safety and Motor Vehicles to suspend your license for a period of two years! If the conviction(s) is overturned, the case is again “open”. It is like starting from the beginning all over again. However, you may be then able to re-close it with a withhold of adjudication (or maybe get it dismissed) and then seal or expunge that arrest that you just had overturned or seal another arrest that the conviction had prevented previously. Also, if you have a suspended license, the overturning of your drug related conviction may put you in the legal position of getting your license back! Then, you may seal or expunge your drug conviction or another charge that you wanted to seal or expunge.
THE DRAWBACKS OF OVERTURNING A CONVICTION:
Remember, overturning a conviction may also have its drawbacks. It puts you back in the same position you were before you were convicted the first time. Remember, it’s like starting all over again. We will do our very best to attempt to re-close it without a conviction, however, no honest attorney should ever guarantee you any certain outcome in any case and we won’t either. The fact is there is always a possibility that you may get a worse sentence the second time around.
THE POSITIVES OF OVERTURNING A CONVICTION:
However, we know from experience, that in certain situations, certain results are typical. For example, if you have never been convicted of anything before, and the only conviction you have ever had is for the case you are trying to have overturned, it is very rare, especially in misdemeanor cases, that the Court or State Attorney will press for a conviction when it is re-closed. Also, usually it benefits you to have your conviction overturned because the case is now older and more difficult for the State Attorney to prove.