Criminal Law 101 – Post-conviction Relief

Many individuals convicted of criminal offenses in California worry that their records will follow them forever, but post-conviction relief is an option in some cases to clear a criminal conviction and put the incident into the past. The knowledgeable defense lawyers of The Kavinoky Law Firm are well-versed in California post-conviction relief options, and will fight to help an individual clear up a criminal record. Post-conviction relief options vary case by case, but in general, will depend on three key factors:

• Whether the case was charged as a misdemeanor or a felony; and
• Whether the offense was chargeable with time in jail or prison; and
• Whether probation was included in the sentence and has been completed

Because there are many legal terms that people may not be familiar with, this section will provide definitions and highlight several key components common to most post-conviction options. The most common post-conviction relief options include: sealing and destruction of records, expungement, felony reduction, and Certificates of Rehabilitation and/or pardon.

Misdemeanors vs. Felonies: When evaluating a case for the first time, a criminal defense attorney will first want to know whether the prior offense was charged as a misdemeanor or a felony. Ultimately the difference between a misdemeanor and felony comes down to the severity of the offense and the punishment that can be imposed.

Misdemeanors typically involve fines and are punishable by not more than one year in county jail. They are considered less severe than felonies. Felonies, by definition, are punishable with one year or more in state prison. While any time behind bars is difficult, technically county jail is considered less severe than prison and is reserved for less serious offenses.

Probation Requirement: In addition to jail or prison, most crimes include a period of time where a person is restricted from doing certain things. In general, probation is commonly included as a condition of conviction in nearly all misdemeanor crimes and some felonies. Probation can be either formal (supervised by a probation officer) or informal (it is up to the individual to comply with the terms without reporting to a probation officer). In many cases even something seemingly small, like getting a traffic ticket while on probation can be enough to cause the original judge to impose additional penalties, such as additional jail time. Post-conviction relief is not generally available until the probationary period is over.

Typically felonies attach a prison term and parole opportunity. There are different post-conviction options for parolees including Certificates of Rehabilitation and/or pardons. However, certain felony offenses are considered less serious, so the judge may grant county jail time and probation. In these cases, misdemeanor post-conviction relief would be available.

Early Termination of Probation: Most post-conviction relief is unavailable to individuals whom have not yet completed their entire probationary term, with certain exceptions. California Penal Code Section 1203.3 allows a judge to modify or revoke probation or terminate probation on a case-by-case basis. This is an important aspect to any discussion on post-conviction relief since expungement and other relief is generally unavailable if you are still on probation. Under PC 1203.3 a probationer can petition the judge to terminate probation early. Early termination of probation requires a skilled defense attorney to go before the judge and make an effective argument in favor of early termination.

Wobblers: Most offenses are clearly defined by the penal code as either misdemeanors or felonies. However, there are always exceptions. Certain crimes, referred to as “wobblers” can be charged by the prosecutor as either misdemeanors or felonies. In some cases people may not remember the details of their prior convictions and laws may have changed over the years. As a general rule, county jail and probation are clear indicators that a crime was charged as a misdemeanor.

Common examples of wobblers include certain DUI / DWI offenses, drug possession, assault and domestic violence offenses. If a conviction for a wobbler offense includes county jail time (regardless of whether any actual time is served) and probation, then the conviction is eligible for misdemeanor relief including sealing of records, reduction of felony to a misdemeanor and/or expungement. Straight felony convictions, on the other hand, would require an application to the governor via a Certificate of Rehabilitation or pardon.

As stated, felonies by definition are more serious than misdemeanors. In certain cases wobblers may rise to the level of a felony if certain aggravating circumstances are present, for example, when someone is actually injured. Straight felonies – those that are not wobblers – attach a specific prison term, and in most cases, there is a start and end date with a possibility of parole. Individuals convicted of felonies which were paroled, have stricter standards, as they relate to the availability of post-conviction options. Generally, in order to relieve the civil consequences of a prior felony conviction requires application for pardon or Certificate of Rehabilitation, which are more lengthy and involved than misdemeanor relief options.

A California criminal conviction doesn’t have to follow an individual through life, hampering opportunities for employment, education, housing, and other necessities. The experienced, caring defense attorneys of The Kavinoky Law Firm are knowledgeable about every aspect of post-conviction relief, and will explore every option available to clean up an individual’s criminal record. Contact a skilled attorney today for a free consultation.