Relief from a Criminal Conviction (2023 Edition)

North Carolina law allows the expunction of various kinds of proceedings that end in the dismissal of a case. All involve cases that end without a conviction. The main types of dismissals are discussed briefly below and in greater detail in the parts of this guide on the particular dismissal.

G.S. 15A-146 is the main mechanism for cases that end without a conviction. It covers dismissals and findings of not guilty. It imposes no preconditions for an expunction other than those stated in that statute.

Both pre-plea and post-plea diversions are types of dismissals. Ordinarily, neither type of diversion is considered a conviction because neither ends with an adjudication of guilt.[1] The presence of a diversion on a person’s record, although not a conviction, may still have adverse consequences. To obtain an expunction, the defendant must meet both the conditions for obtaining the diversion and the conditions for expunction.

Both types of diversions in North Carolina take place after the issuance of charges. North Carolina state law does not contain statutory procedures for pre-charge deferrals in adult criminal cases. Compare David W. Andrews & John Rubin, North Carolina Juvenile Defender Manual § 5.4, Diversion (UNC School of Government, 2017) (discussing diversion procedure in juvenile cases before the filing of a delinquency petition). But see Jeff Welty, Officer Discretion and Failure to Discharge Duties under G.S. 14-230, N.C. Crim. L., UNC Sch. of Gov’t Blog (July 31, 2023) (recognizing that officers generally have discretion not to charge offense). Nor does state law require prosecutor approval before the issuance of criminal charges except in limited instances. See, e.g., G.S. 15A-301(b1) (charges against school employees); G.S. 14-190.20 (obscenity offenses).

Recent legislative changes had the potential to slow issuance of criminal charges in citizen-initiated cases. Under North Carolina law, an alleged victim of a crime may appear before a magistrate and present evidence of a crime, usually through his or her sworn testimony. If the magistrate finds probable cause, the magistrate may issue criminal charges without involvement by a law enforcement officer or prosecutor. Jeff Welty, Private Citizens Initiating Criminal Charges, N.C. Crim. L., UNC Sch. of Gov’t Blog (Apr. 9, 2015). In 2017, the General Assembly revised G.S. 15A-304(b) to provide that a magistrate may not issue criminal charges unless the citizen-complainant presented his or her testimony by written affidavit or an exception applied, such as corroborating law enforcement investigation. S.L. 2017-176 (S 384). In 2018, however, the General Assembly repealed the written affidavit requirement in citizen-initiated cases. In such cases, the magistrate still must issue a criminal summons, not an arrest warrant, unless an exception applies. G.S. 15A-304(b), revised by S.L. 2018-40 (S 168). If citizen-initiated misdemeanor charges are issued, the cases are initially directed to mediation unless an exception applies. G.S. 7A-38.5(e).

The ultimate form of diversion is decriminalization. The North Carolina Office of Indigent Defense Services (IDS) proposed that several low-level misdemeanors be reclassified as infractions, both to save costs on indigent defense representation and reduce potential collateral consequences. Under North Carolina law, an infraction is a civil violation of law, not a criminal offense. The General Assembly decriminalized some of the recommended offenses but reduced more to Class 3 misdemeanors, which is the lowest misdemeanor classification in North Carolina, and eliminated the possibility of imprisonment for those offenses except when the defendant has a longer criminal record. See S.L. 2013‐360, sec. 18B.13–18B.15 (S 402), as amended by S.L. 2013‐385, sec. 4–6 (S 182). As a result, many indigent defendants have no right to appointed counsel in these cases because they face no imprisonment; however, they still face collateral consequences if convicted because a Class 3 misdemeanor remains a crime. See John Rubin, Appointment of Counsel for Class 3 Misdemeanors (UNC School of Government, Nov. 2013); see also Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055, 1065–69 (May 2015) (criticizing this approach); Jeff Welty, Overcriminalization in North Carolina, 92 N.C. L. Rev. 1935 (Sept. 2014) (discussing trends in North Carolina).

Deferred prosecutions. A deferred prosecution is a form of pre-plea diversion. It is considered a pre-plea procedure because it is done before a defendant pleads guilty or is found guilty. A prosecutor may require as a part of a deferred prosecution agreement that the defendant admit the allegations in the charges, which can be used against the defendant if he or she violates the deferred prosecution agreement and the prosecution proceeds. A guilty plea is not proper with a deferred prosecution, however. See State v. Baker, 247 N.C. App. 398 (2016) (unpublished).

A deferred prosecution may be statutory or nonstatutory. A statutory deferred prosecution is a procedure by which the court places a person on probation for the offense and defers the proceedings. Generally, to qualify for a statutory deferred prosecution, the defendant must meet the preconditions in G.S. 15A-1341(a1). Deferred prosecutions with different preconditions are authorized for certain tobacco offenses and drug offenses handled through drug treatment courts. A prosecutor also may enter into a nonstatutory deferred prosecution agreement, which is generally without court involvement or probation. For both statutory and nonstatutory deferred prosecutions, once the defendant complies with the agreement, the prosecutor dismisses the charges.

A dismissal pursuant to a deferred prosecution is subject to expunction if the defendant meets the requirements of G.S. 15A-146.

Discharges and dismissals. A discharge and dismissal, also called a conditional discharge, is a form of post-plea diversion. It is considered a post-plea procedure because it is done after a defendant pleads guilty or is found guilty. Like a deferred prosecution, a discharge and dismissal is a procedure by which the court places a person on probation for the offense and defers the proceedings. Various statutes authorize discharges and dismissals. G.S. 15A-1341(a4) allows a discharge and dismissal for Class H and I felonies and misdemeanors. Other statutes allow discharges and dismissals for specific offenses, such as drug and prostitution offenses. The general discharge and dismissal statute and the statutes dealing with specific offenses provide alternative ways of obtaining a discharge and dismissal—a person should be able to obtain a discharge and dismissal under any statute under which he or she qualifies. Under all of the statutes, if the person successfully completes the terms of the probation, the court discharges the person and dismisses the proceedings. For a summary of the different conditional discharges available in North Carolina, see Jamie Markham, All the Conditional Discharges, N.C. Crim. L., UNC Sch. of Gov’t Blog (Jul. 5, 2018), and Jamie Markham, Another New Conditional Discharge: Threats and False Reports of Mass Violence, N.C. Crim. L., UNC Sch. of Gov’t Blog (Jul. 12, 2018).

A discharge and dismissal is subject to expunction, but the procedures may vary depending on the statute being used. Some discharge and dismissal statutes specifically refer to G.S. 15A-146; therefore, a person must satisfy the requirements of that statute to obtain an expunction. See G.S. 14-458.1(c) (expunction of cyberbullying offenses).

Some discharge and dismissal statutes do not contain any provision for expunction. See G.S. 14-313(f) (discharge and dismissal of tobacco offenses); G.S. 15A-1341(a4) (discharge and dismissal of Class H and I felonies and any class of misdemeanor). Because a discharge and dismissal is a form of dismissal, a person should be able to proceed under G.S. 15A-146 to obtain an expunction. G.S. 15A-146 does not distinguish between dismissals by a court, under the discharge and dismissal procedures or on other grounds, and dismissals by a prosecutor.

Some discharge and dismissal statutes have their own expunction provisions. See G.S. 15A-145.1 (expunction of discharge and dismissal of gang offense under G.S 14-50.29 and G.S. 14-50.30); G.S. 15A-145.2(a) (expunction of discharge and dismissal of drug and paraphernalia offenses under G.S. 90-96); G.S. 15A-145.3(a) (expunction of discharge and dismissal of toxic vapor offenses under G.S. 90-113.14); G.S. 15A-145.6 (expunction of discharge and dismissal of prostitution offenses under G.S. 14-204); G.S. 15A-145.7 (expunction of discharge and dismissal of threats of mass violence under G.S. 14-277.5 through G.S. 14-277.7). The question arises whether these statutes provide the exclusive mechanism for expunging a discharge and dismissal or an alternative mechanism to G.S. 15A-146. In support of the former position, it could be argued that the existence of specific expunction provisions precludes the use of other expunction provisions. The latter position may have greater statutory support, however. Generally, North Carolina’s relief statutes are cumulative; a person may obtain relief under any statute under which he or she qualifies. Although many of the statutes bar relief if a person has already obtained relief under another statute, none state that the availability of relief under one statute is a bar to relief under another statute. When G.S. 15A-146 was first enacted, it contained such an exclusion. It allowed relief “[e]xcept as otherwise provided in G.S. 90-96,” the statute on expunction of a discharge and dismissal of a drug offense. S.L. 1979-61 (H 44). The General Assembly subsequently broadened G.S. 15A-146 to eliminate that exclusion as well as other limitations, such as the requirement that the proceedings must have occurred before a person turned 18 and the disqualification for prior misdemeanor convictions. S.L. 1985-636 (H 997); S.L. 1991-326 (S 744). The General Assembly also amended G.S. 15A-146(d) to specify a fee of $175 for a petition under G.S. 15A-146 to expunge a conditional discharge. S.L. 2014-119 (H 369). The fee applies to all conditional discharges, suggesting the availability of an expunction for such dismissals under G.S. 15A-146.

Some dispositions may not be called dismissals but, because they terminate the case without a conviction, they may be eligible for expunction under G.S. 15A-146 if the defendant meets the requirements of that statute. Thus, a finding of “no true bill” by a grand jury—that is, a decision by a grand jury not to indict a defendant—terminates the case unless the prosecutor reindicts soon thereafter for a lesser offense. See G.S. 15A-629 (setting time limit). A case is likewise terminated by a finding of “no probable cause” by a magistrate following arrest or by a district court judge at a probable cause hearing. G.S. 15A-146 imposes no waiting period for petitioning to expunge a dismissal in these or other circumstances.

Another disposition that could be considered a dismissal involves conviction of a lesser offense than the one charged. For example, suppose the defendant is initially charged with a felony and pleads guilty to a lesser misdemeanor offense. Conviction of the lesser offense terminates the greater charge and replaces it with the lesser charge. In State v. Lebedev, ___ N.C. App. ___, 895 S.E.2d 455 (2023), however, the Court of Appeals construed the term “dismissal” in G.S. 15A-146 as requiring an express dismissal and held that the defendant was not eligible to expunge a greater charge under G.S. 15A-146 where he was found guilty of a lesser charge and neither the court nor the prosecutor expressly dismissed the greater charge. A defendant still may be able to obtain an expunction of the greater charge if the court or prosecutor expressly dismisses that charge. See infra Expunctions of Dismissals and Similar Dispositions: Dismissal or Finding of Not Guilty of Misdemeanors, Felonies, and Certain Infractions.

A type of determination that is called a dismissal but does not terminate the proceedings is a dismissal with leave. It is authorized in narrow circumstances—that is, when a defendant fails to appear in court on criminal charges or the defendant has not yet completed a deferred prosecution. See G.S. 15A-932. A dismissal with leave removes the case from the court’s docket, but the case remains pending and may be reactivated by the prosecutor by giving notice to the court. Because a dismissal with leave does not terminate the proceedings, this guide’s view is that it is not a type of dismissal that is eligible for an expunction.

A prayer for judgment continued is not a dismissal and is not subject to expunction on that basis. It may be subject to expunction on the same grounds as expunction of a conviction, however. See infra Appendixes: Frequently Asked Questions (Prayer for Judgment Continued (PJC)).