RECORDS EXPUNGEMENT: COM. V. HOLLOWAY (COA 5/25/2007)

COM. V. HOLLOWAY
CRIMINAL:  Expungement
2005-CA-000829
PUBLISHED: REVERSING;
JUDGES: STUMBO PRESIDING: KNOPF AND ABRAMSON (RESULT ONLY) CONCURS
DATE RENDERED: 5/25/2007; 
COUNTY: FAYETTE

TC’s order granting expungement in District Court reversed because case was not dismissed with prejudice as required by statute. Here, Holloway was charged with a felony in 1996. The case was sent to the grand jury but later returned to District Court with No True Bill. Obviously sympathetic with Holloway’s plight, TC granted the motion for expungement even though the case was only dismissed without prejudice. The Commonwealth appealed the expungement order, and the CA reversed. CA did suggest that Holloway could obtain some relief via KRS 17.142, which permits application for the segregation of records when all charges have been dismissed, without the requirement of a dismissal with prejudice.

Note: This editor has been confronted with this situation concerning expungement on numerous occasions. If a District Court judge is sympathetic to a petitioner, the judge simply needs to dismiss the case with prejudice and then grant the expungement order at the conclusion of the 60 day waiting period. Of course, once the case is dismissed with prejudice, the Commonwealth can never bring the action again.

Digested by Scott C. Byrd @ http://www.olginandbyrd.com

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