If your conviction was vacated by the trial court or reversed by an appellate court, the record may be eligible for restriction (expungement). See O.C.G.A. 35-3-37(j)(2).
- You were convicted of an offense not punishable by death;
- The conviction was vacated by the trial court or reversed by final decision of an appellate court;
- The prosecution did not retry the case within a two (2) year period after the order vacating/reversing the conviction became final; and
- The record is causing you harm. For instance, you are unable to get a job and/or housing because of the record. Harm may be demonstrated through your testimony in court or by providing denial letters from employers or housing providers.
- File an action (motion/petition) in the superior court in the county where the record is located for an order to restrict the record.
- If the vacated/reversed conviction was handled in superior court see “How to Restrict (Expunge) Charge(s) Handled in Superior Court (Usually Felonies)” on page 101.
- If the vacated/reversed conviction was not handled in superior court, see “How to Restrict (Expunge) Charge(s) NOT Handled in Superior Court (Usually Misdemeanors)” on page 103.
- Deliver a copy of the action to the prosecuting attorney’s office.
- If requested, a hearing will be held within ninety (90) days of filing.
- The court will hear evidence to determine if restriction is appropriate. The court will consider the reason the conviction was reversed or vacated, why the prosecution did not retry the case within the two (2) year period, and whether the public has an interest in the record being available.
- If the court orders the records restricted, you can submit a written request for restriction to the jail/detention center and the law requires the records be restricted within thirty (30) days of your request. See “How to Restrict (Expunge) Records Kept by the Jail” on page 110.
- Certified copy of the final disposition from the clerk of court.
- Order Vacating/Reversing Conviction.
- Motion/Petition to Restrict. (Sample documents are included with these instructions)
Posted in: Restriction