77-40-107 - Petition for expungement -- Prosecutorial responsibility -- Hearing -- Standard of proof -- Exception.
77-40-107. Petition for expungement -- Prosecutorial responsibility -- Hearing --Standard of proof -- Exception.
(1) The petitioner shall file a petition for expungement and the certificate of eligibility inthe court specified in Section 77-40-103 and deliver a copy of the petition and certificate to theprosecuting agency.
(2) (a) Upon receipt of a petition for expungement of a conviction, the prosecutingattorney shall provide notice of the expungement request by first-class mail to the victim at themost recent address of record on file.
(b) The notice shall include a copy of the petition, certificate of eligibility, statutes andrules applicable to the petition, state that the victim has a right to object to the expungement, andprovide instructions for registering an objection with the court.
(3) The prosecuting attorney and the victim, if applicable, may respond to the petition byfiling a recommendation or objection with the court within 30 days after receipt of the petition.
(4) (a) The court may request a written response to the petition from the Division ofAdult Probation and Parole within the Department of Corrections.
(b) If requested, the response prepared by Adult Probation and Parole shall include:
(i) the reasons probation was terminated; and
(ii) certification that the petitioner has completed all requirements of sentencing andprobation or parole.
(c) A copy of the response shall be provided to the petitioner and the prosecutingattorney.
(5) The petitioner may respond in writing to any objections filed by the prosecutor or thevictim and the response prepared by Adult Probation and Parole within 15 days after receipt.
(6) (a) If the court receives an objection concerning the petition from any party, the courtshall set a date for a hearing and notify the petitioner, the prosecuting attorney, and the victim ofthe date set for the hearing.
(b) The petitioner, the prosecuting attorney, the victim, and any other person who hasrelevant information about the petitioner may testify at the hearing.
(c) The court shall review the petition, the certificate of eligibility, and any writtenresponses submitted regarding the petition.
(7) If no objection is received within 60 days from the date the petition for expungementwas filed with the court, the expungement may be granted without a hearing.
(8) The court shall issue an order of expungement if it finds by clear and convincingevidence that:
(a) the petition and certificate of eligibility are sufficient;
(b) the statutory requirements have been met; and
(c) it is not contrary to the interests of the public to grant the expungement.
(9) A court may not expunge a conviction of an offense for which a certificate ofeligibility may not be or should not have been issued under Section 77-40-104 or 77-40-105.
Enacted by Chapter 283, 2010 General Session