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Polk v. State

Supreme Court of Mississippi

October 9, 2014

ZACHARY POLK
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT: 03/26/2013.

As Corrected October 15, 2014.

COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JAMES T. KITCHENS, JR.

FOR APPELLANT: JEAN SHERMAN COOPER, RICHARD D. MITCHELL.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS, JOHN R. HENRY, JR.

BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ. WALLER, C.J., RANDOLPH, P.J., LAMAR AND KING, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND COLEMAN, JJ.

OPINION

NATURE OF THE CASE: CIVIL - OTHER

PIERCE, JUSTICE

¶1. Zachary Polk was indicted on three counts in Oktibbeha County, Mississippi, for the sale of methylenedioxy methamphetamine

Page 968

(MDMA), hydrocodone, and alprazolam, in violation of Mississippi Code Section 41-29-139(a)(1). Miss. Code Ann. § 41-29-139(a)(1) (Rev. 2013). Polk entered a plea of guilty as to Count I for the sale of MDMA, and he was sentenced to serve ten years in the Mississippi Department of Corrections and ordered to pay a $5,000 fine. The district attorney " retired to files" Count II and Count III, based upon Polk entering a plea of guilty as to Count I. In January 2012, Polk received a " full, complete, and unconditional pardon" from Governor Haley Barbour.

¶2. Thereafter, Polk filed a petition for expungement in the Circuit Court of Oktibbeha County, seeking to have all records expunged relating to his earlier arrest and indictment. Polk argued that Count I of the indictment, to which he pleaded guilty, should be expunged based on Ex Parte Crisler, 159 Miss. 247, 132 So. 103 (1931). Polk also argued that Counts II and III, which were " retired to files," should be expunged pursuant to Mississippi Code Section 99-15-57(2).

¶3. The trial court determined that it was without statutory or constitutional authority to expunge Polk's record as to Count I. Regarding Counts II and III, the trial court also found that it was without statutory authority to expunge the charges. Polk appeals to this Court.

STANDARD OF REVIEW

¶4. This Court applies a de novo standard of review when questions of law are to be considered on appeal. Brown v. State, 731 So.2d 595, 598 (Miss. 1999).

DISCUSSION

¶5. Polk asks this Court to hold that, since his pardon " obliterates his previous conviction," his record of conviction as to Count I should be expunged. Polk further asks this Court to hold that the trial court had statutory authority to expunge his criminal record(s) as to Counts II and III, which were retired to files. As will be explained, we cannot expunge his records as to Count I. As to Polk's latter request, however, we find that Polk's criminal record(s) with regard to Counts II and III, which were remanded to file, are eligible for expungement pursuant to Mississippi Code Section 99-15-26(5).

¶6. Criminal records in Mississippi are kept pursuant to Mississippi Code Section 45-21-1. This Court implicitly held in Caldwell v. State, 564 So.2d 1371, 1372-73 (Miss. 1990) (upon rejecting claim that the circuit court has inherent power to expunge criminal records) that expungement of such records is an act of legislative grace. No common law right to the expungement of criminal records exists. In re Expungement Application of G.P.B., 436 N.J.Super. 48, 50, 91 A.3d 648 (App.Div. 2014). And there is no constitutional right for such relief in either our state constitution or our federal constitution. See, e.g., Sealed Appellant v. Sealed Appellee, 130 F.3d 695, 699 (5th Cir. 1997) (" There is no [federal] constitutional basis for a " right to expungement." ) (internal quotation marks and citation omitted). A number of statutes in the Mississippi Code permit criminal defendants to apply for expungement, but none exists for expungement in the case of a pardon.

¶7. Recognizing this, Polk relies heavily on Ex Parte Crisler, 132 So. 103, 159 Miss. 247 (Miss. 1931), for the proposition that, because he received a full, complete and unconditional pardon, he is entitled to an expungement of the record for the offenses for which he was pardoned. ...


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