DATE OF JUDGMENT: 06/18/2013.
COURT FROM WHICH APPEALED: TALLAHATCHIE COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. JAMES MCCLURE, III.
FOR APPELLANT: TOMMY WAYNE DEFER.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL.
WALLER, C.J., AND PIERCE, J., CONCUR. RANDOLPH, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND COLEMAN, JJ. LAMAR, J., NOT PARTICIPATING. RANDOLPH, PRESIDING JUSTICE, SPECIALLY CONCURRING, KITCHENS, JUSTICE, DISSENTING, DICKINSON, P.J., CHANDLER AND COLEMAN, JJ., JOIN THIS OPINION.
NATURE OF THE CASE: CIVIL - OTHER
¶1. This Court is presented with the following issue: whether a convicted felon is entitled to an expungement of her conviction after receiving an executive pardon. Because there is no statutory authority in Mississippi for the courts to order an expungement under these circumstances, we affirm the trial court's order denying the request for expungement in today's case.
¶2. On March 10, 2000, the Tallahatchie County Grand Jury indicted Rebecca Hentz for one count of conspiracy to manufacture methamphetamine and two counts of attempt to manufacture methamphetamine. On September 25, 2000, Hentz pleaded guilty to one count of attempt to manufacture methamphetamine. The Circuit Court of the First Judicial District of Tallahatchie County sentenced Hentz to thirty years, suspended, unsupervised probation, and a $5,000 fine. The trial court remanded to the file the other counts in Hentz's indictment.
¶3. On January 10, 2012, Governor Haley Barbour granted Hentz a " full, complete, and unconditional pardon" for the attempt-to-manufacture-methamphetamine conviction. Later in 2012, on October 2, Hentz filed a Motion to Expunge Record, claiming that the records of her conviction should be expunged because she had received a pardon. On May 20, 2013, Hentz filed an Amended Motion to Expunge Record, which included additional support for the contention that the records of her conviction should be expunged. After hearing oral argument from Hentz's counsel, the trial court denied her motion. Hentz then timely appealed to this Court.
¶4. Hentz raises one issue on appeal: whether a convicted felon may have her criminal record expunged after receiving an executive pardon.
¶5. Expungement is statutory in nature, and the Mississippi Legislature has " authorized expungement of criminal offender records in limited cases . . . ." Caldwell v. State, 564 So.2d 1371, 1372 (Miss. 1990). As an example, Mississippi Code Section 99-19-71 permits criminal defendants to apply for expungement in a number of circumstances: (1) persons convicted of a misdemeanor as a first offender; (2) persons convicted of certain felonies as a first offender;  (3) and persons in " any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges
were dropped or there was no disposition of such case." See also Miss. Code Ann. § 99-15-59 (Rev. 2007) (expungment of misdemeanor charges); Miss. Code Ann. § 99-15-57(2) (Rev. 2007) (" Upon petition therefor, the court shall expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of such case." ); Miss. Code Ann. § 99-23-23 (Rev. 2007) (expungement upon completion of drug court program).
¶6. Hentz concedes that there is no statutory provision for expungement in cases of a pardon. Rather than claiming she is statutorily entitled to have her criminal record expunged, Hentz claims that the nature of a pardon itself should permit the expungement. In support of this proposition, Hentz quotes Jones v. Board of Registrars, 56 Miss. 766 (1879). In Jones, a convicted felon received a presidential pardon for federal embezzlement charges and subsequently was denied voter registration. Id. at 766. Finding that Jones might register to vote after the pardon, this Court stated:
If granted after conviction, [the pardon] removes the penalties and disabilities, and restores him [the convict] to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. . . . A pardon is an act of grace by which an offender is released from the consequences of his offense, so far as such release is practicable and within the control of the pardoning power, or of officers under its direction. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. A pardon of treason or felony, even after an attainder, so far clears the party from the infamy, and all other consequences thereof, that he may have an action against any who shall afterwards call him traitor or felon; for the pardon makes him, as it were, a new man.
Id. at 768 (internal citations and quotations omitted). Although Jones discusses the aftereffects of pardon, it does not specifically address expungement. See id.
¶7. Hentz also cites Ex parte Crisler, 159 Miss. 247, 132 So. 103 (1931), in support of her contention that the nature of a pardon should permit the trial court to expunge her criminal record. While Crisler does state that a " full pardon absolves the party from all the legal consequences of his crime and his conviction, direct and collateral; including the punishment, whether of imprisonment pecuniary penalty, or whatever else the law has provided; " the opinion expressly limits itself to cases of attorney disbarment. Id. at 103-04 (quoting 8 Bishop's Criminal Law § 916) (" What we here hold, ...