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Do I have to wait the full 3 years to file for expungement if I was given 1yr diverted for 3 and never been in trouble before?

Louisville, KY |

I didn't physically hurt anyone and it wasn't a drug charge or involving a child or fraud. I am on Felony Diversion for 1yr diverted for 3yrs of probation on administrative probation. All my probation is paid up well into the future, and I do not have a record other than this one event. Do they consider the time off good behavior while awaiting trial (5 months) if you want out of this early? Finding a job has been horrifying because everyone assumes and doesn't understand the program or sees it as just as bad. What is the fastest I could file for dismisal in this situation. I'm only 3 months into 3yrs and I need some hope. One lawyer told me I had to complete half of it, but I didn't know if you could get it done any faster?

Attorney Answers 3


You need to consult with a criminal defense attorney to review your Circuit Court file. If you have only been on felony pretrial diversion for 3 months, it is highly unlikely a motion to terminate a one year sentence diverted for 3 years will be successful. Consult with counsel as to the best time to file the motion. If the prosecutor agrees it will be more likely the judge will grant the early motion.

I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..

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I really doubt that you can terminate after 3 months, however it is worth at least a phone call to the lawyer who represented you to see if he or she has had experience with attempting early termination.

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I just looked into early termination of felony probation for a client (not diversion, but it is similar). (Please see the statute below). However, you asked about expungement, which is different. You should consult with an attorney about the charge to see if you will be eligible for expungement, but typically, you would have to wait out the 3 years until the charge is officially dismissed and then hire an attorney to file a petition with the circuit court for the voiding or sealing of your record or for the expungement of the dismissal.

439.552 Early termination of probation -- Administrative regulations.
(1) The department shall promulgate administrative regulations in consultation with the Supreme Court to establish procedures to:
(a) Recommend to the court the early termination of probation for a supervised individual who has:
1. Fulfilled the terms of his or her case plan;
2. No new arrests;
3. Demonstrated a reduction in criminal risk factors upon reassessment; and
4. Fulfilled all restitution and substantially fulfilled all other financial obligations to the court; and
(b) Review the compliance of the supervised individual on probation with the requirements in paragraph (a) of this subsection. This review for compliance shall occur at the same time as the regular reassessment pursuant to KRS 439.3101 and 439.3104.
(2) The department shall petition the court with a request for early termination if the supervised individual on probation has:
(a) Complied with the requirements in subsection (1)(a) of this section;
(b) Completed at least eighteen (18) months of his or her term of supervision; and
(c) Not violated the terms of his or her supervision in the last twelve (12) months.
(3) The department may establish by administrative regulation conditions for overriding the recommendation of early termination of probation.
Effective: June 8, 2011
History: Created 2011 Ky. Acts ch. 2, sec. 57, effective June 8, 2011.

Kristin M. Russell is an attorney licensed to practice law in the Commonwealth of Kentucky. Per Avvo guidelines, these answers are for informational purposes only and do not constitute legal advice. This response does not create an attorney/client relationship.

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