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If told by judge complete probation and will be dismissed, and you do then why is it still on adult record when 17 when happened

Houston, TX |

My husband was arrested at 17 with 4 other boys for possession of 1 joint. Car was not his and joint was not found on him. Had bad atty who told him to plead to felony possession at the time. Completed probation and was suppose to be dismissed but on his adult record. No record of hearing to adjuicate as adult and copy of charge from adult record at court house but when ask to see file, told sealed juvenile. Told them it can't be both ways. Tried to take my copy I paid for of records showing 10 yrs after probation over a dismissal was placed in file. Husband went back to same atty 5 yrs ago to have expunged but denied, however said sealed but still showing. If not adjudicated as adult then why is on adult record and is it to late to do anything. Should be sealed? Can you help?

Attorney Answers 3

Posted

So many things wrong with this. First, if he was 17, he was not a juvenile and he was not in juvenile court. So all of that juvenile stuff is a non-issue. Second, possession of one joint is not a felony. So either this case is a misdemeanor or it wasn't about one joint.

Third, if he successfully completed deferred probation, he is entitled to have the record sealed but not expunged. I can't tell if you're saying the original attorney did that or not. But if he hasn't had that done, he has the right to. When a record is sealed it means that only the government can see it. Finally, if he doesn't have the record sealed, it will always be viewable by the public regardless of whether he was adjudicated.

Macy Jaggers's answer to a legal question on Avvo does not establish an attorney-client relationship. Ms. Jaggers offers everyone a free consultation to discuss their case. Feel free to call her office at 214-365-9800 to make an appointment (phones are answered 24 hours) or visit her website at www.macyjaggers.com for more information about her services and recent victories.

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Posted

Because you have not gotten an explanation from the original lawyer that makes clear what has gone on, I am going to suggest that you consult a different attorney in the Houston area.

Were you to be in my part of the state and end up consulting with me about this, I would want to review all the paperwork records and carefully interview your husband so as to trace out exactly what happened.

A starting point in any criminal matter in Texas is that adult for criminal law purposes in our state courts begins at age 17. So, any arrest from a defendant's 17th birthday on is going to be an adult arrest. If a person is arrested for an offense occurring from his or her 17th birthday onward, juvenile is simply not an issue.

If a case is in the adult system and gets filed in the trial court, then there are only a few ways it can end:

1. Dismissed before any plea hearing or trial.

2. A trial followed by a finding of not guilty.

3. A trial followed by a verdict of guilty - which often ends up in one of Texas two kinds of probation if its a possession of a joint. - the other option would be jail or prison depending on the amount of weed involved.

4. A plea of guilty or no contest with a jail or prison sentence, or one of the two types of probation.

Now, here is where alot of confusion comes in. There are two types of probation. I wrote a "guide" about this here on avvo, and you might want to read that. But, basically, there's "regular" probation. That's where a person gets convicted but still gets a suspended sentence. If the defendant completes it successfully, the court can...but does not have to...set aside the conviction and dismiss the case. However, expunction is not possible for this type of disposition of a charge. And, neither is it possible to "seal" a record of this kind of probation.

The other kind of probation is called "deferred adjudication". That's where the judge puts a person on probation and defers the decision of whether the person is guilty. If the person is successful on probation, the judge never finds the person guilty and at the end dismisses the case. Most of the time a drug case that ends this way with a successful deferred probation period can be "sealed". Still, it can't be expunged.

"Sealed", BTW, means that the defendant asks in a separate lawsuit - filed by the defendant - for the court to issue what is called an "order of non-disclosure". The court does not have to grant that request, but usually does.

Hope this helps.

For more, you really need to consult a reputable criminal defense lawyer in your part of the state.

Answers on Avvo are for general information purposes only and should not be relied upon as legal advice. No attorney / client relationship is created by providing this answer. For specific advice about your situation, you should consult a competent attorney of your choosing.

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1 lawyer agrees

Posted

What the other attorneys have told you is accurate, but here's one possibility that might help to reconcile some of the inconsistencies Ms. Jaggers noted. Is it possible that he was initially placed on uvenile probation for another offense (which would have happened when he was 16 or younger, and could have been for a felony drug offense totally unrelated to this one joint incident), and then, while he was still on juvenile probation (which if he was only 17 might very well have been the case), he got arrested for this adult misdemeanor marihuana charge that he got deferred adjudication probation for? The adult marihuana arrest would have constituted a violation of his juvenile probation, and so it's possible that he had both felony consequences on a juvenile level as well as an adult misdemeanor deferred adjudication probation, all arising from one arrest. If that's the case, he'd have to have to both have his juvenile record sealed and have the adult records nondisclosed, in two separate proceedings.

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