Can a retail fraud 21 years ago that was expunged be brought back up and used with new charge of retail fraud?
4 attorney answers
It mostly depends on what you mean by "expunged": was there a conviction and then a subsequent motion to expunge it from your record five years later, was it a plea under the Holmes Youthful Trainee Act ("HYTA"), was it a "deferred sentenced", was it a "plea under advisement", was it a juvenile court "consent calendar" case . . . ? Any one of these can have a different outcome, and if it IS used against you, it could be used to up the charge from Retail Fraud 3rd Degree to Retail Fraud Second Degree (or a Retail Fraud 2nd Degree to a Retail Fraud 1st Degree, depending on the value of the merchandise you attempted to steal).
If all you took was a shirt, most likely the prosecutor will charge it as a Retail Fraud 3rd (even if you have a prior from 21 years ago). This is especially likely if it is a city attorney, who probably won't have any idea about what record you may have had more than two decades ago.
The good news is that a judge is probably not going to care about something that happened 21 years ago. Also, these are pretty minor offenses. I typically see 6 to 12 months probation (depending on the judge) with a mandatory "why stealing is bad" class, restitution and fines, and a ban on visiting the victim store ever again.
However, you should still hire an attorney because there may be factors of which you are not aware that could either make the case worse OR that a good attorney might be able to use to help you avoid a conviction. Since retail fraud is a crime of "moral turpitude", a conviction for retail fraud can be a bar to many kinds of jobs in the future. If your attorney can work a deal to something like a "disorderly person" charge, you might be better off in the long run and the cost of an attorney will pay for itself many times over.
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It really depends on the specific fact of how the old case was handled. Contact a criminal defense attorney for a case specific evaluation.
This is general information and not legal advice. This communication does not create a lawyer-client relationship.
Probably not directly for charging purposes, but possibly for sentencing purposes if the court becomes aware of the earlier charged, whether expunged or not. However, more information is needed regarding both incidents. Therefore, you need to retain experienced criminal defense counsel for a full legal and factual analysis of your particular situation and a strategy for going forward.
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It certainly can come back to haunt you. Depending on how it was handled, you might still be able to get a special deal, or not. The best advice is to hire skilled local defense counsel who can best plan your defense.
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