Harold Z. Eubanks v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01922-COA
HAROLD Z. EUBANKS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/19/2009
HON. PRENTISS GREENE HARRELL
PEARL RIVER COUNTY CIRCUIT COURT
LEE TURNER
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CIVIL - OTHER
RENEWED MOTION TO EXPUNGE
DENIED
AFFIRMED - 02/08/2011
BEFORE LEE, P.J., ROBERTS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
Harold Eubanks pled guilty in the Circuit Court of Pearl River County to one count
of felony Driving Under the Influence (DUI) in 1993.
Eubanks received a ten-year
suspended sentence and was placed on probation for five years. In May 1999, Eubanks filed
a petition for expungement, which was granted on June 5, 2009. The order of expungement
was later vacated by the circuit court on June 30, 2009. Aggrieved, Eubanks now appeals.
Finding no error, we affirm the circuit court’s denial of Eubanks’s motion to expunge.
FACTS
¶2.
On September 11, 1992, Eubanks was indicted in Pearl River County on two counts
of Felony DUI, one count resulting in the death of Shirley Jo Burge, and the other count
involving injuries to C.J. Sanders. On June 21, 1993, Eubanks pled guilty to one count of
Felony DUI, and was sentenced to ten years in the custody of the Mississippi Department of
Corrections (MDOC). The circuit court suspended Eubanks’s jail sentence and placed him
on supervised probation for a period of five years. In addition, Eubanks was ordered to pay
approximately $14,000 in total restitution and court costs. In 1998, Eubanks successfully
completed his sentence and received a discharge order from the circuit court.
¶3.
On May 18, 2009, Eubanks filed a motion to expunge his criminal conviction, which
the circuit court granted on June 5, 2009. On June 17, 2009, the Mississippi Department of
Public Safety filed a motion to vacate Eubanks’s order of expungement, claiming that
Eubanks is ineligible for relief under Mississippi Code Annotated section 99-15-26 (Supp.
2010), since he was convicted of a DUI pursuant to the Mississippi Implied Consent Law.
On June 30, 2009, the circuit court vacated the order of expungement.
¶4.
On September 10, 2009, Eubanks filed a renewed motion to expunge, which was
subsequently denied on September 25, 2009, and the circuit court issued an order on the
matter on November 19, 2009. Eubanks now appeals to this Court, urging the Court to adopt
“equitable expungement.”
STANDARD OF REVIEW
¶5.
On appeal, this Court applies a de novo standard of review when deciding questions
of law. Payne v. State, 22 So. 3d 367, 368 (¶4) (Miss. Ct. App. 2009).
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DISCUSSION
¶6.
Eubanks argues that the circuit court erred in failing to utilize its “inherent equitable
powers” and adopt “equitable expungement,” which he claims would allow the circuit court
to expunge all public records relating to his DUI conviction. Eubanks acknowledges that no
statutory basis exists for his requested relief; instead, he employs a policy argument in his
brief, urging this Court to reexamine the issue of equitable expungement. Eubanks submits
that adoption of the balancing of the equities test, utilized by a majority of federal courts as
well as numerous state courts, in granting expungements, would clearly favor him. He asks
this Court to create a judicial power of expungement in order to expunge his criminal record,
submitting that the public record of his conviction restricts him from sitting for the Alabama
Professional Engineers Exam, which consequently prevents him from obtaining full
employment as a professional engineer.
¶7.
Despite Eubanks’s plea for this Court to adopt a balancing test or create a judicial
power of expungement, we must follow the applicable statutes and precedent in the case
before us; thus, we turn to an application of this law to these facts. Mississippi Code
Annotated section 99-15-26 (Supp. 2010) provides:
(1) In all criminal cases, felony and misdemeanor, other than crimes against the
person or a violation of Section 97-11-31, the circuit or county court shall be
empowered, upon the entry of a plea of guilty by a criminal defendant, to
withhold acceptance of the plea and sentence thereon pending successful
completion of such conditions as may be imposed by the court pursuant to
subsection (2) of this section. In all misdemeanor criminal cases, other than
crimes against the person, the justice or municipal court shall be empowered,
upon the entry of a plea of guilty by a criminal defendant, to withhold
acceptance of the plea and sentence thereon pending successful completion of
such conditions as may be imposed by the court pursuant to subsection (2) of
this section. No person having previously qualified under the provisions of this
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section or having ever been convicted of a felony shall be eligible to qualify for
release in accordance with this section. A person shall not be eligible to qualify
for release in accordance with this section if such person has been charged (a)
with an offense pertaining to the sale, barter, transfer, manufacture, distribution
or dispensing of a controlled substance, or the possession with intent to sell,
barter, transfer, manufacture, distribute or dispense a controlled substance, as
provided in Section 41-29-139(a)(1), except for a charge under said provision
when the controlled substance involved is one (1) ounce or less of marijuana;
(b) with an offense pertaining to the possession of one (1) kilogram or more of
marijuana as provided in Section 41-29-139(c)(2)(F) and (G); or (c) with an
offense under the Mississippi Implied Consent Law.1
(2)(a) Conditions which the circuit, county, justice or municipal court may
impose under subsection (1) of this section shall consist of:
(i) Reasonable restitution to the victim of the crime.
(ii) Performance of not more than nine hundred sixty (960)
hours of public service work approved by the court.
(iii) Payment of a fine not to exceed the statutory limit.
(iv) Successful completion of drug, alcohol, psychological or
psychiatric treatment or any combination thereof if the court
deems such treatment necessary.
(v) The circuit or county court, in its discretion, may require the
1
Mississippi’s Implied Consent law is codified at Mississippi Code Annotated
section 63-11-5 (Rev. 2004), and states, in pertinent part, that:
(1) Any person who operates a motor vehicle upon the public
highways, public roads and streets of this state shall be deemed to have
given his consent, subject to the provisions of this chapter, to a
chemical test or tests of his breath for the purpose of determining
alcohol concentration. A person shall give his consent to a chemical
test or tests of his breath, blood or urine for the purpose of determining
the presence in his body of any other substance which would impair a
person's ability to operate a motor vehicle.
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defendant to remain in the program subject to good behavior for
a period of time not to exceed five (5) years. The justice or
municipal court, in its discretion, may require the defendant to
remain in the program subject to good behavior for a period of
time not to exceed two (2) years.
(b) Conditions which the circuit or county court may impose under subsection
(1) of this section also include successful completion of a regimented inmate
discipline program.
(3) When the court has imposed upon the defendant the conditions set out in
this section, the court shall release the bail bond, if any.
(4) Upon successful completion of the court-imposed conditions permitted by
subsection (2) of this section, the court shall direct that the cause be dismissed
and the case be closed.
(5) 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.
(Emphasis added). The Mississippi Supreme Court has held that a circuit court lacks the
inherent power to order the expungement of criminal records. Caldwell v. State, 564 So. 2d
1371, 1373 (Miss. 1990); Turner v. State, 876 So. 2d 1056, 1059 (¶11) (Miss. Ct. App.
2004). However, section 99-15-26 grants a circuit or county court the power to expunge a
felony conviction pursuant to a guilty plea under certain conditions. Turner, 876 So. 2d at
1058 (¶7); Caldwell, 564 So. 2d at 1373.
¶8.
The record reflects that Eubanks pled guilty to one count of felony DUI, a conviction
which falls within the purview of the Mississippi Implied Consent Law. As previously
stated, section 99-15-26 expressly prohibits a person charged with an offense under the
Mississippi Implied Consent Law to be eligible for expungement. Therefore, after a careful
review of the facts presented along with the provisions of section 99-15-26, we find that the
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circuit court did not err in denying Eubanks's petition for expungement. As a result, the
circuit court judgment is affirmed.
¶9.
THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND MAXWELL, JJ., CONCUR.
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