2013 -- H 5178 SUBSTITUTE A

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LC00479/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO CRIMINAL PROCEDURE -- SENTENCE AND EXECUTION

     Introduced By: Representatives Lombardi, Lima, DeSimone, Slater, and O'Brien

     Date Introduced: January 29, 2013

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 12-1-12 and 12-1-12.1 of the General Laws in Chapter 12-1

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entitled "Identification and Apprehension of Criminals" are hereby amended to read as follows:

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     12-1-12. Destruction or sealing of records of persons acquitted or otherwise

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exonerated. -- (a) Any fingerprint, photograph, physical measurements, or other record of

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identification, heretofore or hereafter taken by or under the direction of the attorney general, the

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superintendent of state police, the member or members of the police department of any city or

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town or any other officer authorized by this chapter to take them, of a person under arrest, prior to

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the final conviction of the person for the offense then charged, shall be destroyed by all offices or

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departments having the custody or possession within sixty (60) days after there has been an

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acquittal, dismissal, no true bill, no information, dismissal pursuant to subsection 12-19-19 (c), or

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the person has been otherwise exonerated from the offense with which he or she is charged, and

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the clerk of court where the exoneration has taken place shall, consistent with section 12-1-12.1,

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place under seal all records of the person in the case including all records of the division of

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criminal identification established by section 12-1-4; provided, that the person shall not have been

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previously convicted of any felony offense. Any person who shall violate any provision of this

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section shall be fined not exceeding one hundred dollars ($100).

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      (b) requirements of this section shall also apply to persons detained by police, but not

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arrested or charged with an offense, or to persons against whom charges have been filed by the

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court, and the period of such filing has expired.

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      (c) Notwithstanding any other provision of this section, any person who has been

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charged with a complaint for a crime involving domestic violence where the complaint was filed

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upon a plea of not guilty, guilty or nolo contendere pursuant to section 12-10-12, must wait a

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period of three (3) years from the date of filing before the records associated with the charge can

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be expunged, sealed or otherwise destroyed.

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     12-1-12.1. Motion for sealing of records of persons acquitted or otherwise

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exonerated. -- (a) Any person who is acquitted or otherwise exonerated of all counts in a

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criminal case, including, but not limited to, dismissal or filing of a no true bill or no information,

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or a dismissal pursuant to subsection 12-19-19 (c), may file a motion for the sealing of his or her

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court records in the case, provided, that no person who has been convicted of a felony shall have

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his or her court records sealed pursuant to this section.

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      (b) Any person filing a motion for sealing his or her court records pursuant to this

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section shall give notice of the hearing date set by the court to the department of the attorney

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general and the police department which originally brought the charge against the person at least

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ten (10) days prior to the hearing.

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      (c) If the court, after the hearing at which all relevant testimony and information shall be

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considered, finds that the person is entitled to the sealing of the records, it shall order the sealing

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of the court records of the person in that case.

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      (d) The clerk of the court shall, within forty-five (45) days of the order of the court

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granting the motion, place under seal the court records in the case in which the acquittal,

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dismissal, no true bill, no information or other exoneration has been entered.

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      (e) Notwithstanding any other provision of this section, in all cases involving a filing

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subsequent to a plea of not guilty, guilty or nolo contendere to a charge of a crime involving

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domestic violence, the court having jurisdiction over the case shall retain the records of the case

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for a period of three (3) years from the date of filing. The records shall not be expunged, sealed,

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or otherwise destroyed for a period of three (3) years from the date of the filing.

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     SECTION 2. Section 12-19-19 of the General Laws in Chapter 12-19 entitled "Sentence

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and Execution" is hereby amended to read as follows:

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     12-19-19. Sentencing on plea of guilty or nolo contendere -- Deferment of sentence. -

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- (a) Whenever any person is arraigned before the superior court and pleads guilty or nolo

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contendere, he or she may be at any time sentenced by the court; provided, that if at any time the

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court formally defers sentencing then the person and the attorney general shall enter into a written

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deferral agreement to be filed with the clerk of the court. When a court formally defers sentence,

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the court may only impose sentence within five (5) years from and after the date of the written

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deferral agreement, unless during the five (5) year period, the person shall be declared to have

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violated the terms and conditions of the deferment pursuant to subsection (b) of this section in

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which event the court may impose sentence.

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      (b) It shall be an express condition of any deferment of sentence in accordance with this

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section that the person agreeing to said deferment of sentence shall at all times during the period

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of deferment keep the peace and be of good behavior. A violation of this express condition or any

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other condition set forth by either the court or the written deferral agreement shall violate the

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terms and conditions of the deferment of sentence and the court may impose sentence. The

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determination of whether a violation has occurred shall be made by the court in accordance with

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procedures relating to violation of probation sections 12-19-2 and 12-19-14.

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      (c) If a person, after the completion of the five (5) year deferment period is determined

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by the court, after hearing thereupon, to have complied with all of the terms and conditions of the

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written deferral agreement, including, but not limited to, the payment in full of any court ordered

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fines, fees, costs, assessments, and restitution to victims of crime, then the matter shall be

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dismissed then the person shall be exonerated of the charges for which sentence was deferred and

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records relating to the criminal complaint, information or indictment shall be sealed pursuant to

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the provision of section 12-1-12. Further, if any record of the criminal complaint, information or

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indictment has been entered into a docket or alphabetical index, whether in writing or electronic

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information storage or other data compilation system, all references to the identity of the person

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charged by the complaint shall be sealed.

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     SECTION 3. This act shall take effect upon passage, the provisions shall be given

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retroactive and prospective effect, and shall apply to all matters pending upon the effective date

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of this act.

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LC00479/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO CRIMINAL PROCEDURE -- SENTENCE AND EXECUTION

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     This act would address the retroactive of the deferred sentence expungement process.

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     This act would take effect upon passage, the provisions would be given retroactive and

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prospective effect and would apply to all matters pending upon the effective date of this act.

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LC00479/SUB A

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