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View Full Version : Arrested / Suspended Sentence / Dismissed = Denial


Irish Gunner
02-23-2012, 2:57 PM
Alright if you read my post last night you will realize that some of this has been put up before. I shouldn't have posted w/o all the facts, now I have them. My brother was arrested, apparently a guilty plea was entered with a suspended sentence, then after 1 yr the charges dismissed.

Because of this situation he is now denied in WA state. Attached are the results of his NICS check and the response he got from the FBI in denying his appeal. Is the FBI being nincompoops? I thought dismissed = never happened. Or is just he sentence dismissed and the plea / conviction stays.

In first case he shouldn't be denied. If the second is the case he may be denied in WA but legal elsewhere. Any comments appreciated. Just wondering if he has a leg to stand on to fight this. May need Lawyer to help obtain "court certified" documents.

Flintlock Tom
02-23-2012, 3:31 PM
I don't know how it works in WA, but, in CA you need to get the charge reduced to a misdemeanor before it's dismissed.
It looks like the record shows that he was found/pled guilty to a felony and that's all the authorities need.

Gray Peterson
02-23-2012, 3:46 PM
Alright if you read my post last night you will realize that some of this has been put up before. I shouldn't have posted w/o all the facts, now I have them. My brother was arrested, apparently a guilty plea was entered with a suspended sentence, then after 1 yr the charges dismissed.

Because of this situation he is now denied in WA state. Attached are the results of his NICS check and the response he got from the FBI in denying his appeal. Is the FBI being nincompoops? I thought dismissed = never happened. Or is just he sentence dismissed and the plea / conviction stays.

In first case he shouldn't be denied. If the second is the case he may be denied in WA but legal elsewhere. Any comments appreciated. Just wondering if he has a leg to stand on to fight this. May need Lawyer to help obtain "court certified" documents.

Was he denied purchase or a CPL? Was it a felony?

Gray Peterson
02-23-2012, 3:48 PM
Alright if you read my post last night you will realize that some of this has been put up before. I shouldn't have posted w/o all the facts, now I have them. My brother was arrested, apparently a guilty plea was entered with a suspended sentence, then after 1 yr the charges dismissed.

Because of this situation he is now denied in WA state. Attached are the results of his NICS check and the response he got from the FBI in denying his appeal. Is the FBI being nincompoops? I thought dismissed = never happened. Or is just he sentence dismissed and the plea / conviction stays.

In first case he shouldn't be denied. If the second is the case he may be denied in WA but legal elsewhere. Any comments appreciated. Just wondering if he has a leg to stand on to fight this. May need Lawyer to help obtain "court certified" documents.

That looks like a Washington state paper, not federal. I know exactly what his problem is. I need to get home but there it's a solution.

mikwehttam
02-23-2012, 3:52 PM
If his case was dismissed as you say then he should still be able to purchase a firearm. From what I understand a guilty plea is not the same as a conviction. I was in a similar situation as your brother. I was charged with some dumb charges and rather than go to trial the Deputy US Attorney offered me a deferred prosecution then dismissal after one year. I wanted to just fight the charges but my lawyer said it would be cheaper and easier to just take the deal. If, like in my case, the charges were dropped at the end of the probation, then there is NO conviction, which is the key word to note. That is how a deferred prosecution usually works; guilty pleas are entered conditionally by agreement with the prosecutor. These pleas are suspended while the defendant is given an opportunity to satisfy conditions of the plea agreement (one year probation, etc.). If the defendant fulfills the requirements, the plea is vacated and the charges dropped (ie no conviction); if the defendant fails, the guilty verdict becomes final.

If this is the case what your brother needs to do is send in another appeal, but this time with the official court documents showing that the case was actually dismissed. The copy of the FBI's denial that you posted above specifically states that the denial can be reversed with said documents.

Alternatively your brother can also submit a Voluntary Appeal File (VAF) form with the necessary documents, which will authorize the FBI to keep a file of these documents on hand so that he doesn't run into this problem again. Here's a link to that:

http://www.fbi.gov/about-us/cjis/nics/appeals/nics-appeals-process/to-complete-process2

EDIT: After re-reading the papers you posted it looks like he actually may have been convicted and only his sentence was dismissed. If that's the case then that would still make him a prohibited person.

Gray Peterson
02-23-2012, 4:04 PM
If his case was dismissed as you say then he should still be able to purchase a firearm. From what I understand a guilty plea is not the same as a conviction. I was in a similar situation as your brother. I was charged with some dumb charges and rather than go to trial the Deputy US Attorney offered me a deferred prosecution then dismissal after one year. I wanted to just fight the charges but my lawyer said it would be cheaper and easier to just take the deal. If, like in my case, the charges were dropped at the end of the probation, then there is NO conviction, which is the key word to note. That is how a deferred prosecution usually works; guilty pleas are entered conditionally by agreement with the prosecutor. These pleas are suspended while the defendant is given an opportunity to satisfy conditions of the plea agreement (one year probation, etc.). If the defendant fulfills the requirements, the plea is vacated and the charges dropped (ie no conviction); if the defendant fails, the guilty verdict becomes final.

If this is the case what your brother needs to do is send in another appeal, but this time with the official court documents showing that the case was actually dismissed. The copy of the FBI's denial that you posted above specifically states that the denial can be reversed with said documents.

Alternatively your brother can also submit a Voluntary Appeal File (VAF) form with the necessary documents, which will authorize the FBI to keep a file of these documents on hand so that he doesn't run into this problem again. Here's a link to that:

http://www.fbi.gov/about-us/cjis/nics/appeals/nics-appeals-process/to-complete-process2

EDIT: After re-reading the papers you posted it looks like he actually may have been convicted and only his sentence was dismissed. If that's the case then that would still make him a prohibited person.

This is not a federal matter, it's a state issue.

mikwehttam
02-23-2012, 4:09 PM
This is not a federal matter, it's a state issue.

I was under the impression that it was his brother denied for not passing the NICS check since he talked about speaking with the FBI. I thought the process was the same for appealing regardless of whether it was a state of federal offense?

Gray Peterson
02-23-2012, 11:33 PM
I was under the impression that it was his brother denied for not passing the NICS check since he talked about speaking with the FBI. I thought the process was the same for appealing regardless of whether it was a state of federal offense?

Here's his problem:

RCW 9.41.040:

(3) Notwithstanding RCW 9.41.047 or any other provisions of law, as used in this chapter, a person has been "convicted", whether in an adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing or disposition, post-trial or post-factfinding motions, and appeals. Conviction includes a dismissal entered after a period of probation, suspension or deferral of sentence, and also includes equivalent dispositions by courts in jurisdictions other than Washington state. A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Where no record of the court's disposition of the charges can be found, there shall be a rebuttable presumption that the person was not convicted of the charge.

More:

(4)(a) Notwithstanding subsection (1) or (2) of this section, a person convicted or found not guilty by reason of insanity of an offense prohibiting the possession of a firearm under this section other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances under RCW 69.50.401 and 69.50.410, who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from possession of a firearm as a result of the conviction or finding of not guilty by reason of insanity. Notwithstanding any other provisions of this section, if a person is prohibited from possession of a firearm under subsection (1) or (2) of this section and has not previously been convicted or found not guilty by reason of insanity of a sex offense prohibiting firearm ownership under subsection (1) or (2) of this section and/or any felony defined under any law as a class A felony or with a maximum sentence of at least twenty years, or both, the individual may petition a court of record to have his or her right to possess a firearm restored:

(i) Under RCW 9.41.047; and/or

(ii)(A) If the conviction or finding of not guilty by reason of insanity was for a felony offense, after five or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525; or

(B) If the conviction or finding of not guilty by reason of insanity was for a nonfelony offense, after three or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525 and the individual has completed all conditions of the sentence.

(b) An individual may petition a court of record to have his or her right to possess a firearm restored under (a) of this subsection (4) only at:
(i) The court of record that ordered the petitioner's prohibition on possession of a firearm; or
(ii) The superior court in the county in which the petitioner resides.

sirsloth
02-23-2012, 11:59 PM
Try going down to the courthouse and getting some sort of official document with a stamp that shows that the charges were dismissed. I applied for a WA CCW back in 2006 and forgot to disclose a couple misdemeanors that I had gotten expunged (ie dismissed). A deputy ended up contacting me over the phone questioning me about these charges. I explained to her that the charges had been expunged and once I faxed over the appropriate court documents proving so, the application was processed and approved.

Gray Peterson
02-24-2012, 12:16 AM
Try going down to the courthouse and getting some sort of official document with a stamp that shows that the charges were dismissed. I applied for a WA CCW back in 2006 and forgot to disclose a couple misdemeanors that I had gotten expunged (ie dismissed). A deputy ended up contacting me over the phone questioning me about these charges. I explained to her that the charges had been expunged and once I faxed over the appropriate court documents proving so, the application was processed and approved.

The only prohibiting misdemeanors in WA are DV misdemeanors.

mikwehttam
02-24-2012, 12:54 AM
Here's his problem:

RCW 9.41.040:

(3) Notwithstanding RCW 9.41.047 or any other provisions of law, as used in this chapter, a person has been "convicted", whether in an adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing or disposition, post-trial or post-factfinding motions, and appeals. Conviction includes a dismissal entered after a period of probation, suspension or deferral of sentence, and also includes equivalent dispositions by courts in jurisdictions other than Washington state.


Ah... I see now. I never entered a guilty plea so I never had to go through this.

What his brother needs to do is find out the conditions of the dismissal. If like I said, his guilty pleas was entered conditionally, and then vacated after the probation, then his guilty plea was never accepted and the case was dropped. If however they did accept his guilty plea and were only offering to dismiss the sentencing, well then he would still be a prohibited person (even by federal law).

MudCamper
02-24-2012, 8:10 AM
If the charges/conviction were in California, and the "dismissal" was a 1203.4, after a suspended sentence / probation, then that "dismissal" specifically does not apply for firearms possession. You need a 17(b) reduction to misdemeanor.

And it is common that when the DA agrees to these "suspended sentences" it includes the significant detail that the charge is declared a felony. People often don't realized that this poison pill comes with their offer for probation or whatever other apparently lax sentence they get.

You may need to go back to the California court and get the 17(b).

Gray Peterson
02-24-2012, 8:25 AM
If the charges/conviction were in California, and the "dismissal" was a 1203.4, after a suspended sentence / probation, then that "dismissal" specifically does not apply for firearms possession. You need a 17(b) reduction to misdemeanor.

And it is common that when the DA agrees to these "suspended sentences" it includes the significant detail that the charge is declared a felony. People often don't realized that this poison pill comes with their offer for probation or whatever other apparently lax sentence they get.

You need to go back to the California court and get the 17(b).

This isn't a federal problem. This is a unique Washington problem. Washington created this problem because too many gang bangers in CA were using post conviction relief and then moving to Washington to continue their criminal trade being able to legally possess. It's actually the opposite of the 10 year prohibiting misdemeanor thing.

He needs to go through the Washington state restore procedure.

He tried to buy a handgun without a CPL, which goes through the local background check process. if he had applied for a CPL, he would have had the same issue.

Irish Gunner
02-24-2012, 10:12 AM
Thanks that was the most comprehensive answer I could have gotten and from a WA resident. I appreciate your help and now he can have a plan to move forward. I am thinking that it might even be worth a trip to a lawyer with this printed out. Maybe they can help get it corrected to restore his purchase ability.

Funny thing is he was approved for a handgun long after these things were entered, then denied 6 months later for a rifle, this only added to the confusion.

Gray Peterson
02-24-2012, 11:49 AM
Thanks that was the most comprehensive answer I could have gotten and from a WA resident. I appreciate your help and now he can have a plan to move forward. I am thinking that it might even be worth a trip to a lawyer with this printed out. Maybe they can help get it corrected to restore his purchase ability.

Funny thing is he was approved for a handgun long after these things were entered, then denied 6 months later for a rifle, this only added to the confusion.

Best guys I know for this is Paul Ferris at washrecord.com