What's the matter with kids these days? (Part II)
Q. In the state of South Carolina, can a person be expunged for a felony? This involves 2 people one of which used a play gun to rob a cabbie of $8. My friend was charged with aggravated assault...he didn't use the play gun, just there distracting the cabbie so the other guy could rob him...public defender told him to plead guilty....i am trying to help him get this thing expunged...help.
A. Let me warn you up front that this whole question just ticks me off. I’ll explain why at the end, but let me get some preliminaries out of the way.
First off, this is a case of a little information being a dangerous thing. It appears that you have a misunderstanding of the word “expunged.” To “expunge” something, you obliterate it, erase it, or annihilate it. Generally, the law takes a dim view on expunging people, except in a few cases. (I know, I know. I’m sounding just a little snarky. I warned you, this question ticks me off. But I’ll try to be good.)
Anyway, in the law, the term “expunge” is used in connection with a criminal conviction. In many states, if you have one -- and only one -- criminal conviction on your record, you can petition the court to have that conviction expunged from your record, which means that it is erased. If you’ve had a conviction “expunged,” in most cases the law views you as having never been convicted of a crime. (However, the fact of your arrest may not be expunged, even though the conviction is. The laws of each state govern.)
Expungement wouldn’t apply in your friend’s situation because the case is still pending. It sounds like your friend is trying to figure out how to have the charges dismissed. A dismissal means that the state has decided to drop the case and will not prosecute for the crime. Unless the state has no witnesses, or a particularly bad case, or someone else confesses, it’s not very likely that the state will agree to dismiss against your friend.
Having both prosecuted and defended criminal cases, I can honestly tell you that your friend has some serious problems. I’m guessing the victim probably identified your friend. It may also be that his accomplice (the one holding the “play gun”) flipped on him in order to receive a lighter sentence. The quality of the state’s evidence against your friend is probably why the public defender is recommending a plea.
Now, I know you’re wondering why this question bothers me so much. It’s the way you so off-handedly refer to the “play gun” and the eight dollars that your friend and his accomplice stole from their victim as if the fact that the gun was “only” a toy, and that they “only” got eight dollars from the robbery somehow mitigates what they did. Are you kidding me? Your friend may have known it was a “play gun,” but I’m guessing he didn’t clue the victim into that fact.
Do you think the cabby felt good about things as this robbery went down? Do you think he was saying, “Oh, ho ho! These kids and their funny pranks -- look at that play gun! I’ll just give him the last eight dollars in my pocket as a way of playing along.” Or do you think the cabby’s life might have been flashing before his eyes as he wondered whether he’d ever see his wife again? Do you think that maybe he was wishing he had more than eight dollars in his pocket to give the two thugs who’d hopped into his cab, because he was afraid that eight dollars wasn’t enough to satisfy them and they’d blow him away just for the hell of it?
Oh, I’m sure your friend is regretful now -- now that he’s been caught. But let’s not minimize what happened here. He was involved in a robbery in which the cabby was led to believe that he was in fear for his life by the threat of the use of a firearm against him. You don’t actually have to hurt the guy for an aggravated assault to occur. In many states, if a firearm is involved -- even a “play gun” -- all you have to do is put the victim in fear for his life, or help someone else do that.
Here’s all you have to do to understand why your attitude bothers me so much: Imagine walking by yourself through the parking garage at your local mall at 9:30 at night when two strangers jump out from behind a pillar. No one else is around, and one guy is pointing something at you that sure as hell looks like a gun. The other one is "distracting" you by demanding all of the money in your wallet or they’ll shoot you dead. Your heart starts pounding like a drum in your chest, your mouth goes dry and your palms get all sweaty. Now, answer this: Are you going to take the time to find out if they’re holding a “play gun,” or are you going to pull out your wallet and empty it?
That’s what I thought.
A. Let me warn you up front that this whole question just ticks me off. I’ll explain why at the end, but let me get some preliminaries out of the way.
First off, this is a case of a little information being a dangerous thing. It appears that you have a misunderstanding of the word “expunged.” To “expunge” something, you obliterate it, erase it, or annihilate it. Generally, the law takes a dim view on expunging people, except in a few cases. (I know, I know. I’m sounding just a little snarky. I warned you, this question ticks me off. But I’ll try to be good.)
Anyway, in the law, the term “expunge” is used in connection with a criminal conviction. In many states, if you have one -- and only one -- criminal conviction on your record, you can petition the court to have that conviction expunged from your record, which means that it is erased. If you’ve had a conviction “expunged,” in most cases the law views you as having never been convicted of a crime. (However, the fact of your arrest may not be expunged, even though the conviction is. The laws of each state govern.)
Expungement wouldn’t apply in your friend’s situation because the case is still pending. It sounds like your friend is trying to figure out how to have the charges dismissed. A dismissal means that the state has decided to drop the case and will not prosecute for the crime. Unless the state has no witnesses, or a particularly bad case, or someone else confesses, it’s not very likely that the state will agree to dismiss against your friend.
Having both prosecuted and defended criminal cases, I can honestly tell you that your friend has some serious problems. I’m guessing the victim probably identified your friend. It may also be that his accomplice (the one holding the “play gun”) flipped on him in order to receive a lighter sentence. The quality of the state’s evidence against your friend is probably why the public defender is recommending a plea.
Now, I know you’re wondering why this question bothers me so much. It’s the way you so off-handedly refer to the “play gun” and the eight dollars that your friend and his accomplice stole from their victim as if the fact that the gun was “only” a toy, and that they “only” got eight dollars from the robbery somehow mitigates what they did. Are you kidding me? Your friend may have known it was a “play gun,” but I’m guessing he didn’t clue the victim into that fact.
Do you think the cabby felt good about things as this robbery went down? Do you think he was saying, “Oh, ho ho! These kids and their funny pranks -- look at that play gun! I’ll just give him the last eight dollars in my pocket as a way of playing along.” Or do you think the cabby’s life might have been flashing before his eyes as he wondered whether he’d ever see his wife again? Do you think that maybe he was wishing he had more than eight dollars in his pocket to give the two thugs who’d hopped into his cab, because he was afraid that eight dollars wasn’t enough to satisfy them and they’d blow him away just for the hell of it?
Oh, I’m sure your friend is regretful now -- now that he’s been caught. But let’s not minimize what happened here. He was involved in a robbery in which the cabby was led to believe that he was in fear for his life by the threat of the use of a firearm against him. You don’t actually have to hurt the guy for an aggravated assault to occur. In many states, if a firearm is involved -- even a “play gun” -- all you have to do is put the victim in fear for his life, or help someone else do that.
Here’s all you have to do to understand why your attitude bothers me so much: Imagine walking by yourself through the parking garage at your local mall at 9:30 at night when two strangers jump out from behind a pillar. No one else is around, and one guy is pointing something at you that sure as hell looks like a gun. The other one is "distracting" you by demanding all of the money in your wallet or they’ll shoot you dead. Your heart starts pounding like a drum in your chest, your mouth goes dry and your palms get all sweaty. Now, answer this: Are you going to take the time to find out if they’re holding a “play gun,” or are you going to pull out your wallet and empty it?
That’s what I thought.
posted by David Kendall at
1:09 AM
1 Comments:
Depending on where in the world you live, this could also play out thusly:
1. You and a friend decide to use a "play gun" to commit a robbery for laughs.
2. You pull out your "gun" while your friend demands money.
3. Your "victim" pulls out the legally-concealed weapon he practices with every week and proceeds to make small holes in both of you.
4. Your loved ones identify you at the morgue and the news writes a story about how two dumb kids were killed by an upstanding citizen during an attempted robbery.
In the hands of an adult, there is NO SUCH THING AS A "PLAY GUN" -- ask your local law enforcement.
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Anonymous, at 10:30 PM
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