It Depends on the Crime That Led to the Charges
Should you file for an expungement or should you file a McGirt motion? My name is Ryan Cannonie, I am the Tahlequah Criminal Defense Attorney for the Wirth Law Office in Cherokee County. And there’s a question that’s kind of come up this week is should I, I had a felony conviction. I’ve got a suspended sentence or I had a deferred. I’m on it. I’m waiting for it to be up. Should I file for an expungement or should I file for a McGirt motion?
Now, if you don’t know about McGirt, watch any of our 100 other videos about it or Google it. It’s a huge thing. If you’re a native American in Eastern Oklahoma, change everything on the criminal law system.
So what should you do? Well, it kind of depends on your situation and it also depends on your crime you were charged with or you’re on a sentence for. So the federal government and the tribal governments can still pick these up once, like if you get rid of your sentence.
There are some cases, in fact, I believe McGirt case itself and Murphy, the case that kind of came before it, if I’m not mistaken, the day the decision came down and they did the mandate to Oklahoma to dismiss their case, the feds filed immediately, is what I was told on that and what I’ve read on that. So it just kind of depends on where you are.
Now, the vast majority of people, when you have smaller offenses, let’s say a, Oh, think of something like either a nonviolent crime or a victimless or a victim crime that’s nonviolent, or a victimless crime. Let’s say it’s possession with intent to distribute marijuana.
Now, the feds can prosecute that. It just depends on if they will. So anytime you follow a McGirt motion, you’re kind of rolling the dice, but you’re playing the odds on this of are they going to pick my case up or are they too busy with murderers and rapists? Right now, they’re pretty inundated with all these other cases.
So if you have this type of situation, you should probably go talk to an attorney now, strike while the iron’s hot, while everything’s kind of still being sorted out on that front. But what should you file? Should you file an expungement, wait and do that? Or should you file a McGirt?
As I said, it always comes back to kind of what’s going on in your case, but here’s a benefit of McGirt. McGirt says the state had no authority to file their case in the beginning. So they never had the authority to charge you. They never had the authority to convict you.
They don’t have the authority to keep you on the hook for probation, fines and costs, all that jazz there. Expungement says, yes, you were convicted. Yes, all this happened. But under our law, we’re allowing you to take that conviction off your record.
Now, law enforcement can still see it and use it against you for future cases. If let’s say, in the case of a deferred, deferred is not a conviction. It means that you were basically put on probation for something. And at the end of it, if you did everything you were supposed to, you can get that off your record, because it wasn’t a conviction.
But even if you get that off your record, even if you expunge it, there’s a lot of types of charges that within 10 years, say domestic violence, for instance, or violating a protective order, stalking. Actually, I take that back. Not violating a protective order. It’s stalking, I believe. DUI, huge one right there.
That even if you had a deferment on that, you didn’t get a conviction, if within the next 10 years you get charged with it again, they can go back and say, well, you had one before, so we’re going to make this new one a felony. Even if you get it expunged, they can still do that.
If you file a McGirt motion, however, you’re not saying that everything was fine and you just want it off your record. You’re saying that they messed up and you deserve to have this off your record. So McGirt has a little more teeth to it when you file motions. But it also has the, like I said, rolling the dice.
You know you got to weigh your cost-benefit of if you think the feds or the tribe is going to go ahead and prosecute you again for it. If you get an expungement, they’re not going to prosecute you again for it.
So how do you make this decision? Well, the first thing you do is go to tahlequahattorney.com and send us a web form questionnaire or you get on your phone and give us a call. (918) 932-2800.
And we can give you a free consultation, kind of talk to you about some of the options, talk to you about our retainer fee and see if we can help you on it. And if we can, once we can get rolling, we can file those fairly quickly, even if we’re pretty busy.