HB-4327, As Passed House, September 28, 2005

SUBSTITUTE FOR

HOUSE BILL NO. 4327

     A bill to amend 1965 PA 213, entitled

"An act to provide for setting aside the conviction in certain

criminal cases; to provide for the effect of such action; to

provide for the retention of certain nonpublic records and their

use; to prescribe the powers and duties of certain public agencies

and officers; and to prescribe penalties,"

by amending section 1 (MCL 780.621), as amended by 2002 PA 472; and

to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1. (1) Except as provided in  subsection (2) subsections

(2), (10), and (11), a person who is convicted of  not more than  1

felony offense and no other felony or misdemeanor offenses, or is

convicted of not more than 2 misdemeanor offenses and no other

felony or misdemeanor offenses, may file an application with the

convicting court for the entry of an order setting aside  the

conviction either the felony conviction or 1 or both of the

misdemeanor convictions.

     (2) A person shall not apply to have set aside, and a judge

shall not set aside, a conviction for  a any of the following:

     (a) A felony for which the maximum punishment is life

imprisonment or an attempt to commit a felony for which the maximum

punishment is life imprisonment.  , a

(b) A conviction for a violation or attempted violation of

section 520c, 520d, or 520g of the Michigan penal code, 1931 PA

328, MCL 750.520c, 750.520d, and 750.520g.  , or a

(c) A conviction for a traffic offense.

     (3) An application shall  not only be filed  until at least

according to the following time limitations:

     (a) Not less than 5 years following imposition of the sentence

or the completion of probation or parole imposed for  the a felony

conviction that the applicant seeks to set aside or not less than 5

years following completion of any term of imprisonment for that

conviction, whichever occurs later.

(b) Not less than 2 years following imposition of the sentence

or the completion of probation imposed for a misdemeanor conviction

that the applicant seeks to set aside or not less than 2 years

following completion of any term of imprisonment for that

conviction, whichever occurs later.

     (4)  The  An application under this section is invalid unless

it contains the following information and is signed under oath by

the person whose conviction is to be set aside:

     (a) The full name and current address of the applicant.

     (b) A certified record of  the each conviction that is to be

set aside.

     (c) A statement  that the applicant has not been convicted of

an offense other than the one sought to be set aside as a result of

this application  listing all actions enumerated in subsection (11)

that were initiated against the applicant and have been dismissed.

     (d) A statement as to whether the applicant has previously

filed an application to set aside this conviction or convictions or

any other conviction and, if so, the disposition of the

application.

     (e) A statement as to whether the applicant has any other

criminal charge pending against him or her in any court in the

United States or in any other country.

     (f) A consent to the use of the nonpublic record created under

section 3 to the extent authorized by section 3.

     (5) The applicant shall submit a copy of the application and

2 complete sets 1 complete set of fingerprints to the department

of state police. The department of state police shall compare those

fingerprints with the records of the department, including the

nonpublic record created under section 3, and shall forward  a an

electronic copy of the complete set of fingerprints to the federal

bureau of investigation for a comparison with the records available

to that agency. The department of state police shall report to the

court in which the application is filed the information contained

in the department's records with respect to any pending charges

against the applicant, any record of conviction of the applicant,

and the setting aside of any conviction of the applicant and shall

report to the court any similar information obtained from the

federal bureau of investigation. The court shall not act upon the

application until the department of state police reports the

information required by this subsection to the court.

     (6) The copy of the application submitted to the department of

state police under subsection (5) shall be accompanied by a fee of

$50.00 payable to the state of Michigan  which that shall be used

by the department of state police to defray the expenses incurred

in processing the application.

     (7) A copy of the application shall be served upon the

attorney general and upon the office of the prosecuting attorney

who prosecuted the crime, and an opportunity shall be given to the

attorney general and to the prosecuting attorney to contest the

application. If  the a conviction was for an assaultive crime or a

serious misdemeanor, the prosecuting attorney shall notify the

victim of the assaultive crime or serious misdemeanor of the

application pursuant to section 22a or 77a of the crime victim's

rights act, 1985 PA 87, MCL 780.772a and 780.827a. The notice shall

be by first-class mail to the victim's last known address. The

victim has the right to appear at any proceeding under this act

concerning that conviction and to make a written or oral statement.

     (8) Upon the hearing of the application the court may require

the filing of affidavits and the taking of proofs as it considers

proper.

     (9) If the court determines that the circumstances and

behavior of the applicant from the date of the applicant's

conviction or convictions to the filing of the application warrant

setting aside the conviction or convictions and that setting aside

the conviction or convictions is consistent with the public

welfare, at the court's discretion the court may enter an order

setting aside the conviction or convictions. The setting aside of a

conviction or convictions under this act is a privilege and

conditional and is not a right.

(10) A person who is convicted of more than 1 misdemeanor for

any of the following shall not apply to set aside, and a judge

shall not set aside, a misdemeanor conviction for violating or

attempting to violate any of the following:

     (a) A crime in which the victim was a spouse, a former spouse,

an individual with whom he or she has had a child in common, an

individual with whom he or she has or has had a dating

relationship, or an individual residing or having resided in the

same household.

     (b) Section 81, 81a, 81c, 90b, 136b, 335a, or 411h(2)(a) of

the Michigan penal code, 1931 PA 328, MCL 750.81, 750.81a, 750.81c,

750.90b, 750.136b, 750.335a, and 750.411h.

     (11) A person shall not apply to set aside, and a judge shall

not set aside, any misdemeanor conviction if the person is

convicted of 2 misdemeanor convictions and has had 1 or more

actions dismissed under 1 or more of the following:

     (a) Section 703 of the Michigan liquor control code of 1998,

1998 PA 58, MCL 436.1703.

     (b) Section 1070(b)(i) of the revised judicature act of 1961,

1961 PA 236, MCL 600.1070.

     (c) Section 13 of chapter II, section 4a of chapter IX, or

section 1 of chapter XI of the code of criminal procedure, 1927 PA

175, MCL 762.13, 769.4a, and 771.1.

     (d) Section 7411 of the public health code, 1978 PA 368, MCL

333.7411.

     (e) Section 350a or 430 of the Michigan penal code, 1931 PA

328, MCL 750.350a and 750.430.

     (f) Any other law of this state or of a political subdivision

of this state similar to those listed in this subsection that

provides for the deferral and dismissal of a felony or misdemeanor

charge.

(12)  (10)  As used in this section:

     (a) "Assaultive crime" means that term as defined in section

9a of chapter X of the code of criminal procedure, 1927 PA 175, MCL

770.9a.

(b) "Dating relationship" means that term as defined in

section 2950 of the revised judicature act of 1961, 1961 PA 236,

MCL 600.2950.

(c) "Felony" means a violation of a penal law of this state,

of another state, or of the United States that is punishable by

imprisonment for more than 1 year or is expressly designated by law

to be a felony.

     (d) "Misdemeanor" means a violation of any of the following:

     (i) A penal law of this state, of another state, or of the

United States that is not a felony.

     (ii) An order, rule, or regulation of a state agency that is

punishable by imprisonment for not more than 1 year or a fine that

is not a civil fine, or both.

     (iii) A local ordinance of a political subdivision of this state

substantially corresponding to a crime listed in subparagraph (i) or

(ii) that is not a felony.

     (iv) A violation of the law of another state or political

subdivision of another state substantially corresponding to a crime

listed under subparagraph (i) or (ii) that is not a felony.

     (v) A violation of the law of the United States substantially

corresponding to a crime listed under subparagraph (i) or (ii) that

is not a felony.

(e)  (b)  "Serious misdemeanor" means that term as defined in

section 61 of the crime victim's rights act, 1985 PA 87, MCL

780.811.

(f)  (c)  "Victim" means that term as defined in section 2 of

the crime victim's rights act, 1985 PA 87, MCL 780.752.

     Enacting section 1. Section 4 of 1965 PA 213, MCL 780.624, is

repealed.

     Enacting section 2.  This amendatory act takes effect January

1, 2006.