February 17, 2005, Introduced by Reps. Waters, Cushingberry, Meisner, Alma Smith, Ward, Lemmons, Jr., Gaffney, McConico and Lemmons, III and referred to the Committee on Judiciary.
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) and (10), a person who is convicted of not more than 1 felony
offense and no other offenses or not more than 2 misdemeanor
offenses may file an application with the convicting court for the
entry
of an order setting aside the conviction either the felony
offense or 1 or both of the misdemeanor offenses.
(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
the successful 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 the successful 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 conviction
or convictions sought to
be set aside as a result of this application.
(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, 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 a conviction for,
and a judge shall not set aside more than 1 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, 8lc, 90b, 136b, or 411h(2)(a) of the
Michigan penal code, 1931 PA 328, MCL 750.81, 750.81a, 750.81c,
750.90b, 750.136b, and 750.411h.
(11) (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
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 a penal law of this
state that is not a felony or a violation of 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.
(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.