September 15, 2007, Introduced by Reps. Coulouris, Johnson, Constan, Alma Smith, Byrnes, Melton, Meadows, Condino, Bieda, Virgil Smith, Meisner, Tobocman and Robert Jones 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) Subject to
subsections
(2), (10), and (11), a person who is
convicted of not
more
than 1 offense may file an
application with the convicting
court
for the entry of an order setting aside the conviction. 1 or
more convictions as follows:
(a) A person who is convicted of not more than 1 felony
offense and not more than 2 misdemeanor offenses may petition to
set aside the felony offense. For purposes of eligibility only
under this subdivision, a traffic offense does not constitute a
misdemeanor, except for violations of section 625 of the Michigan
vehicle code, 1949 PA 300, MCL 257.625.
(b) A person who is convicted of not more than 2 misdemeanor
offenses and no other felony or misdemeanor offenses may petition
to set aside 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 not
less than 5 years following imposition of the sentence or the
completion of probation or parole imposed for the 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.
(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 these
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 each prosecuting
attorney who prosecuted the crime or crimes, 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 William Van Regenmorter 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 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 misdemeanors and has had an action dismissed under 1
of the following:
(a) Section 703 of the Michigan liquor control code of 1998,
1998 PA 58, MCL 436.1703.
(b) Section 1070(1)(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) "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.
(c) "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.
(d) (b)
"Serious misdemeanor" means that term as defined in
section 61 of the William Van Regenmorter crime victim's rights
act, 1985 PA 87, MCL 780.811.
(e) (c)
"Victim" means that term as defined in section 2 of
the William Van Regenmorter 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.