April 29, 2009, Introduced by Reps. Cushingberry, Johnson, Smith, Tlaib, Young, Durhal, Lemmons, Nathan and Jackson 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 sections 1, 1a, 2, and 3 (MCL 780.621, 780.621a,
780.622, and 780.623), section 1 as amended by 2002 PA 472, section
1a as added by 1982 PA 495, and sections 2 and 3 as amended by 1994
PA 294; 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), a 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
any conviction.
(2)
A person shall not apply to have set aside, and a judge
shall
not set aside, a conviction for 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
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 conviction for a traffic
offense.
(2) (3)
An application shall not be filed to set aside a
conviction for a felony until at least 5 years following imposition
of
the sentence for the conviction that the applicant seeks to set
aside
or 5 years following completion of
any term of imprisonment
for that conviction, whichever occurs later. An application shall
not be filed to set aside a conviction for a misdemeanor until at
least 5 years following imposition of sentence for the conviction
or 3 years following completion of any term of imprisonment for
that conviction, whichever occurs later.
(3) (4)
The application 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 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.
(c) (d)
A statement as to whether the
applicant has previously
filed
an application to set aside this or any other the conviction
and, if so, the disposition of the application.
(d) (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.
(e) (f)
A consent to the use of the
nonpublic record created
under section 3 to the extent authorized by section 3.
(4) (5)
The applicant shall submit a copy
of the application
and 2 complete sets 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
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.
(5) (6)
The copy of the application
submitted to the
department
of state police under subsection (5) (4) shall be
accompanied by a fee of $50.00 payable to the state of Michigan
which shall be used by the department of state police to defray the
expenses incurred in processing the application.
(6) (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 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 under 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.
(7) (8)
Upon the hearing of the application
the court may
require the filing of affidavits and the taking of proofs as it
considers proper.
(8) (9)
If the court determines that the
circumstances and
behavior of the applicant from the date of the applicant's
conviction to the filing of the application warrant setting aside
the conviction and that setting aside the conviction is consistent
with the public welfare, the court may enter an order setting aside
the conviction. The setting aside of a conviction under this act is
a privilege and conditional and is not a right.
(9) (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) "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.
(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.
Sec.
1a. As used in this act, :
(a)
"Conviction" "conviction" means a judgment entered by a
court upon a plea of guilty, guilty but mentally ill, or nolo
contendere, or upon a jury verdict or court finding that a
defendant is guilty or guilty but mentally ill.
(b)
"Traffic offense" means a violation of the Michigan
vehicle
code, Act No. 300 of the Public Acts of 1949, being
sections
257.1 to 257.923 of the Michigan Compiled Laws, or a local
ordinance
substantially corresponding to that act, which violation
involves
the operation of a vehicle and at the time of the
violation
is a felony or misdemeanor.
Sec.
2. (1) Upon the entry of an order pursuant to under
section 1, the applicant, for purposes of the law, shall be
considered not to have been previously convicted, except as
provided in this section and section 3.
(2) The applicant is not entitled to the remission of any
fine, costs, or other money paid as a consequence of a conviction
that is set aside.
(3)
If the conviction set aside pursuant to under this act is
for a listed offense as defined in section 2 of the sex offenders
registration act, 1994 PA 295, MCL 28.722, the applicant is
considered to have been convicted of that offense for purposes of
the sex offenders registration act.
(4) This act does not affect the right of the applicant to
rely upon the conviction to bar subsequent proceedings for the same
offense.
(5) This act does not affect the right of a victim of a crime
to prosecute or defend a civil action for damages.
(6) This act does not create a right to commence an action for
damages for incarceration under the sentence that the applicant
served before the conviction is set aside pursuant to this act.
Sec.
3. (1) Upon the entry of an order pursuant to under
section 1, the court shall send a copy of the order to the
arresting agency and the department of state police.
(2) The department of state police shall retain a nonpublic
record of the order setting aside a conviction and of the record of
the arrest, fingerprints, conviction, and sentence of the applicant
in the case to which the order applies. Except as provided in
subsection (3), this nonpublic record shall be made available only
to a court of competent jurisdiction, an agency of the judicial
branch of state government, a law enforcement agency, a prosecuting
attorney, the attorney general, or the governor upon request and
only for the following purposes:
(a) Consideration in a licensing function conducted by an
agency of the judicial branch of state government.
(b)
To show that a person who has filed an application to set
aside
a conviction has previously had a conviction set aside
pursuant
to this act.
(b) (c)
The court's consideration in
determining the sentence
to be imposed upon conviction for a subsequent offense that is
punishable as a felony or by imprisonment for more than 1 year.
(c) (d)
Consideration by the governor if a
person whose
conviction has been set aside applies for a pardon for another
offense.
(d) (e)
Consideration by a law enforcement
agency if a person
whose conviction has been set aside applies for employment with the
law enforcement agency.
(e) (f)
Consideration by a court, law
enforcement agency,
prosecuting attorney, or the attorney general in determining
whether an individual required to be registered under the sex
offenders registration act has violated that act, or for use in a
prosecution for violating that act.
(3) A copy of the nonpublic record created under subsection
(2) shall be provided to the person whose conviction is set aside
under this act upon payment of a fee determined and charged by the
department of state police in the same manner as the fee prescribed
in
section 4 of the freedom of information act, Act No. 442 of the
Public
Acts of 1976, being section 15.234 of the Michigan Compiled
Laws
1976 PA 442, MCL 15.234.
(4) The nonpublic record maintained under subsection (2) is
exempt
from disclosure under the freedom of information act, Act
No.
442 of the Public Acts of 1976, being sections 15.231 to 15.246
of
the Michigan Compiled Laws 1976 PA 442, MCL 15.231 to 15.246.
(5) Except as provided in subsection (2), a person, other than
the applicant, who knows or should have known that a conviction was
set aside under this section and who divulges, uses, or publishes
information concerning a conviction set aside under this section is
guilty of a misdemeanor punishable by imprisonment for not more
than 90 days or a fine of not more than $500.00, or both.
Enacting section 1. Section 4 of 1965 PA 213, MCL 780.624, is
repealed.
Enacting section 2. This amendatory act takes effect January
1, 2010.