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ADULT SET-ASIDE (expungement) ›
General
Information:
·
Some adult registerable convictions may
qualify to be set-aside (expunged).
o
4th degree (750.520e)
o
Should check into the possibility of
expunging any registerable offense other than 1st, 2nd, 3rd
or Assault with attempt to commit CSC (750.520b, 750.520c, 750.520d, and
750.520g). List of
Registerable offenses.
·
An expungement does NOT release an
individual from their registration requirements, but we are hoping that will
change.
·
Can only have ONE conviction on your
record.
·
An application cannot be filed until 5
years following the imposition (start) of sentencing.
·
If the expungement is denied it looks as
though you can go back at a later time and try again. There is no time limit
imposed.
·
To look up a specific MCL (Michigan Compiled Law)
number go to the Michigan Legislature
website.
·
Form: Application
to Set Aside Conviction. Page 2 of this document has an instruction sheet.
·
Form: Order
on Application to Set Aside Conviction – Final disposition on an application to set
aside (expunge) a conviction.
·
Pertinent information regarding an Adult expungement is in red below. Explanations are in {brackets}.
SETTING
ASIDE CONVICTIONS
Act
213 of 1965
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.
History: 1965, Act 213, Imd.
Eff. July 16, 1965;—Am. 1982, Act 495, Eff. Mar. 30, 1983.
The People of the State of
780.621
Application for order setting aside conviction; setting aside of certain
convictions prohibited; time and contents of application; submitting
application and fingerprints to department of state police; report; application
fee; contest of application by attorney general or prosecuting attorney; notice
to victim; affidavits and proofs; court order; definitions.
Sec. 1.
(1) Except as provided in subsection
(2), 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.
(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 {1st degree} 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 {2nd Degree}, 520d {3rd Degree}, or 520g {Assault w/ attempt to commit CSC} of the Michigan penal code, 1931 PA 328, MCL 750.520c,
750.520d, and 750.520g, or a conviction for a traffic offense. {4th degree, or any other registerable offense
potentially qualifies for expungement, as they are not excluded}
(3) An application shall
not be filed 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.
(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.
(d) A statement as to
whether the applicant has previously filed an application to set aside this 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
(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 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.
(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
(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 section 22a or 77a of the crime victim's rights act, 1985 PA 87,
MCL 780.772a and 780.827a. {Victims of a registerable offenses are notified about the
application, if possible}. 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 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.
(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 crime victim's rights act, 1985 PA 87, MCL
780.811.
(c) “Victim” means that term as
defined in section 2 of the crime victim's rights act, 1985 PA 87, MCL 780.752.
History:
1965, Act 213, Imd. Eff. July 16, 1965;—Am.
1982, Act 495, Eff. Mar. 30, 1983;—Am. 1993, Act 342,
Eff. May 1, 1994;—Am. 1996, Act 573, Eff. Apr. 1, 1997;—Am. 2002, Act 472, Eff.
Oct. 1, 2002.
780.621a
Definitions.
Sec.
1a. As used in this act:
(a) “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.
History:
Add. 1982, Act
495, Eff. Mar. 30, 1983.
780.622
Entry of order; effect.
Sec. 2.
(1) Upon the entry of an order pursuant to 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 this act is for a listed offense as defined in section 2
of the sex offenders registration act, the applicant is considered to have been
convicted of that offense for purposes of the sex offenders registration act. {This means that you would still be required to abide by
the SORA}
(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.
History:
1965, Act 213, Imd. Eff. July 16, 1965;—Am.
1982, Act 495, Eff. Mar. 30, 1983;—Am. 1993, Act 342,
Eff. May 1, 1994;—Am. 1994, Act 294, Eff. Oct. 1, 1995.
780.623
Sending copy of order to arresting agency and department of state police;
retention and availability of nonpublic record of order and other records;
providing copy of nonpublic record to person whose conviction set aside; fee;
nonpublic record exempt from disclosure;
prohibited
conduct; misdemeanor; penalty.
Sec. 3.
(1) Upon the entry of an order
pursuant to 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.
(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.
(d) Consideration by the governor if
a person whose conviction has been set aside applies for a pardon for another
offense.
(e) Consideration by a law
enforcement agency if a person whose conviction has been set aside applies for
employment with the law enforcement agency.
(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.
(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.
(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.
History:
Add. 1982, Act
495, Eff. Mar. 30, 1983;—Am. 1988, Act 11, Imd. Eff. Feb. 8, 1988;—Am. 1993,
Act 342, Eff. May 1, 1994;—Am. 1994, Act 294, Eff. Oct. 1, 1995.
780.624
Setting aside of convictions; limitation.
Sec. 4.
A person may
have only 1 conviction set aside under this act.
History:
Add. 1982, Act
495, Eff. Mar. 30, 1983.