September 26, 2013, Introduced by Reps. Leonard, Johnson, Lauwers, Daley, Robinson, Somerville and MacGregor and referred to the Committee on Criminal Justice.
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 2011 PA 64.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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. A person who is otherwise eligible to file an
application under this section is not rendered ineligible by virtue
of being convicted of not more than 2 minor offenses in addition to
the offense for which the person files an application.
(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 145c,
145d, 520c, 520d, or 520g of the Michigan penal code, 1931 PA 328,
MCL 750.145c, 750.145d, 750.520c, 750.520d, and 750.520g, or a
conviction for a traffic offense.
(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 conviction sought to be set aside as a
result of this application, and not more than 2 minor offenses, if
applicable.
(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
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 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 Michigan which 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 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 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) "Minor offense" means a misdemeanor or ordinance violation
for which the maximum permissible imprisonment does not exceed 90
days, for which the maximum permissible fine does not exceed
$1,000.00, and that is committed by a person who is not more than
21 years of age.
(c) "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.
(d) "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.