HB-5600, As Passed Senate, December 13, 2012

SUBSTITUTE FOR

HOUSE BILL NO. 5600

(As amended December 13, 2012)

     A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

by amending section 18e of chapter XIIA (MCL 712A.18e), as amended

by 1996 PA 257.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XIIA

     Sec. 18e. (1) Except as provided in subsection (2), a person

who has been adjudicated of not more than 1 juvenile offense that

would be a felony if committed by an adult and not more than <<3

juvenile offenses, of which not more than 1 may be a juvenile offense

that would be a felony >> if committed by an

adult and who has no felony convictions may file an application

with the adjudicating court <<or adjudicating courts>> for the entry

of an order setting aside

the adjudication adjudications. A person may have only 1

House Bill No. 5600 as amended December 13, 2012

adjudication for an offense that would be a felony if committed by

an adult and not more than 2 adjudications for an offense that

would be a misdemeanor if committed by an adult <<or if there is

no adjudication for a felony if committed by an adult, not more

than 3 adjudications for an offense that would be a misdemeanor if

committed by an adult>> set aside under

this section. Multiple adjudications arising out of a series of

acts that were in a continuous time sequence of 12 hours or less

and that displayed a single intent and goal constitute 1 offense

provided that none of the adjudications constitute any of the

following:

     (a) An assaultive crime as that term is defined in subsection

(7).

     (b) An offense involving the use or possession of a weapon.

     (c) An offense with a maximum penalty of 10 or more years

imprisonment.

     (2) A person shall not apply under this section to have set

aside, and a judge shall not under this section set aside, any of

the following:

     (a) An adjudication for an offense that if committed by an

adult would be a felony for which the maximum punishment is life

imprisonment.

     (b) An adjudication for a traffic offense under 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 1949 PA

300, MCL 257.1 to 257.923, or a local ordinance substantially

corresponding to that act, that involves the operation of a vehicle

and at the time of the violation is a felony or misdemeanor.

     (c) A conviction under section 2d of this chapter. This

subdivision does not prevent a person convicted under section 2d of

this chapter from having that conviction set aside as otherwise

provided by law.

     (3) An application under this section shall not be filed until

the expiration of 5 years 1 year following imposition of the

disposition for the adjudication that the applicant seeks to set

aside, or 5 years 1 year following completion of any term of

detention for that adjudication, or when the person becomes 24 18

years of age, whichever occurs later.

     (4) An application under this section is invalid unless it

contains the following information and is signed under oath by the

person whose adjudication is to be set aside:

     (a) The full name and current address of the applicant.

     (b) A certified record of the adjudication that is to be set

aside.

     (c) A statement that the applicant has not been adjudicated of

a juvenile offense other than the one that is juvenile offenses

sought to be set aside as a result of this application.

     (d) A statement that the applicant has not been convicted of

any felony offense.

     (e) A statement as to whether the applicant has previously

filed an application to set aside this or any other adjudication

and, if so, the disposition of the application.

     (f) 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.

     (g) A consent to the use of the nonpublic record created under

subsection (13), to the extent authorized by subsection (13).

     (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 subsection (13), 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 adjudication or conviction of the applicant, and the

setting aside of any adjudication or 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 pursuant to under subsection (5) shall be accompanied

by a fee of $25.00 payable to the state of Michigan. The department

of state police shall use the fee to defray the expenses incurred

in processing the application.

     (7) A copy of the application shall be served upon the

attorney general and, if applicable, upon the office of the

prosecuting attorney who prosecuted the offense. The attorney

general and the prosecuting attorney shall have an opportunity to

contest the application. If the adjudication was for an offense

that if committed by an adult would be an assaultive crime or

serious misdemeanor, and if the name of the victim is known to the

prosecuting attorney, the prosecuting attorney shall give the

victim of that offense written notice of the application and

forward a copy of the application to the victim under section 46a

of the William Van Regenmorter crime victim's rights act, Act No.

87 of the Public Acts of 1985, being section 780.796a of the

Michigan Compiled Laws 1985 PA 87, MCL 780.796a. The notice shall

be sent by first-class mail to the victim's last known address. The

victim has the right to appear at any proceeding under this section

concerning that adjudication and to make a written or oral

statement. As used in this subsection:

     (a) "Assaultive crime" means that term as defined in section

9a of chapter X of the code of criminal procedure, Act No. 175 of

the Public Acts of 1927, being section 770.9a of the Michigan

Compiled Laws 1927 PA 175, MCL 770.9a.

     (b) "Serious misdemeanor" means that term as defined in

section 61 of Act No. 87 of the Public Acts of 1985, being section

780.811 of the Michigan Compiled Laws the William Van Regenmorter

crime victim's rights act, 1985 PA 87, MCL 780.781.

     (c) "Victim" means that term as defined in section 31 of Act

No. 87 of the Public Acts of 1985, being section 780.781 of the

Michigan Compiled Laws the William Van Regenmorter crime victim's

rights act, 1985 PA 87, MCL 780.781.

     (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) Except as provided in subsection (10), if the court

House Bill No. 5600 as amended December 13, 2012

determines that the circumstances and behavior of the applicant

from the date of the applicant's adjudication to the filing of the

application warrant setting aside the 1 adjudication for a juvenile

offense that would be a felony if committed by an adult and not

more than 2 adjudications for a juvenile offense that would be a

misdemeanor if committed by an adult <<or if there is no adjudication

for a felony if committed by an adult, not more than 3 adjudications

for an offense that would be a misdemeanor if committed by an adult>>

and that setting aside the

adjudication or adjudications is consistent with the public

welfare, the court may enter an order setting aside the

adjudication. Except as provided in subsection (10), the setting

aside of an adjudication under this section is a privilege and

conditional, and is not a right.

     (10) Notwithstanding subsection (9), the court shall set aside

the adjudication of a person who was adjudicated for an offense

that if committed by an adult would be a violation or an attempted

violation of section 413 of the Michigan penal code, Act No. 328 of

the Public Acts of 1931, being section 750.413 of the Michigan

Compiled Laws 1931 PA 328, MCL 750.413, if the person files an

application with the court and otherwise meets the requirements of

this section.

     (11) Upon the entry of an order under this section, the

applicant is considered not to have been previously adjudicated,

except as provided in subsection (13) and as follows:

     (a) The applicant is not entitled to the remission of any

fine, costs, or other money paid as a consequence of an

adjudication that is set aside.

     (b) This section does not affect the right of the applicant to

rely upon the adjudication to bar subsequent proceedings for the

House Bill No. 5600 as amended December 13, 2012

same offense.

     (c) This section does not affect the right of a victim of an

offense to prosecute or defend a civil action for damages.

     (d) This section does not create a right to commence an action

for damages for detention under the disposition that the applicant

served before the adjudication is set aside pursuant to under this

section.

     (12) Upon the entry of an order under this section, the court

shall send a copy of the order to the arresting agency and the

department of state police.

     (13) The department of state police shall retain a nonpublic

record of the order setting aside an adjudication for a juvenile

offense that would be a felony if committed by an adult and not

more than 2 juvenile offenses that would be misdemeanors if

committed by an adult <<or if there is no adjudication for a

felony if committed by an adult, not more than 3 adjudications for

an offense that would be a misdemeanor if commited by an adult>>

and of the record of the arrest,

fingerprints, adjudication, and disposition of the applicant in the

case to which the order applies. Except as provided in subsection

(14), 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) Consideration by a law enforcement agency if a person

whose adjudication has been set aside applies for employment with

the law enforcement agency.

     (c) To show that a person who has filed an application to set

aside an adjudication has previously had an adjudication set aside

under this section.

     (d) 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.

     (e) Consideration by the governor, if a person whose

adjudication has been set aside applies for a pardon for another

offense.

     (14) A copy of the nonpublic record created under subsection

(13) shall be provided to the person whose adjudication is set

aside under this section 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.

     (15) The nonpublic record maintained under subsection (13) is

exempt from disclosure under Act No. 442 of the Public Acts of

1976, being sections 15.231 to 15.246 of the Michigan Compiled Laws

the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

     (16) Except as provided in subsection (13), a person, other

than the applicant, who knows or should have known that an

adjudication was set aside under this section, who divulges, uses,

or publishes information concerning an adjudication set aside under

this section is guilty of a misdemeanor.