HB-5025, As Passed Senate, October 2, 2014

 

 

 

 

 

 

 

 

 

 

 

SENATE SUBSTITUTE FOR

 

HOUSE BILL NO. 5025

 

 

 

 

 

 

 

 

 

 

 

     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, 2, and 4 (MCL 780.621, 780.622, and

 

780.624), section 1 as amended by 2011 PA 64, section 2 as amended

 

by 1994 PA 294, and section 4 as added by 1982 PA 495.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. (1) Except as provided in subsection subsections (2)

 

and (3), 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 Except as provided in subsections (3) and (5), 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) A person who is convicted of a violation of section 448,

 

449, or 450 of the Michigan penal code, 1931 PA 328, MCL 750.448,

 

750.449, and 750.450, may apply to have that conviction set aside

 

if he or she committed the offense as a direct result of his or her

 

being a victim of a human trafficking violation.

 

     (4) (3) An application under subsection (1) 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.

 

     (5) An application under subsection (3) may be filed at any

 

time following the date of the conviction to be set aside. A person

 

may apply to have more than 1 conviction set aside under subsection

 

(3).

 

     (6) (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 For an application under subsection (1), 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) If the person is seeking to have 1 or more convictions set

 

aside under subsection (3), a statement that he or she meets the

 

criteria set forth in subsection (3), together with a statement of

 

the facts supporting his or her contention that the conviction was

 

a direct result of his or her being a victim of human trafficking.

 

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

 

under section 3 to the extent authorized by section 3.

 

     (7) (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.

 

     (8) (6) The copy of the application submitted to the

 

department of state police under subsection (5) (7) 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.

 

     (9) (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.

 

     (10) (8) Upon For an application under subsection (1), upon

 

the hearing of the application the court may require the filing of

 

affidavits and the taking of proofs as it considers proper.

 

     (11) For an application under subsection (3), if the applicant

 

proves to the court by a preponderance of the evidence that the

 

conviction was a direct result of his or her being a victim of

 

human trafficking, the court may, subject to the requirements of

 

subsection (12), enter an order setting aside the conviction.

 

     (12) (9) If the court determines that the circumstances and

 

behavior of the an applicant under subsection (1) or (3), 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.

 

     (13) The setting aside of a conviction under this act is a

 

privilege and conditional and is not a right.

 

     (14) (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) "Human trafficking violation" means a violation of chapter

 

LXVIIA of the Michigan penal code, 1931 PA 328, MCL 750.462a to

 

750.462h.

 

     (c) (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.

 

     (d) (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.

 

     (e) (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.

 

     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 this act under

 

section 1(1) 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 that 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 under this

 

act.

 

     Sec. 4. A Except as provided in section 1, a person may have

 

only 1 conviction set aside under this act.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.

 

     Enacting section 2. This amendatory act does not take effect

 

unless House Bill No. 5234 of the 97th Legislature is enacted into

 

law.