The Motion to Set Aside – Cleaning Your Client’s Record

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Several times a week I receive a call from someone previously convicted wanting to “clean up,” seal or expunge their criminal conviction. Even though they may have completed the terms of their sentence, those convicted still have difficulty finding employment, housing, cleaning their credit records, and even removing their names from news reports, blogs, etc.

Unfortunately, Arizona offers little in the way of scrubbing one’s prior convictions. Everyone’s situation is different, but there are still some basic steps that can be taken to clean their criminal record and have their rights reinstated.

SETTING ASIDE THE CONVICTION

Arizona does not recognize expungements. Rather, the only relief permitted in Arizona is the motion to set aside one’s conviction. As provided for in ARS 13-907, upon application by the probation officer, defense counsel or the defendant, the court of conviction can grant the application to set aside the conviction. And, when granted, the judge shall “…dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction.” ARS 13-907(C).

Interestingly, there are no case citations that discuss the language or help in defining “penalties and disabilities.” And, for that reason, even after setting aside a conviction, it is troublesome when my clients still have issues when applying for housing, employment, credit, etc. The disabilities appear to still be in play. But at least they can argue that the prior conviction should carry no weight as they no longer have a “conviction.”

Not everyone will qualify to have their conviction set aside. ARS 13-907 specifically excludes anyone from applying if their prior conviction was for a crime involving a dangerous offense, a crime that required registration as a sex offender, a crime that involved sexual motivation, a crime in which the victim was under 15, or violations under the motor vehicle code set forth in ARS 28- 3304, 3306, 3307, 3308, 3319, and 3473 (all involving some form of driving suspended or restriction on their driving privileges) and 28- 693 (reckless driving).

APPLICATION POSSIBLE UPON COMPLETION OF THEIR SENTENCE

The application to set aside any conviction may not be made until the individual has completed all terms of their sentence. I have filed the motion immediately after paying a fine in a misdemeanor matter. I have filed it immediately after the person has been discharged from probation or their community supervision following a prison sentence. However, in many cases, the simple fact they completed their sentence successfully may not be sufficient. Many courts will not consider or grant the motion for a period of time beyond the completion of their sentence.

In most misdemeanor courts, the courts have their own forms that can be easily completed and filed. However, as the motion is within the court’s discretion, I normally recommend against filing a generic motion. Especially if you are filing the motion immediately after completing the terms of any period of probation, I recommend filing a formal motion that is supported by character letters and other documentation. You need to demonstrate to the court how the client has changed their lifestyle, learned their lesson or modified their behavior.

By filing the request with the reasons supporting it attached, you can hopefully avoid any doubt or arbitrary reason a court may deny the application.

SIMPLE PROBLEMS TO AVOID

Confirm Conviction – You need to determine if they actually had a conviction. In many cases, these individuals are requesting to clean their record when they actually have never been convicted. They believe they have a record because their case was charged, prosecuted and hopefully dismissed. However, they confuse the public entry of court documents and status as a criminal record. But that is not the case.

This frequently happens when they have had their charges dismissed as a result of satisfying the terms of a deferred prosecution program. But because they successfully completed the program, there was no formal conviction ever entered. As a result, there is no conviction to be cleared.

Out of State – The application needs to be in the court of conviction. Sounds simple, but I receive several inquiries from individuals that now live in Arizona who were convicted outside the state.

REINSTATEMENT OF RIGHTS

Separate from the application to set aside, you can also petition the court to have your client’s rights reinstated. Set forth in ARS 13- 912, any person who has not previously been convicted shall automatically have their rights reinstated upon completing their term of probation or receiving their absolute discharge from prison. The one exception concerns one’s right to possess weapons. This is a separate application made pursuant to ARS 13-905.

There are other ways to try and clean your clients’ record, but this is the least we should be doing to assist our clients

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