Bill Text: MI HB5025 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Criminal procedure; expunction; victim of human trafficking to set aside certain prostitution convictions; allow under certain circumstances. Amends secs. 1, 2 & 4 of 1965 PA 213 (MCL 780.621 et seq.). TIE BAR WITH: HB 5234'14
Spectrum: Slight Partisan Bill (Republican 6-2)
Status: (Passed) 2014-10-22 - Assigned Pa 335'14 With Immediate Effect [HB5025 Detail]
Download: Michigan-2013-HB5025-Introduced.html
HOUSE BILL No. 5025
October 1, 2013, Introduced by Reps. Heise, Kowall, Zorn, Jenkins, Cavanagh, Tlaib, Crawford and Goike 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 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, or 750.450, may apply to have that conviction set aside if
both of the following apply:
(a) He or she committed the offense while he or she was a
victim of a human trafficking violation.
(b) He or she committed the offense only because of his or her
status as a victim of that human trafficking violation.
(4) (3)
An application under subsection (2) 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 (2), 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).
(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 the hearing of the application
the court may
require the filing of affidavits and the taking of proofs as it
considers proper.
(11) (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.
(12) (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
750.462j.
(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 under section 1(2)
of this act 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. If the
conviction set aside under section 1(3) 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 not considered to have been
convicted of that offense for purposes of 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.
