Bill Text: MI SB1148 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Criminal procedure: records; automatic set aside of exonerated crimes; provide for. Amends secs. 1 & 4 of 1965 PA 213 (MCL 780.621 & 780.624) & adds sec. 2a.
Spectrum: Moderate Partisan Bill (Democrat 9-1)
Status: (Introduced - Dead) 2020-09-24 - Referred To Committee On Judiciary And Public Safety [SB1148 Detail]
Download: Michigan-2019-SB1148-Introduced.html
SENATE BILL NO. 1148
September 24, 2020, Introduced by Senators
IRWIN, MCMORROW, POLEHANKI, WOJNO, MOSS, GEISS, BAYER, CHANG, MCBROOM and
SANTANA and referred to the Committee on Judiciary and Public Safety.
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 and 4 (MCL 780.621 and 780.624), section 1 as amended by 2016 PA 336 and section 4 as amended by 2014 PA 335, and by adding section 2a.
the people of the state of michigan enact:
Sec. 1. (1)
Except as provided in this section, 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 1 or more convictions as follows:
(a) A person who is convicted of not more than 1 felony
offense and not more than 2 misdemeanor offenses may petition the convicting
court to set aside the felony offense.
(b) Except as provided in subdivision (c), a person who is
convicted of not more than 2 misdemeanor offenses and no other felony or
misdemeanor offenses may petition the convicting court or the convicting courts
to set aside 1 or both of the misdemeanor convictions.
(c) A person who is convicted of a violation or an attempted
violation of section 520e of the Michigan penal code, 1931 PA 328, MCL
750.520e, before January 12, 2015 may petition the convicting court to set
aside the conviction if the individual has not been convicted of another
offense other than not more than 2 minor offenses. As used in this subdivision,
"minor offense" means a misdemeanor or ordinance violation to which
all of the following apply:
(i) The maximum
permissible term of imprisonment does not exceed 90 days.
(ii) The maximum permissible fine is not more than $1,000.00.
(iii) The person who committed the offense is not more than 21
years old.
(2) A conviction that
was deferred and dismissed under any of the following, whether a misdemeanor or
a felony, shall be is considered
a misdemeanor conviction under subsection (1) for purposes of determining
whether a person is eligible to have any conviction set aside under this act:
(a) Section 703 of the
Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1703.
(b) Section 1070(1)(b)(i) or 1209 of the revised judicature act of 1961, 1961 PA 236,
MCL 600.1070 and 600.1209.
(c) Section 13 of
chapter II or section 4a of chapter IX of the code of criminal procedure, 1927
PA 175, MCL 762.13 and 769.4a.
(d) Section 7411 of the
public health code, 1978 PA 368, MCL 333.7411.
(e) Section 350a or 430
of the Michigan penal code, 1931 PA 328, MCL 750.350a and 750.430.
(f) Any other law or
laws of this state or of a political subdivision of this state similar in
nature and applicability to those listed in this subsection that provide for
the deferral and dismissal of a felony or misdemeanor charge.
(3) A person shall not
apply to have set aside, and a judge shall not set aside, a conviction for any
of the following:
(a) 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.
(b) A violation or
attempted violation of section 136b(3), 136d(1)(b) or (c), 145c, 145d, 520c,
520d, or 520g of the Michigan penal code, 1931 PA 328, MCL 750.136b, 750.136d,
750.145c, 750.145d, 750.520c, 750.520d, and 750.520g.
(c) A violation or
attempted violation of section 520e of the Michigan penal code, 1931 PA 328,
MCL 750.520e, if the conviction occurred on or after January 12, 2015.
(d) A traffic offense,
including, but not limited to, a conviction for operating while intoxicated.
(e) A felony conviction
for domestic violence, if the person has a previous misdemeanor conviction for
domestic violence.
(f) A violation of
former section 462i or 462j or chapter LXVIIA or chapter LXXXIII-A of the
Michigan penal code, 1938 PA 321, 1931 PA 328, MCL 750.462a to 750.462h and 750.543a to
750.543z.
(4) 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, or a local ordinance
substantially corresponding to 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.
(5) An application under
subsection (1) shall only be filed 5 or more years after whichever of the
following events occurs last:
(a) Imposition of the
sentence for the conviction that the applicant seeks to set aside.
(b) Completion of
probation imposed for the conviction that the applicant seeks to set aside.
(c) Discharge from
parole imposed for the conviction that the applicant seeks to set aside.
(d) Completion of any term
of imprisonment imposed for the conviction that the applicant seeks to set
aside.
(6) If a petition under
this act is denied by the convicting court, a person shall not file another
petition concerning the same conviction or convictions with the convicting
court until 3 years after the date the convicting court denies the previous
petition, unless the court specifies an earlier date for filing another
petition in the order denying the petition.
(7) An application under
subsection (4) 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 (4).
(8) An application under
this section is invalid unless it contains the following information and is
signed under oath by the person whose conviction is or convictions are to be
set aside:
(a) The full name and
current address of the applicant.
(b) A certified record
of each conviction that is to be set aside.
(c) For an application
under subsection (1), a statement that the applicant has not been convicted of
an offense other than the conviction or convictions sought to be set aside as a
result of this application and any nondisqualifying misdemeanor convictions
described in subsection (1)(a).
(d) A statement listing
all actions enumerated in subsection (2) that were initiated against the
applicant and have been dismissed.
(e) A statement as to
whether the applicant has previously filed an application to set aside this or other another conviction
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) If the person is
seeking to have 1 or more convictions set aside under subsection (4), a
statement that he or she meets the criteria set forth in subsection (4),
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.
(h) A consent to the use
of the nonpublic record created under section 3 to the extent authorized by
section 3.
(9) The applicant shall
submit a copy of the application and 1 complete set 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 an electronic copy of 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.
(10) The copy of the
application submitted to the department of state police under subsection (9) shall must be
accompanied by a fee of $50.00 payable to the state of Michigan that shall must be used by
the department of state police to defray the expenses incurred in processing
the application.
(11) A copy of the
application shall must be
served upon the attorney general and upon the office of each prosecuting
attorney who prosecuted the crime or crimes the applicant seeks to set aside,
and an opportunity shall must
be given to the attorney general and to the prosecuting attorney to
contest the application. If a 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 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 must 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.
(12) 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.
(13) For an application
under subsection (4), 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 (14), enter an order setting aside the conviction.
(14) If the court
determines that the circumstances and behavior of an applicant under subsection
(1) or (4), from the date of the applicant's conviction or convictions to the
filing of the application warrant setting aside the conviction or convictions,
and that setting aside the conviction or convictions is consistent with the
public welfare, the court may enter an order setting aside the conviction or
convictions.
(15) The setting aside
of a conviction or convictions under this act is a privilege and conditional
and is not a right.
(16) The limit on the number and type of convictions that may
be set aside under this section as well as the procedural requirements to file
a petition to set aside a conviction under this section do not apply to a
conviction that is set aside without an application under section 2a.
(17) (16) 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) "Domestic
violence" means that term as defined in section 1 of 1978 PA 389, MCL
400.1501.
(c) "Felony"
means either of the following, as applicable:
(i) For purposes of the offense to be set aside, felony means a
violation of a penal law of this state that is punishable by imprisonment for
more than 1 year or that is designated by law to be a felony.
(ii) For purposes of identifying a prior offense, felony means a
violation of a penal law of this state, of another state, or of the United
States that is punishable by imprisonment for more than 1 year or is designated
by law to be a felony.
(d) "Human
trafficking violation" means a violation of chapter LXVIIA of the Michigan
penal code, 1931 PA 328, MCL 750.462a to 750.462h, or
former section 46i or 4622j of that act.
(e) "Indian
tribe" means an Indian tribe, Indian band, or Alaskan native village that
is recognized by federal law or formally acknowledged by a state.
(f)
"Misdemeanor" means a violation of any of the following:
(i) A penal law of this state, another state, an Indian tribe,
or the United States that is not a felony.
(ii) An order, rule, or regulation of a state agency that is
punishable by imprisonment for not more than 1 year or a fine that is not a
civil fine, or both.
(iii) A local ordinance of a political subdivision of this state
substantially corresponding to a crime listed in subparagraph (i) or (ii) that is not a felony.
(iv) A violation of the law of another state or political
subdivision of another state substantially corresponding to a crime listed
under subparagraph (i) or (ii) that is not a felony.
(v) A violation of the law of the United States substantially
corresponding to a crime listed under subparagraph (i) or (ii) that is not a felony.
(g) "Operating
while intoxicated" means a violation of any of the following:
(i) Section 625 or 625m of the Michigan vehicle code, 1949 PA
300, MCL 257.625 and 257.625m.
(ii) A local ordinance substantially corresponding to a
violation listed in subparagraph (i).
(iii) A law of an Indian tribe substantially corresponding to a
violation listed in subparagraph (i).
(iv) A law of another state substantially corresponding to a
violation listed in subparagraph (i).
(v) A law of the United States substantially corresponding to a
violation listed in subparagraph (i).
(h) "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.
(i) "Victim"
means that term as defined in sections 2, 31, and 61 of the William Van
Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.752, 780.781, and
780.811.
Sec. 2a. (1) Beginning on January 1,
2021, if a person is exonerated of a criminal conviction in this state, the
conviction of which he or she is exonerated must be set aside under this
section without an application.
(2) As used in
this section, "exonerated" means a person convicted of a crime is
officially cleared of that conviction by a reversal or vacation of the judgment
of conviction, dismissal of the charges, a finding of not guilty, or
gubernatorial pardon based on new evidence of innocence.
Sec. 4. Except as provided in section 1 and 2a, a person may have only 1 conviction set aside under this act.