questions & answers

Question: I committed forgery 17 years ago and have since had the charge set aside. I am currently going to school for my BSN and am having difficulty getting a fingerprint level one card. What steps do I need to take to receive a pardon or have the felony shown as removed?

Answer: Re-entering one’s community after the completion of a prison sentence is very challenging. Success can be difficult for many reasons. This article addresses one of the steps a person with a felony conviction might take towards overcoming barriers to successful community re-entry. The article provides information about setting aside both felony and misdemeanor convictions, restoring civil rights and restoring gun rights, based on Arizona law.

However it is important to note, that once a felony conviction has been set aside, in Arizona it means the same as having it expunged; therefore after a felony is set aside, there is nothing more once can do to have their record "wiped clean" or removed.

The outcome of any case depends on the unique facts in that case, the laws at the time of conviction, new laws that may apply, and the individual decision-making of the parties involved including the defendant, attorneys, victims, the Court, and any other interested persons. Since the outcome of a case depends on many different things, this article is intended as information only. It is not legal advice. An attorney can provide additional information and legal advice. Therefore, questions about an individual situation should be discussed with an attorney.

 

What is expungement? In Arizona, expungement means the same as “set aside.”

 

What is “set aside”? Set aside means to cancel or revoke a judgment or order. Usually, the original record is modified or changed. The original is still available.

 

What is the difference between an expungement and a set aside?

Generally, something expunged, no longer exists. It is gone. It is wiped out. On the other hand, usually something “set aside” is not destroyed but it is not the same as the original. The original has not vanished. It is not wiped out. In the case of a criminal record, the original may still be available for use.

 

Can expungement and set aside have the same meaning?

Yes. The two terms can be very confusing. One reason for the confusion is that these terms are interchangeable sometimes. In other words, even though they are defined differently, they can also mean the same thing.  Sometimes a record that is “set aside” is called an expunged record. Sometimes a record that is expunged is not wiped out and is actually set aside and can be used again. Note that in Arizona, expungement means the same thing as “set aside.”

 

What does expungement and set aside have to do with criminal convictions?

Expungement and set aside are tools that persons convicted of crimes might be able to use to lessen the negative impact of their criminal conviction and criminal record.

 

Does every state view expungement and “set aside” in the same way?

No. Each individual state decides what expungement and/or set aside means in its state.  States may look to one another to see how laws are defined, but each state makes its own decision about expungement and setting aside criminal convictions. This article only addresses Arizona law.

 

How does Arizona view expungement and “setting aside” convictions?

In Arizona, expungement has the same meaning as setting aside. Expungement does not wipe out the conviction. The record of conviction is not destroyed. For the protection of the public, a conviction may be used to deny certain kinds of employment, licenses, permits, certificates as well as used against a person in future criminal cases, even though the conviction was set aside or expunged.

 

In Arizona, after a conviction is expunged or set aside, does a person have to disclose the expunged conviction on a job application or in a job interview?

A person whose conviction has been set aside or expunged must disclose the conviction if the employment application asks whether the person has a prior conviction. An applicant must report previous conviction of an offense, if asked about prior convictions during a job interview. However, the applicant should also report that the conviction “has been vacated (or set aside) and the charges dismissed.” The court uses this language in setting aside a conviction.

 

Where are Arizona’s laws about expungement and setting aside a conviction?

Arizona does not presently have an ‘expungement’ statute.  The laws about setting aside a conviction are presently found in A.R.S. §§ 13-904 – 912 . A.R.S. § 13-907  permits a person convicted of a felony to request a "set aside" of a felony conviction under certain circumstances. The statutes use the term “set aside the judgment.” An application to have your conviction set aside may use the language “vacate judgment and dismiss charges.” In this situation, “setting aside a conviction,” means the same thing as “vacating judgment and dismissing the charges.”

 

What does a criminal record show when a conviction is set aside or expunged?

The law does not require that a conviction be removed from a person’s criminal record. It is required that the record show that the conviction has been set aside. When a conviction is expunged or set aside in Arizona, a records check will probably show the original charge and conviction. However, it should also show that the judgment was vacated and that an order of dismissal was entered.

 

What are the benefits of having a felony conviction set aside?

For someone convicted of a felony, a set aside can be very important because it has the effect of releasing the defendant from all penalties and disabilities resulting from the conviction with some exceptions. (See A.R.S. §§ 28-3304 – 3308). Although there is a priorfelony conviction, the record also indicates that the person successfully completed all court requirements and the Court vacated the judgment and dismissed the charges. This has the effect of putting the felony offense in a person’s past as long as there are no present or future convictions. The focus moves to the present and to positive attributes, rather than on past transgressions.

 

What are the benefits having a misdemeanor conviction set aside?

For someone convicted of a misdemeanor, the benefits of a set aside are less because misdemeanor convictions do not impose the same restrictions on constitutional rights that a felony does. In addition, a misdemeanor does not carry the same stigma in the community as a felony conviction. Further, there may not be the same barriers to employment and housing. However, some misdemeanor convictions, such as drug convictions, can present obstacles to employment and housing so a set aside may be helpful.

 

Who might be able to set aside a conviction in Arizona?

A set aside may be available if a person was convicted of a felony in an Arizona Superior Court and that person has an absolute discharge from probation or prison. If a person is convicted of a misdemeanor in a Justice or City Court and successfully completes all court orders, that person might be eligible to have the conviction set aside.

                A set aside is not available to a person convicted of a criminal offense:

1. Involving the infliction of serious physical injury,


2. Involving the use or exhibition of a deadly weapon or dangerous instrument,


3. For which the person is required or ordered by the court to register as a sex offender, A.R.S. § 13-3821,  


4.For which there has been a finding of sexual motivation under A.R.S. § 13-118  


5. In which the victim is a minor under 15 years of age, or


6. In violation of A.R.S. § 28-3473, any local ordinance relating to stopping, standing or operation of a vehicle or title 28, chapter 3, except a violation of §28-693 or any local ordinance relating to the same subject matter as A.R.S. § 28-693.


 

What happens if the Court grants a person’s request to set aside a conviction?

If the Court grants the application to set aside a conviction, the Court will set aside the judgment of guilt. The Court will dismiss the accusations or the information (the document that charges a person with a crime). Then the Court will order the person’s release from all penalties and disabilities resulting from the conviction, except:

1.The penalties and disabilities imposed by the department of transportation under A.R.S. §§ 28-3304, 28-3306, 28-3307, 28-3308 or 28-3319, except that the conviction may be used if the conviction would be admissible had it not been set aside;


2. The set aside conviction may be pleaded and proved in any subsequent prosecution of that person for any offense or


3.It may be used by the department of transportation to enforce A.R.S. §§ 28-3304, 28-3306, 28-3307, 28-3308 or 28-3319 as if it had not been set aside.


 

When might a person be eligible to get their civil rights restored after a felony conviction?

A felony conviction results in the suspension of some civil rights which may include the right to vote, hold public office, serve on a jury, and possess firearms. Usually, these civil rights are not suspended for misdemeanor convictions so this process may not apply. Again, the laws change so look at current law and the laws in place when the person was convicted and consider speaking with an attorney.


A person might be able to have civil rights restored if that person has an absolute discharge from probation or if it has been at least two years since that person’s absolute discharge from prison. While the restoration of civil rights may be available to felony offenders convicted in a County Superior Court in Arizona or in federal court, Arizona Courts do not have the authority to set aside convictions or restore guns rights to persons convicted in federal court.

 

Will a person’s gun rights be restored as part of restoring civil rights?

Whether a person’s gun rights are restored may depend upon the date of conviction, any court-ordered terms and that person’s criminal and social history record. The laws may be different now from the laws in place when a person was convicted. Therefore, look at the laws from the time of conviction. If the law is different now, then find out which laws apply to an individual case.


Requests to restore civil rights and restore gun rights are separate orders, but the requests can be submitted to the Court at same time as the request to set aside the conviction.

 

How does a person apply to have a conviction set aside, civil rights restored and gun rights restored?

To restore these rights, a person would file a request with the Superior Court in the county where the conviction occurred. For a federal conviction, a person would submit an application to the Superior Court in the county where that person lives. Instructions for setting aside a conviction, restoring civil rights, and restoring gun rights can be found at the following websites:

•Coconino County: http://coconino.az.gov/index.aspx?NID=869


•Maricopa County: http://www.superiorcourt.maricopa.gov/SuperiorCourt/Self-ServiceCenter/Forms/CriminalCases/index.asp


If the county in which the person was convicted does not have these forms online, contact the Clerk’s Office in the county where the conviction occurred to see which forms could be used.

Remember that the instructions and the legal forms may use the “set-aside” language used in the statutes or it may use the words “vacate the judgment of guilt.” The words in the statute, “set aside judgment,” have the same meaning as the words used in the instructions and on the form “vacate judgment of guilt and dismiss charges”.

 

What happens after a person submits the application to set aside a conviction, to restore civil rights and to restore gun rights?

The Court will review the application and may grant the request, deny the request, set a hearing or set orders the Court believes is appropriate in the person’s case. For questions about the hearing, call the Court that set the hearing or contact an attorney.

 

What can a person do if the Court denies the request?

If the Court denies the request, a person can file a request for reconsideration, depending upon the reason for the denial. Instructions and forms for requesting a reconsideration can be found on the Courts’ websites. A person planning to request a reconsideration may want to discuss the request with an attorney before filing it.