Marie Matyjaszek: Getting rid of that record

Occasionally we all do something we regret and wish it could be erased from the memory of those who witnessed it. Past criminal acts certainly fit into this category, and if you meet certain qualifications, those acts can disappear from the public's eye.

If you're looking to set aside a criminal conviction, also called an "expungement," the State Court Administrator's Office (SCAO) has a great packet which includes eligibility questions, instructions and forms to help you do this.

The forms you will need are MC 227 (Application to Set Aside Conviction) and MC 228 (Order on Application to Set Aside Conviction). I can't explain everything in my article, so obtaining this packet will give you extensive details and instructions as to what to do, and the great internet will provide you with the packet at the click of a button.

In order to be eligible to set your conviction aside, you must only have ONE conviction in your past, not including two minor offenses, as set forth in MCL 780.621(10)(b). If you have a conviction from a federal court or another state, you're not going to be able to apply. The type of crime committed also makes a difference. For example, you cannot have been convicted of CSC (Criminal Sexual Conduct) in the first, second, or third degree, nor can you apply if you were convicted of an assault with intent to commit a CSC crime.

Being convicted of a felony or an attempt to commit a felony, where the potential max sentence is life behind bars, will bar you from an expungement as well. Wanting to erase a driving or traffic offense is also a no go, and it must be at least five years from the date of your conviction and if you were thrown behind bars, at least five years after you were released from the clink.

If you don't fall into one of the categories above that exclude you from applying to set your conviction aside, you can likely get 'er done. Now you have a little to-do list in order to set this in motion. You first need to obtain a certified copy of your conviction, which is relatively easy. Simply go to the clerk's office and obtain a certified copy of the Judgment of Sentence, Order of Probation or Register of Actions in your case. You will be charged a fee for this document, so bring some loot with you to pay up.

Your next step is to head to a local police department for some fun finger painting--I mean fingerprinting. The department will likely charge you a fee for this, but it's usually not too bad. Not surprisingly, the State Police will be checking on you and using these prints to determine if you have other convictions. You'd be amazed at how many people claim to have forgotten about prior convictions or say they didn't know they had them.

Once you have your certified copy and fingerprints, you need to sit down and fill out form MC 227 carefully and make the appropriate number of copies (all explained in the handy packet). You must sign this form in front of a notary public or court clerk, file your application, paying another fee ($50 this time) and mail it out to the appropriate parties (prosecutor, attorney general and state police). You've got to file a Proof of Service with the court to prove that you served the docs on the above parties.

It's wise to wait to set your hearing until you have received your Michigan State Police background check report, or six to eight weeks from the time you file your application.

Be aware that both the prosecutor and attorney general may attend and object to your application, and the victims of certain crimes can also appear, as the prosecutor has to notify them of your application. The court will make the ultimate decision as to whether or not your application should be granted, which is why you need to bring form MC 228, the Order on Application to Set Aside Conviction, with you to the hearing.

If the state police report came back indicating no other crimes, and the prosecutor and attorney general have not objected to your application, there's a good chance you're going to get your wish. If there are objections, you may still have your conviction set aside provided you have good evidence of how you have changed and a good argument as to why this should occur.

The court clerk should send the copy of the order to the appropriate parties, but I'd suggest making sure this happens, and if your application was granted, check your record to verify that your conviction no longer appears. Again, do realize that the state police will still keep a nonpublic record of your conviction. But to the public, it will look as though it never happened.

The author is an associate attorney at the Law Office of Robert Matyjaszek, PLLC, Jackson, Michigan. Her blog site is: http://legalbling.blogspot.com. She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.

Published: Mon, Nov 26, 2012

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