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REFERENCE TITLE: criminal conviction;
set aside; applicability |
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State of
Arizona House of
Representatives Fifty-fourth
Legislature Second Regular
Session 2020 |
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HB 2402 |
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Introduced by Representatives Roberts: Weninger, Allen J, Biasiucci, Blackman,
Blanc, Butler, Campbell, Carroll, Cook, DeGrazia, Engel, Finchem, Longdon,
Powers Hannley, Rodriguez, Shah, Toma |
AN ACT
amending section
13‑905, Arizona Revised Statutes; relating to criminal convictions.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-905, Arizona Revised Statutes, is amended to read:
13-905. Setting aside judgment of convicted person on discharge; application; release from disabilities; firearm possession; exceptions
A. Except as provided in subsection K N of this section, every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the court to have the judgment of guilt set aside. The convicted person shall be informed of this right at the time of sentencing. The court may issue an order that includes a certificate of second chance to a person whose judgment of guilt is set aside pursuant to subsection K or L of this section.
B. The person or the person's attorney or probation officer may apply to set aside the judgment. The clerk of the court may not charge a filing fee for an application to have a judgment of guilt set aside.
C. The court shall consider the following factors when determining whether to set aside the conviction:
1. The nature and circumstances of the offense that the conviction is based on.
2. The applicant's compliance with the conditions of probation, the sentence imposed and any state department of corrections' rules or regulations, if applicable.
3. Any prior or subsequent convictions.
4. The victim's input and the status of victim restitution, if any.
5. The length of time that has elapsed since the completion of the applicant's sentence.
6. The applicant's age at the time of the conviction.
7. Any other factor that is relevant to the application.
D. If the application is granted, the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person be released from all penalties and disabilities resulting from the conviction except those imposed by:
1. The department of transportation pursuant to section 28‑3304, 28‑3305, 28‑3306, 28‑3307, 28‑3308, 28‑3312 or 28‑3319.
2. The game and fish commission pursuant to section 17‑314 or 17‑340.
E. A conviction that is set aside may be:
1. Used as a conviction if the conviction would be admissible had it not been set aside.
2. Alleged as an element of an offense.
3. Used as a prior conviction.
4. Pleaded and proved in any subsequent prosecution of the person by this state or any political subdivision of this state for any offense.
5. Used by the department of transportation in enforcing section 28‑3304, 28‑3305, 28‑3306, 28‑3307, 28‑3308, 28‑3312 or 28‑3319 as if the judgment of guilt had not been set aside.
F. The clerk of the court must notify the department of public safety if a conviction is set aside. The department of public safety must update the person's criminal history with an annotation that the conviction has been set aside and, if applicable, a certificate of second chance has been issued but may not redact or remove any part of the person's record.
G. This section does not:
1. Require a law enforcement agency to redact or remove a record or information from the record of a person whose conviction is set aside.
2. Preclude the department of public safety or the board of fingerprinting from considering a conviction that has been set aside when evaluating an application for a fingerprint clearance card pursuant to section 41‑1758.03 or 41‑1758.07.
H. If the state or the victim objects
to an application to have a judgment of guilt set aside, an objection to the
application must be filed within thirty days after the application is filed
with the court. If an objection is
filed, the court may set a hearing.
H. I. If the court denies an application to have a judgment of guilt set aside, the court shall state its reasons for the denial in writing and on the record.
I. J. A victim has the right to be present and be heard at any proceeding in which the defendant has filed an application to have a judgment of guilt set aside pursuant to this section. If the victim has made a request for postconviction notice, the attorney for the state shall provide the victim with notice of the defendant's application, whether the person is eligible for a certificate of second chance and of the rights provided to the victim in this section.
K. If the
court grants the application to set aside the judgment of guilt, the court's
order Must Include a certificate of second chance if the person has not
previously received a certificate of second chance and the person was CONVICTED
of a misdemeanor, if the person was convicted of a class 4, 5 or 6 felony and
at least two years have elapsed since the person fulfilled the conditions of
probation or sentence or if the person was convicted of a class 2 or 3 felony
and at least five years have elapsed since the person fulfilled the conditions
of probation or sentence. The
certificate of second chance:
1. Unless specifically excluded by
this section, Releases the person from all barriers and disabilities in
obtaining an occupational license issued under title 32 that resulted from the
conviction if the person is otherwise qualified.
2. In addition to the protections
included in section 12‑558.03, Releases an employer from liability for
negligently hiring or independently contracting for services from the person if
the theory of the employer's liability is premised on the existence of the
person's prior criminal offense.
3. Releases a person or entity from
LIABILITY for providing housing to the person if the theory of the person's or
entity's liability is premised on the existence of the person's prior criminal
offense.
4. Is not a recommendation or
sponsorship for or a promotion of the person who possesses the certificate of
second chance when applying for an occupational license, employment or housing.
L. If the court does not issue an
order that includes a certificate of second chance when the person's conviction
is set aside, the person may apply to the court for a certificate of second
chance after meeting the requirements prescribed in subsection K of this
section. If a victim has made a request for postconviction notice,
the attorney for the state shall provide the victim with notice of the person's
application for a certificate of second chance and the victim's rights under
this section.
J. M. Notwithstanding section 13‑910, if a conviction is set aside, the person's right to possess a firearm is restored. This subsection does not apply to a person who was convicted of a serious offense as defined in section 13‑706.
K. N. This section does not apply to a person who was convicted of any of the following:
1. A dangerous offense.
2. An offense for which the person is required or ordered by the court to register pursuant to section 13‑3821.
3. An offense for which there has been a finding of sexual motivation pursuant to section 13‑118.
4. A felony offense in which the victim is a minor under fifteen years of age.
5. An offense in violation of section 28‑3473,
any local ordinance relating to stopping, standing or operation of a vehicle or
title 28, chapter 3, except a violation of section 28‑693 or any local
ordinance relating to the same subject matter as section 28‑693.