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Posted on November 9, 2023 in

Once you have completed your sentence after a criminal conviction, you may be qualified for a Set Aside. The article provides information about setting aside both felony and misdemeanor convictions, restoring civil rights and restoring gun rights, based on Arizona law.

A Set Aside is not guaranteed because each case is unique. Being granted a Set Aside depends on the laws at the time of conviction and on the judge’s discretion. Since many different things are taken into consideration, it is important to acquire the services of a skilled attorney who will be able to enlighten you depending on your circumstances.

What is “set aside”?

A Set Aside does not seal your criminal records but it will reflect the fact that you have served your sentence and probation, settled all fines related to your charge, and that there are no pending charges.

A Set Aside is not similar to an expungement: Arizona has no expungement laws. As opposed to expungement laws where convictions are “erased” or “sealed” and may not be viewed unless there is a court order, in Arizona, all records in relation to the court system can be found online. As such, anybody can search your record and will still see a conviction, but there is a notation of a “Set Aside”

The laws about setting aside a conviction are found in. A.R.S. § 13-907  which allows a person convicted of a felony or misdemeanor to request a “set aside” of the conviction under certain circumstances.

Can Set Aside be granted in Arizona for a crime committed in another state?

No. The definition of expungement or set aside as well as the procedure for getting an arrest or conviction expunged, will vary according to the state or county in which the arrest or conviction occurred.

What is the impression of prospective employers and landlords on Set Asides?

Different companies have different policies and some employers look at Set Asides very positively.  In some cases, they request that an applicant receive a Set Aside. However, other prospective employers, or even landlords are not as flexible and will only look at the conviction.

An expunged arrest or conviction is not necessarily wiped out, in the literal sense of the word. An expungement will usually be accessible to government agencies, including law enforcement and the criminal courts. This means that your  criminal record is “under seal.” 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.

In Arizona, after a conviction is set aside, does a person have to disclose the conviction when filling out an application for a job or apartment?

Yes. While disclosing the information is your own discretion, the record of the conviction remains accessible online. There are state and local government agencies and some private employers who remove this question about the criminal record and only ask about criminal convictions at the in-person interview. Doing so allows the applicant to explain any interaction with the criminal court system.

Who are eligible to set aside a conviction in Arizona?

A person convicted in an Arizona court and who has served the sentence and  paid the fines and fees may request for a set aside, unless he is convicted of a criminal offense of the following nature:

  • Infliction of serious physical injury,
  • Use or exhibition of a deadly weapon or dangerous instrument,
  • Any crime where the person is required or ordered by the court to register as a sex offender
  • Any offense for which there has been a finding of sexual motivation under A.R.S. § 13-118
  • If the victim is a minor under 15 years of age, or
  • If 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 application to set aside a conviction?

If the Court grants the request to set aside a conviction, the Court will set aside the judgment of guilt.  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 qualified to get their civil rights restored after a felony conviction?

Some civil rights which may include the right to vote, hold public office, serve on a jury, and possess firearms are suspended because of a felony conviction. Typically, these civil rights are not suspended for misdemeanor convictions. Once you have completed probation or served your sentence, your civil rights will be automatically restored automatically. However, in cases where you are convicted for more than one felony, it is necessary to apply for restoration of your civil rights. You can apply for your civil rights for cases that you cannot get Set Aside.

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 gun rights to persons convicted in federal court.

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

The restoration of gun rights depends on the date of conviction, any subsequent convictions, and the judge’s discretion.

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 should 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. Talk to our experienced criminal defense lawyers at Howard Snader Law Office for more information about the process.

For people who are convicted in a County Superior court, there are forms available online.  Get in touch with the Clerk’s Office in the county where the conviction occurred to see which forms could be used. Otherwise, feel free to call our criminal defense lawyers.

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

The application will be reviews by the Court. They may or may not grant the request or set a hearing in some counties or set orders the Court believes is apt for a person’s case. For questions about the hearing, call the Court that set the hearing or contact our attorneys.

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

If the Court denies the request, a person can file a motion for reconsideration, depending upon the reason for the denial. It is best to talk to an attorney before considering filing a request reconsideration.

If you intend to apply for a set aside, below are our contact details. Our competent criminal defense lawyers will be very much willing to assist you in your case.