Kirk D. Lewis 0000-00-00 00:00:00
Felony Conviction: Now What? Afelony conviction on a person’s record can have enormous consequences. For starters, a person will lose the right to vote, right to serve as a juror (which I am sure many people will not mind), and the right to possess a firearm – just to name a few. Not only that, but if that person works for the state or government they could then lose their job as a result of the felony conviction. Needless to say, the effects of being convicted of a felony have a lasting impression on a person’s life. For a complete explanation of all rights lost following a felony conviction please refer to A.R.S. § 13-904. There are several avenues that may be taken to remove or clear a felony conviction from a person’s record and have their constitutional rights restored. The first option, and the most difficult, is called post conviction relief and must be sought after, within 90 days of, the sentencing by the judge on a particular matter. Second option, and probably the simplest, is to have the felony conviction lowered to a misdemeanor offense. The third option is to petition the court to set aside the conviction and restore the individual’s civil rights. Granted, there are certain situations where the civil rights of an individual will be automatically restored upon the completion of probation or sentence – See A.R.S. § 13-912. Post-conviction relief can be a very complicated matter for which a person should always consult with a lawyer. In fact, the lawyer will then likely have to consult with another lawyer to figure out how to proceed. If the individual pleaded guilty to a plea agreement and went through with sentencing, the individual will then have 90 days to file a petition for post-conviction relief. The requirements can be found under rule 32 of the Arizona Rules of Criminal Procedure. To briefly summarize the main requirements, 1) there must have been an error committed by the attorney or court that affected the constitutional rights of the individual seeking relief, or 2) if new evidence surfaced that would reasonably have changed the outcome of the case, or 3) if there has been a significant change in the law that would likely result in overturning the individual’s conviction. One thing to keep in mind however, after successfully obtaining post-conviction relief and having the judgment against the individual overturned, the case will return to the courts to be resolved properly, which could ultimately end with a felony conviction. The option of having a felony conviction lowered to a misdemeanor is easily the fastest way to remove a felony from a person’s criminal record. However, this option only applies to a very specific scenario. The individual must have been convicted of a class 6 undesignated felony. The fact that the felony is undesignated is what makes this option possible. Oftentimes, after the individual successfully completes a term of probation, the probation officer will recommend to the judge that the felony be lowered to a misdemeanor due to the individual’s successful completion of probation. Important to note, however, is that the individual should not rely on the recommendation of the probation officer. The judge will not always follow the recommendation of the probation officer and may wait for a request by the individual personally. The process is generally very easy and only requires that the person submit a document requesting the judge to lower the felony charge to a misdemeanor and restore all the civil rights of the individual previously suspended. Ultimately, the judge’s decision to lower the original felony conviction to a misdemeanor will hinge on whether or not the individual successfully completed probation and has not had any subsequent convictions. Lastly, a person convicted of a felony in the state of Arizona may request that the judge set aside the conviction and restore the individual’s civil rights. A person is eligible for this relief so long as they were not convicted of a dangerous felony, not required to register as a sex offender, and not convicted of certain sexual offenses. For a complete list of restrictions see A.R.S. § 13-907(D). Thus, a great majority of individuals with felony convictions can be eligible to have their convictions set aside and removed from their criminal record. It is important to note that pursuant to A.R.S. § 13-908, the Superior Court judge has complete discretion as to whether or not an application to set aside a conviction is granted. For that reason, it is imperative that the application itself be well written and documented so as to give the individual the best opportunity for their application to be granted by the judge. Some key factors to include in the application are whether or not probation was successfully completed, length of time that has passed since the conviction, the individual’s criminal record since the conviction at issue, and the effect the criminal conviction has had on the individual’s life and family. Also, if an attorney is retained to assist the individual with this application, it is required that the applicant give written consent for the attorney to submit the application on their behalf. See A.R.S. § 13-907(B). The end goal is that the judge grants the request and “set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction.” See A.R.S. § 13-907(C). With all the devastation that a felony conviction can wreak on a person’s professional, financial, and family life, it is vital that all those who are so convicted, understand how they can return their lives to as much normalcy as possible.
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