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Set Aside Criminal Conviction in Arizona – How it Helps and Who Qualifies

Set Aside Criminal Conviction in Arizona – How it Helps and Who Qualifies

Arizonans who have criminal records may have to contend with many obstacles when they are looking for jobs or housing. While many states offer the ability to expunge criminal records, Arizona does not have an expungement statute. Instead, it has a different process that people might undergo to attain post-conviction relief from their prior convictions. This process is known as Restoration of Civil Rights and also to have Criminal Convictions Set Aside.

People who have felony convictions on their records are also unable to serve on juries or to own or possess firearms unless their civil rights have been set aside.

This article discusses the following topics below:

  1. Why consider filing a petition to set aside
  2. What does expungement and set aside mean?
  3. The process
  4. After the courts set aside a conviction
  5. Who does not qualify
  6. How long does the process take?
  7. Background checks
  8. How Attorneys can help

 


Why Consider Filing a Petitions to Set Aside a Conviction?

If you have a felony conviction on your record, it makes sense for you to file a petition to set it aside. People who have felony convictions may be unable to own weapons or to serve on juries. They may also fail to pass background checks for employment and for apartments. Some types of convictions may also make them ineligible for certain types of financial aid for higher education.

Setting your record aside may restore your civil rights. While you will have to disclose that you had a conviction, employers will not pay as much attention to it when a court has granted your petition and has set it aside. This might make it easier for you to secure employment and housing so that you can move forward with your life.

If you have a prior misdemeanor conviction, it may not make as much sense to ask for the court to set your misdemeanor aside. Most misdemeanor convictions will not cause you to lose your civil rights. Your attorney at DM Cantor can help you to decide whether it makes sense for you to file a petition to set your misdemeanor or felony conviction aside.

In a recent survey, ” SHRM found that while there is a willingness to hire people with criminal records, only 5 percent of managers and 3 percent of HR professionals said their company actively recruits people with criminal records.

Click to EnlargeDo companies hire employees with a criminal record?

 

Read More about Criminal Records Set Aside / Expungement…


What are my Options After a Conviction?

Just because you have been convicted of a crime does not mean that you have lost your case entirely. There is a Post Conviction Issues/Appeals process that seeks to overturn your conviction or modify the terms of a sentence. If you have lost civil rights due to a conviction, such as the right to vote, these right can sometimes be restored. An experienced criminal defense attorney can appeal your case in order to seek a more favorable outcome.

Post Conviction Relief Arizona: Filing PCR Petitions:
If a Defendant feels that he had ineffective assistance of counsel (this usually occurs with public defender cases); newly discovered evidence has been found which supports his innocence; or there has been a substantive change in the law, then he can file a “Post Conviction Relief Petition” (PCR).


Read more on Post Conviction Relief in Arizona.

Appeals:
A Defendant has 14 days from the date of their sentencing to file a “Notice of Appeal”. Also filed along with that is a “Designation of Record”. This will designate all of the documents and court reporter transcripts which will be necessary for the appeal. The higher court then issues a “Briefing Schedule” which gives time limits on when the “Appellant’s Brief” is to be filed.


Read more on Appeals.

Habeas Corpus:
“Habeas Corpus” is a Latin term for “that you have the body”. A Writ of Habeas Corpus is a motion which is filed most frequently to ensure that a Defendant’s imprisonment or detention is not illegal. It is sometimes used to test the legalities of an arrest or a commitment.

Read more on Habeas Corpus.

Sentence Modifications:
A “Motion to Modify Sentence” or “Motion to Modify Probation” can be filed at any time after the original Sentencing has occurred. Sometimes this can be as simple as asking for monthly probation fee or restitution fee to be reduced due to the financial hardship on a Defendant. Other times, it can include the deferral or deletion of jail time which was scheduled to begin at a future date.

Read more on Sentence Modifications.

Petition for Early Termination of Probation:
It is possible to terminate the probation in many cases when the Defendant has served approximately 50% of his probation term. In some cases, this can be done at a much earlier date. In fact, we have had numerous cases where a person has been placed on “lifetime probation” and we have had them terminated at a much earlier date (in one case, after a mere year and a half (1.5 years) from the date of sentencing).

Read more on Petition for Early Termination of Probation.

Expungement / Restoration of Civil Rights:
In Arizona, there is no such thing as a “Expungement”. However, Arizona does provide for what is known as a “Judgment of Guilt Set Aside” and a “Restoration of Civil Rights”. In essence, if the Judge grants the Motion to Set Aside Judgment of Guilt, then a Defendant can tell people that he has not previously been convicted of a crime.


Read more on Expungement / Restoration of Civil Rights.

Arizona Rule 32:
Under rule 32 of the Arizona Rules of Criminal Procedure, an individual may appeal a conviction for one of three reasons: ineffective assistance of counsel, newly discovered evidence, or substantive change of law. Ineffective assistance of counsel refers to situations in which a defendant’s lawyer provided unprofessional or substandard representation that materially affected the outcome of the court proceedings. It is not enough to prove that a defendant received poor representation; you must also prove that the outcome of the case would have been better had you received more effective counsel.


Read more on Arizona Rule 32.

If there is an avenue for an Appeal of your case or a way to modify the terms of a conviction, the Cantor Criminal Defense Attorneys will find it and utilize it to your benefit.

The Cantor Arizona Defense Lawyers Team – BEYOND AGGRESSIVE!!!

It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®). Also David Michael Cantor is an Arizona Defense Lawyer and a Certified Criminal Law Specialist, per the Arizona Board of Legal Specialization. In addition, the Firm and all of it’s lawyers are listed in the Bar Register of Preeminent Lawyers®. At the Law Offices of David Michael Cantor, P.C., the majority of our Attorneys are ex-Prosecutors, and all of our Arizona Defense Lawyers know the system well. For a free initial consultation, call us at 1-888-822-6867, or click here to contact us now.

The Criminal Defense Attorneys on the Cantor Team offer BEYOND AGGRESSIVE legal defense for Appeals and Post Conviction Relief issues in all courts in the Phoenix metro area, including Scottsdale, Mesa, Tempe, Glendale, Goodyear, Chandler, Gilbert, Fountain Hills, Buckeye, Avondale, Paradise Valley, Peoria, Surprise, Sun City, El Mirage and in all city, state and federal court jurisdictions throughout the State of Arizona.

Contact DM Cantor and speak to an Arizona Defense Lawyer about your case. We will assist you with your Post Conviction Issues.


Expungement (Set Aside): Eligibility & Requirements

If you have a criminal record, it can make things quite complicated for you later in life. More and more today, businesses and employers are conducting background checks on applicants. If a landlord or employer finds that you have been arrested or convicted in the past, it can be difficult or even impossible to secure a home or job.

What Does it Mean to Expunge Records or to Set Aside?

If you have a criminal record, do not fret. You may able to erase, or seal, arrests or convictions from your record through a process known as expungement. While the details pertaining to expungement vary from one state to another, when you have your records sealed, you do not have to disclose them to such persons as landlords or employers. Expungement has other known names and meanings, such as Set Aside and Restoration of Rights.

Who is Eligible for Expungement?

Expungement procedures and eligibility requirements vary from one jurisdiction to the next. Thus, it is best to check with your county’s clerk of court to find out if you are eligible and what you need to do. You do not necessarily need to hire a lawyer to request an expungement. You simply need to fill out and submit a “Motion for Expungement.”

Most jurisdictions only allow for misdemeanor arrests and convictions to be expunged. Additionally, you can only request to seal your records after you have finished serving your sentence and probation. However, if you have a good reason for wanting your records sealed, you may be able to get your probation shortened.

What is a Certificate of Actual Innocence?

A Certificate of Actual Innocence is a form of expungement that not only seals your records, but it also states that they should have never even existed. This is a great option in cases where you were found not guilty or your charges were dropped at a later date. This certificate shows that you were innocent of the offense in question.

Offenses That are Easiest to Expunge

In most jurisdictions, if you were arrested or convicted of a drug or juvenile crime, you will have an easy path to expungement. The reason that drug offenses are easily expunged is because in most cases, you will be eligible for a diversion program, which usually provides for an automatic expungement once you complete the classes.

Juvenile offenses are often easily expunged after you turn 18. In fact, some jurisdictions automatically seal records after you turn a certain age. However, felonies cannot be expunged, and for you to seal your records, you cannot have any arrests or convictions after your juvenile offenses.

Is Expungement Always Beneficial?

In most cases, expungement is highly beneficial. However, there are a few cases in which your records can be accessed even if you had them sealed. Examples of this are if you choose to apply for a professional license or if you want to work in the field of law enforcement. With so many fantastic benefits though, expungement is certainly a great way to begin a new life. At DM Cantor, we have helped hundreds of people with this process. Check out our Expungement Victories section of our website.


Effective Assistance in Post-Conviction Appeal


Today David Michael Cantor a Phoenix Criminal Defense Attorney talks about a brief filed by the American Bar Association with the Supreme Court regarding ineffective council. This could dramatically effect how Post Conviction Relief is handled and help to reduce the time an innocent person spends in the justice system. In Arizona it is known as a Rule 32 Post Conviction Relief Petition.

Here is the story from the American Bar Association:
“A defendant’s fair trial right isn’t protected if he receives ineffective assistance of counsel at the trial stage and again at his first appellate opportunity to raise the claim, the ABA contends in an amicus brief filed with the U.S. Supreme Court.

The ABA filed the brief (PDF) in a Supreme Court appeal by Luis Mariano Martinez, who was convicted of sexual contact with a minor in Arizona. The brief cites the ABA Criminal Justice Standards, according to a press release.

“Many states, including Arizona, designate post-conviction proceedings as the preferred or mandatory forum for litigating an ineffective of assistance of trial claim … for the first time,” the ABA brief says. “The ABA respectfully asserts that counsel representing a defendant at that proceeding should provide the same quality of representation—that is, effective assistance of counsel—as is constitutionally required of counsel at trial.”

Martinez claims his trial lawyer failed to object to inaccurate testimony by a prosecution expert about the reasons for victim recantations. He claims his appellate lawyer filed a notice of post-conviction relief saying she could find no colorable claims, and she didn’t tell him about the filing or his need to file a pro se petition within 45 days.

SCOTUSblog has called the cert grant in Martinez v. Ryan “a big deal in habeas law.””


Post Conviction Relief Petition Arizona Rule 32

Arizona Rule 32

Arizona Criminal Attorney David Cantor discusses Post Conviction Relief Petition for Justification and recent changes to the Arizona Rule 32 Law. This is an important issue for anyone involved in a case where something like self defense was involved in a violent crime. In Arizona prior to 2006 is was the burden of the defendant to prove they had justification of self defense. After 2006 the burden was shifted to the state to prove that there was no justification for self defense.

If you or someone you know was convicted of a crime and justification was involved in the defense prior to 2006 and after 1997 then you should contact us immediately. Whether you are done with the sentence or still serving time we can work to either expunge your record, plea it down to a lesser charge, or some other option. Call us today at 602-307-0808 and let us take a look at your case to let you know if Arizona Rule 32 applies or if something can be done.


Employment Application and Your Criminal Past

Arizona Criminal Attorney David Cantor talks about handling your Criminal Past on an Employment application. It is important that you understand how different questions apply to your past. You should also have a good understanding of how your various criminal indictments will show up on a background check so that you are always up front and honest with a potential employer.


Click to Watch Important Questions to Ask when Hiring a Lawyer

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