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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…


Miranda Rights – Your Right to Remain Silent

Miranda Rights – Your Right to Remain Silent

If you have ever watched law enforcement drama shows on television such as “Cops,” you have likely heard about the Miranda rights being read to someone. This common phrase starts with “you have the right to remain silent.” In these shows, the police officers routinely read people their rights when they take them into custody. You may be unfamiliar with why the Miranda warnings are read and what they are meant to protect. Here is what you need to know about your Miranda rights when you are stopped and questioned by the police in Arizona. Keep in mind, if facing charges, speaking with a defense attorney could mean the difference between freedom and incarceration.

This article discusses:

  • What are your Miranda Rights and How do they protect you?
  • When do they have to be read to you?
  • What if the Police didn’t read your Miranda Rights?
  • What is Self-Incrimination?
  • If you chose to remain silent, can it be used against you?

What Are Your Miranda Rights?

The Miranda rights are your constitutional rights under the Fifth and Sixth Amendments of the U.S. Constitution. A reading of these rights is known as a Miranda warning, and it comes from the U.S. Supreme Court’s landmark decision in Miranda v. Arizona, 384 U.S. 436 (1966). In the Mirandacase, police officers went to the home of Ernesto Miranda, who was suspected of stealing $8 from a bank worker. They asked him to go with them to the police station for questioning. While he was being questioned, he admitted to rape and kidnapping and signed a statement of admission. He was subsequently tried for the kidnapping and rape and was convicted. Miranda appealed his case through the Arizona and federal court systems, and the U.S. Supreme Court agreed to hear it.

Click to Read More about Miranda Rights…


Federal Racketeering and the RICO Act: Examples, Penalties & Defenses

Federal Racketeering and the RICO Act: Examples, Penalties & Defenses

Racketeering (ARS 13-2314 04) covers a wide range of activity with different people, groups and organizations. It is a very serious federal criminal offense that is punishable by fines and/or imprisonment. Originally, racketeering was criminal activity that law enforcement limited to organized crime. A “racket” is an organized business or a group of people that conducts business illegally for monetary gain.

Drug trafficking, money laundering, embezzlement of funds are all forms of racketeering. However, due to infiltration of organized crime into the legitimate corporate world in exchange for money, the lines have blurred over the decades, casting a wider view of racketeering and white collar crime in general.

What Is Racketeering?

The classic Merriam-Webster Dictionary definition of racketeering, or a racketeer, is someone who illegally gets money from someone, normally via intimidation. A broader definition of the term is the illegal methods of getting money or offering false services in exchange for money. Extortion, blackmail, bribery, kidnapping for monetary ransom…all of these falls under the racketeering umbrella.


RICO Act (Racketeer Influenced & Corrupt Organization)

The Organized Crime Control Act of 1970 as a whole became law on October 15, 1970. The original purpose of the creation of the RICO statute was to stop the infiltration of organized criminal activity into legitimate businesses. An example of this is the timeless film, The Godfather. The Corleone family was a major crime family in New York City. However, they used an olive oil company as a family business to cover their illegal business practices.

The first documented RICO conviction was a La Cosa Nostra boss in New York City named Frank Tieri. Mr. Tieri was convicted on November 21, 1980 of racketeering charges that included threats to a restaurant owner, loansharking (extortion), and fraudulent activity at the Westchester Premier Theater with proven affiliation to the Genovese crime family. Since this time, however, the RICO act has expanded to include any group that is conducting illegal activity under the racketeering umbrella. This can include corrupt police officers and politicians, street gangs, even businesses and corporations.

Click Here to Read Full Article…


Charges of Illegal Insider Trading

Charges of Illegal Insider Trading

What is Insider Trading?

Illegal insider trading is defined as follows: “the illegal use of information available only to insiders in order to make a profit in financial trading” – Merriam Webster

‘Illegal Insider Trading’charges can result in a maximum fine of $5,000,000 for individuals ($25,000,000 for companies) and a federal prison sentence of up to 20 years! With all charges, if you have been accused of this, the first thing to do is to speak with a white collar crimes attorney.


Why is Insider Trading Illegal?

Insider trading is considered illegal for a few reasons. First, when an employee or a broker for someone is a fiduciary of said person, corporation, government, etc., he or she gives his or her trust and loyalty, acting in the best interest of the person, business or government he or she is representing. Giving clandestine information to someone for financial gain that conflicts with one’s fiduciary duties is not only illegal, but also unfair.

Second, the stock market is supposed to be an even playing field for everyone (hence the term, “gone public”). For someone to have secretive information that no one else has and use it for their own financial gain is very unethical. Stephen Cutler, who is the Director of Enforcement of the SEC eloquently made the following statement in reference to the Martha Stewart case:

“It is fundamentally unfair for someone to have an edge on the market just because she has a stockbroker who is willing to break the rules and give her an illegal tip. It’s worse still when the individual engaging in the insider trading is the Chairman and CEO of a public company.”

It is similar to being the only person to have the answers to a major test, and you win a scholarship to an Ivy League university because of it. It is cheating, unless it cannot be proven.

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What are the Types of Arizona Felony Classes

Types of Arizona Felony Classes

Felony Class Types in Arizona

There are six levels of felony classes in Arizona. Each class has its own guidelines for punishment if convicted. When looking at sentencing, the law presumes that everyone will start at the presumptive sentence however, this sentence can be increased or decreased if mitigating or aggravating factors are found by the Judge or jury. The following sentencing ranges apply to a person with no prior felony convictions.

  • Class 1 – The only crime that falls under a Class 1 felony is murder. Murder charges are divided into two categories: First or Second Degree. First degree murder is punishable by the death penalty or by life in prison without parole. Second degree murder requires a minimum prison sentence of 10 years up to a maximum sentence of 25 years.
  • Class 2 – A Class 2 felony allows for a minimum sentence in the Department of Corrections of three years. This can be increased to up to 12.5 years for aggravated. Probation, with up to one year in jail, is also available.
  • Class 3 – Class 3 felonies allows for a minimum of two years in prison with an aggravated sentence of up to 8.75 years. Probation is also available.
  • Class 4– If sentenced to prison on a Class 4 felony, you face anywhere between 1 to 3.75 years. Again, probation is available.
  • Class 5 – A Class 5 felony provides for a minimum of six months in prison however, can be increased to up to 2.5 years. Probation is available.
  • Class 6 – Although a Class 6 felony, an example could be a DUI in Phoenix, also allows for a probation sentence, if sentenced to prison the range allows for anywhere between .33 – 2 years.

(more…)


New Supreme Court Cases That Affect Your Constitutional Rights

The following is a Guest Post from Adam H. Rosenblum of The Rosenblum Law  Firm.

The Supreme Court of the United States has handed down two separate opinions that radically impact your constitutional rights.

The first case, Alleyne v. United States, deals with sentencing and the second case, Salinas v. Texas, affects your Fifth Amendment right to remain silent.

Mandatory Minimum Sentences

In October of 2009, Allen Ryan Alleyne and two accomplices robbed the store manager of a Mapco/East Coast convenience store in Petersburg, Virginia as he was dropping off the nightly deposit at the bank.

After an extensive investigation, the authorities arrested Mr. Alleyne and a grand jury indicted him for robbery and possessing a firearm. After a week-long trial, he was convicted and sentenced to 130 months in prison.

Not going down without a fight, Mr. Alleyne appealed. However, the appellate court rejected all of his arguments. Eventually, the case made its way to the Supreme Court of the United States.

In an interesting twist of events, Justice Thomas broke ranks to join Justices Ginsburg, Breyer, Sotomayor, and Kagan. According to their final ruling, if an element of a crime increases the mandatory minimum punishment, it must be submitted to the jury and found to be true beyond a reasonable doubt. Likewise, a defendant cannot be found guilty of a crime not included in his indictment.

 

What does all of this mean for you?

If you are charged with a crime and your conduct could lead to your mandatory minimum prison sentence going up (e.g. brandishing a gun during a robbery), proof that you in fact did such a thing must be decided by a jury, not a judge.

If you were recently charged with a crime, this is good news for you. This brand-new precedent creates an additional check on judicial power while giving your criminal defense attorney a new route to argue for you to get the lowest possible sentence.

 

Fifth Amendment Right to Silence

Unfortunately, the “hand that giveth can also taketh away.” In Salinas v. Texas, a criminal defendant’s right to not incriminate himself was severely narrowed and curtailed.

Justice Alito along with Justices Thomas, Scalia, Roberts, and Kennedy held that the Fifth Amendment’s self-incrimination clause does not protect a defendant’s refusal to answer questions asked by law enforcement before he has been arrested or read his Miranda rights.

Before understanding how this affects you, it is crucial to know the basic facts of the case.

In the case, Houston police officers found two homicide victims and an investigation led officers to Genovevo Salinas. Mr. Salinas agreed to accompany the officers to the police station where he was questioned for about an hour.

Salinas was not under arrest at the time and had not been read his Miranda rights. Salinas answered every question until an officer asked whether the shotgun shells found at the scene of the crime would match the gun found in Salinas’ home. According to the officer, Mr. Salinas remained silent and demonstrated signs of deception.

A ballistics analysis later matched Mr. Salinas’ gun with the casings at the scene and a witness emerged claiming that Mr. Salinas admitted to killing the victims. Eventually he was convicted of murder. During the trial, and over an objection by his criminal defense lawyer, the prosecution was allowed to use the evidence of Mr. Salinas’s silence against him as proof of his guilt. Mr. Salinas was found guilty and sentenced to 20 years in prison and fined $5,000. Mr. Salias appealed his case, but he lost.

Eventually, his case made it all the way to the Supreme Court, and they delivered a bombshell that has the potential to hurt criminal defendants everywhere.

According to the ruling, if you stay silent during an interrogation where you were not officially arrested or informed of your Miranda rights, that silence can be used against you in a later criminal proceeding unless you directly state that you are invoking your right to remain silent.

This has far reaching effects and is a wake-up call to anyone charged with a crime. From now on make sure to specifically say, in no uncertain terms, that you are invoking your right to remain silent. Do not just sit there silently!


Vast Majority of Americans unable to name any SCOTUS Justices

Vast Majority of Americans unable to name any SCOTUS Justices

In 2012 the US Supreme Court has made pivotal rulings on President Obamas health care law and Arizona SB1070 immigration law leading to numerous arm chair legal experts around the country. Even with all of this attention on the court and its rulings 2/3rds of Americans are unable to name a single justice, according to a recently released survey.

Of the Justices that people can name the most is Chief Justice John Roberts, but he only comes in correctly 20% of the time.

The least recognizable member is Justice Stephen Breyer with 3% with Kennedy(10%), Alito(5%), and Kagan(4%) also coming in with less than 10% of respondents identifying them.

Even Justices in the media spotlight are somewhere between nobody and the coat checker:
Antonin Scalia (16%)
Clarence Thomas (16%)
Ruth Bader Ginsburg (13%)
Sonia Sotomayor (13%)

The study polled 1,000 American adults by telephone with a demographically diverse sample. The margin for error was around 3%.

It could be argued that is SCOTUS was televised then there would be a better understanding of the court. Of course then we would probably be talking less about the case and more about the style of their robes or the courts wood choice.

We have started giving our visitors more information about various Judges in Arizona: Tempe Judges and Scottsdale Judges.


U.S. Supreme Court will Hear “Obamacare” Debate

U.S. Supreme Court will Hear “Obamacare” Debate

Picture of the US Supreme Court Building from Outside

Image Credit to dbking

The Supreme Court has granted cert. to hear oral arguments about the constitutionality of the new healthcare law, Patient Protection and Affordable Care Act (aka “Obamacare”). The country is divided about the appropriateness of the law, and the Supreme Court will perhaps become the final decision-maker in determining whether this bill is allowed to stand. Both supporters and criticizers of the law are pressuring the Supreme Court to allow the debates to be televised, citing national importance as the justification. However, this would be a first for the Supreme Court and looks unlikely. Justice Kennedy is forecasted to be the deciding vote in this case when it is argued for a record 5.5 hours in March.
Shoutout to LegalTimes


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