If you are accused of crime, you could lose your opportunity to achieve specific goals. Moreover, you may face several restrictions on your rights and freedoms as a citizen. Therefore, it is important to consider obtaining ‘set aside’ orders on your criminal conviction that occurred in Arizona for a clean slate. However, the application process may be challenging because of the numerous requirements of eligibility.
You need the help of an experienced criminal attorney to represent you during the court hearings for a straightforward petition process. Also, a diligent attorney increases the chances of achieving a favorable outcome. You could achieve to have your conviction set aside if your lawyer performs extensive research and consolidates solid evidence.
At the Phoenix Criminal Attorney, we have reputable criminal lawyers who dedicate their skills to help defendants seek set aside orders. Our services are available to defendants facing conviction in Phoenix, Arizona.
Understanding the Nature of a Set Aside Order in Arizona
Upon facing a criminal conviction, you may have a chance to seal the criminal records after completing your sentence. If you meet all the set requirements, you will have all criminal records set aside, meaning that the criminal history should not be a significant point of reference in decision-making for anyone who decides to look into them.
The Arizona Revised Statutes, under subsection 13-907, allows the court to set aside your conviction. The statute states that anyone who faces a criminal charge may apply for a set aside, provided he/she fulfills the sentencing conditions, among other requirements.
Further, the subsection directs you to apply for the set aside in the court where you initially faced a conviction for easier tracking. If the judge or magistrate who sentenced you has retired or moved to a different court, you may present the application for a set aside to the presiding one.
It is crucial to note that a set aside in an Arizona court does not provide the same benefits as expungements conducted in other states. Usually, the expungements will seal or destroy your criminal records, making them inaccessible except in vital circumstances. On the other hand, a set aside does not destroy your records, nor does it remove them from a searchable criminal history. Instead, the set aside will mark your past convictions as vacated or dismissed by the judge.
Despite failing to destroy your criminal records, the set aside status improves your circumstances significantly, as most organizations recognize its representation. Nevertheless, you should be ready to provide information of your criminal history if need be, especially when applying for a job. Your criminal attorney will advise you to state that the records were simply set aside to your potential employer.
Eligibility Criteria for Persons Seeking Set Aside Orders
Before petitioning for a set aside, you must meet several elements that check on your character and the nature of the crime. The rationale behind setting the criteria list is to ward off numerous applications from offenders involved in serious felonies. Additionally, the requirement list sets clear instructions that help you obtain all necessary documents as evidence of your past convictions. The elements for the court to consider include:
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The Type of Crime You Engaged In
Among the most critical factors the court considers before granting you set aside orders is the type of offense you commited. The court will do its best to prevent a serious felony offender from obtaining a set aside order, based on the severity of the crime. As a result, different categories of offenses exist, with each falling within or outside the eligibility criteria for a set aside.
Usually, misdemeanor offenses do not cause adverse consequences, as they involve less serious offenses. Therefore, you will have higher chances of receiving a set aside for a misdemeanor conviction than felony crimes. Nonetheless, you are also eligible for the set aside as a felony convict provided your offense does not fall within the excluded list.
As mentioned, the court is not keen on releasing offenders who engaged in severe crimes and granting them a set aside, as they may continue to pose immediate threats to the community. Thus, several offenses make you ineligible for a set aside. They are:
Sexual Offenses
If you commit a sexual offense, you cannot petition for a set aside, as it is a serious crime attracting harsh penalties. Examples of sexual offenses include rape and sexual assault involving violence, where the victims have to deal with the consequences of the crime for a long time.
As a punishment, you will have to register as a sex offender, a status that may last for years or even a lifetime depending on the severity of your case. Consequently, the mandatory requirement to register as a sex offender creates a challenge in seeking a set aside, as both interests will overlap. The final resort, therefore, makes a sex offender ineligible for a set aside.
Offenses that Caused Infliction of Grievous Bodily Harm
You are ineligible for a set aside after facing conviction for a crime that caused serious bodily harm to the victim. Common examples of these crimes include DUIs causing injury and robbery with violence. If the victim provided admissible evidence to show the severity of injuries, your conviction would directly hinder you from filing the set aside motion.
The judge issuing the sentence will include express statements to indicate the nature of the crime and specify the infliction of serious harm. As a result, your previous sentencing records will be useful evidence for a prosecutor who may decide to dispute your application for setting your records aside.
Crimes Involving a Victim who was Younger than Fifteen Years
Additionally, if your criminal engagements affected a minor below fifteen years, you will lose a chance to request a set aside. Different offenses fall within this category, but sexual crimes are the most commonly reported. For example, if you commit lewd conduct with a child under fifteen years, you become ineligible for the set aside from the crime severity.
Similarly, using a child to traffic narcotic drugs or undertake any other illegal activities will create ineligibility. In these cases, the courts treat the minor as incapable of making decisions for themselves. As a result, any criminal operations they undertake from your orders will make them victims.
Offenses Related to Sexual Motivation
Apart from the main sexual offenses, a different set of crimes arises, whereby the focus is on the offender’s aim for sexual gratification. The difference between sexual motivation crimes and other offenses is that you do not have to physically harm a person. Instead, you may conduct indirect indecent acts for personal sexual gratification.
Examples include obtaining and distributing child pornography content online for gratification. Moreover, you may perform indecent exposure when in public, whereby you expose your genitals to others for gratification. The actions will attract serious penalties despite indirect harm to the victims, on top of denying you access to a set aside.
Offenses Involving the Use of Deadly Weapons
Further, you may have faced conviction for using a deadly weapon to assist in committing a crime or in careless possession while in public. The Arizona Revised Statutes defines a deadly weapon in subsection 13-105(15) as an object created to cause fatalities potentially when in use. For example, a firearm is a commonly used deadly weapon in different offenses like robberies or gang activities.
In most cases, your conviction does not have to involve the death of a victim, provided you used the weapon to intimidate or cause serious bodily harm. While the case circumstances may vary from one accused person to another, the judge who presided over the matter will have disqualified you from a set aside if he/she found you guilty of the crime.
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The Period Since Committing the Crime and Facing Conviction
Apart from assessing the type of offense you committed, the judge will also inquire about the duration between committing the crime and facing a conviction. Doing this affirms your eligibility in meeting the set time limitations, for a lawful procedure to ensue.
Upon facing conviction for two or more felonies and receiving a prison sentence, you will have to wait for up to two years before applying for a set aside order. Therefore, it is important to learn about these provisions before deciding to proceed with a petition. Thanks to the information, you will save time and money you may otherwise lose from making an early application.
If you face charges for less severe convictions, including misdemeanors, you will face a shorter waiting period of up to six months before becoming eligible. During this time, you can contact your criminal defense attorney to make adequate preparations for the upcoming court procedures. This way, you stand better chances of receiving the set aside orders thanks to the extensive research you undertake.
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Your Current Contribution to the Community
After completing your criminal sentence in prison or a rehabilitation center for probation terms, you will have to reintegrate into society. Ideally, you should create a bond with your immediate community and engage yourself with progressive projects. As a result, your criminal lawyer will advise you to include any positive engagements you have had since leaving prison when applying for the set aside.
In providing the details, you move the judge to view the positive reforms and consider issuing the set aside based on the promising improvements in character. Thus, you want to begin engaging in community development projects as soon as you can for the best chances of a successful petition.
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The Nature of Your Sentence
Before petitioning for a set aside, you also want to ensure that you fulfilled all your sentencing requirements by satisfying the judge’s directives. You will receive prison sentences, fine payment, or probation orders as part of retribution for criminal convictions.
Moreover, the judge may issue two penalties concurrently, especially in adverse cases. Therefore, it is crucial to understand the general requirements for each penalty before seeking a set aside.
Requirements in a Prison Sentence
If you are sentenced to prison, you must complete the sentence and undergo a lawful prison-release procedure. Subsequently, the waiting period before seeking a set aside depends on the sentence duration, which may last for years.
However, you may benefit from a sentence reduction program, whereby you leave prison before the sentenced period lapses. If you followed all guidelines while in prison, a certified officer may produce a document to affirm your successful completion of the sentence. Hence, you will have a chance to apply for a set aside despite an unconventional completion of the prison sentence.
Requirements in Fine Payment Penalties
Similarly, you must pay all court fines. To do this, you need to transfer the money as required and present supporting documents to show the successful transaction. The judge will only accept your petition to obtain a set aside if you provide valid justifications of having previously complied with the fine penalties. Therefore, your chances of receiving a set aside may be lower if you previously defaulted fine payments.
Requirements in a Probation Sentence
Lastly, probation is a common alternative to serving time in prison where a defendant provides sufficient justifications to join the program. Typically, probation imposes different directives to the offender as a rehabilitative and corrective measure. The judge expects you to display a significant change in criminal behavior upon completing the probation period before he/she can dismiss your case.
Moreover, the judge assigns a probation officer responsible for creating a final report and recommendations concerning your case dismissal. Therefore, you need to cooperate with the officer for the best chance of receiving a positive report. In return, the reports play a significant role in your application for the set aside, as it reduces the judge’s prejudicial view of your case.
Some essential requirements to satisfy in a probation term include attending counseling sessions or a rehabilitative program as directed. You will need to demonstrate a significant reform from your previous criminal activities before gaining clearance from the court during the period.
The probation officer will require you to report to him/her for constant assessment, depending on the agreed terms. You may also have to submit to random drug tests if your crime involved drug abuse or a DUI, and refrain from engaging in any subsequent criminal activities. A failure to adhere to the rules may lead to new charges and mandatory imprisonment orders.
Overall, upholding the regulations of a probation term and completing it successfully is beneficial, as the judge will gauge different factors in your petition hearing. For example, he/she will use the past probation report to check on your behavior and compliance during the process. If you had a positive probation experience, you increase your chances of having the past criminal records set aside.
Applying for a Set Aside Order
If you meet all the requirements set for a set aside process, you may begin the petition procedures with your criminal attorney’s help. The process involves drafting and filing a motion to institute the petition and serving it to all relevant parties.
The primary parties include the prosecutor and the court officers who handled the conviction records. Once all parties confirm the reception of your motion document, your matter will proceed to the next stage.
It is important to note that serving the prosecutor with the motion is a crucial step, as he/she has the mandate to dispute your intention to seek the set aside. Subsequently, the dispute paves the way for an official court hearing where the judge will weigh your application and previous records. Afterward, he/she issues a decision that could either grant or deny you the set aside order.
Your criminal defense lawyer plays a crucial role during the hearing. Among an attorney's many roles, he/she advocates for your case and provides supporting documents on your behalf. Moreover, your attorney will make counter-arguments after the prosecutor presents a statement, aiming to persuade the judge of your behavioral reform.
Outside court, your defense lawyer is also instrumental in performing due diligence and extensive research on your criminal history. He/she should also prepare and organize all required documents that will give evidence of the reported reforms. These steps are necessary for a positive case outcome, as they justify your petition.
Find a Criminal Defense Lawyer Near Me
Facing criminal charges and conviction cause adverse consequences in your life. However, you may revert back to your everyday life upon receiving a set aside. The order vacates the judge’s previous sentencing. If successful, you will receive benefits like access to employment opportunities, civil rights, and higher learning upon completing your sentence.
Petitioning for a set aside is not easy without a criminal defense lawyer. At the Phoenix Criminal Attorney, we have defense lawyers who could offer you legal assistance. Our highly experienced and skilled lawyers are ready to take on your matter for an excellent opportunity to obtain a set aside. If you or a loved one need to file a set aside petition in Phoenix, call us today at 602-551-8092.
