Issue 4: What is a Set Aside?
Last Updated December 16th, 2023
What is a Set Aside in Arizona?
In Arizona, a "set aside" refers to the legal process outlined in A.R.S. §§ 13-904-912, allowing individuals convicted of felonies (and sometimes misdemeanors) to request the court to vacate their judgment of guilt under specific conditions. If granted, the set-aside doesn't remove the conviction from public records but indicates that the guilt judgment was set aside.
The court order relieves the individual from some penalties associated with the conviction but doesn't erase the conviction itself. Despite the set-aside, the conviction remains visible in public records. While seeking to set aside a felony conviction yields greater benefits due to more severe penalties, doing so for a misdemeanor, particularly for drug-related offenses, can still be helpful, though the impact might not be as extensive.
Eligibility to Apply:
If you have fulfilled the conditions of probation or sentence (this also includes paying financial obligations) and have been discharged by the court, individuals convicted of a criminal offense have the right to apply to the court to set aside the judgment of guilt.
Exceptions:
Certain individuals convicted of specific offenses, such as dangerous offenses, offenses requiring registration, those with sexual motivation findings, or felonies involving minor victims under fifteen, are not eligible for this relief.
Application Process:
You can apply without any filing fees charged by the court.
Factors considered by the court include the nature of the offense, compliance with sentencing conditions, prior convictions, victim restitution, time elapsed since completion of the sentence, age at the time of conviction, and any other relevant factor.
Effects of Setting Aside the Conviction:
If the application is granted, the court will set aside the judgment of guilt, dismiss the complaint or indictment, and release the person from penalties and disabilities, except those specified (such as certain penalties imposed by other departments or agencies).
However, the conviction that's set aside can still be used or considered in certain legal proceedings or situations as outlined in the legislation.
The court clerk will notify the Department of Public Safety when a conviction is set aside. The department will update the criminal history but cannot remove any part of the record.
Law enforcement agencies are not required to remove or redact records.
The department can still consider the conviction when evaluating applications for certain clearances.
Victim's Rights and Involvement:Victims have the right to be present and heard in proceedings where an application to set aside a judgment of guilt is filed. The victims or their survivors are informed about the defendant's application and relevant rights if they've requested post-conviction notice.
Certificate of Second Chance:
A certificate of second chance may be issued with the court's order, releasing the person from certain barriers and disabilities related to occupational licenses, and providing protections for employers and housing providers, but it is not a recommendation or promotion.
Restoration of Rights:
Restoration of the right to possess a firearm is allowed for individuals whose convictions are set aside, with exceptions for serious offenses as defined in the legislation.
References & Resources:
Arizona Statue: https://www.azleg.gov/ars/13/00905.htm
Maricopa County Application for Set Aside: https://superiorcourt.maricopa.gov/media/4208/crsa1z.pdf
