What Is the Set Aside Process?

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

This is how a motion to set aside a judgment works. We prepare a formal packet for felony or misdemeanor cases. We make a presentation to the court. We normally obtain references for the individual. We will appear in court in front of a judge for them and with them if need be.

Interviewer: You procure character references?

Acacia Law: Yes, character references. For example, someone, again, is in a situation where they simply, a teacher, again as I gave you as an example earlier or someone with a real estate license or even, I've represented attorneys who had to have misdemeanors set aside because they did not want to concern the state bar of Arizona.

Now the thing is, is that the way that most motions to set aside work is that once the presentation is made to the court, the court will rule on whether or not they will set it aside. Even if they deny it, it can be revisited again at a later time.

Sometimes the court will give reasons as to why they deny it. If they don't, I will normally file a motion demanding that they give a stated reason on the record in the event that they'll want to appeal that decision.

Interviewer: I see.

Which Kind of Convictions Appear on a Criminal Record?

Acacia Law: Basically what happens is this. When you get a conviction for a felony, most employers are not ordinarily interested in if you have misdemeanor convictions. At least, that's the way it used to be. Today, currently at this time, I can tell you that even a misdemeanor conviction can have major ramifications.

That is why there is this avenue, a remedy available, which is actually post-conviction, that can be utilized to essentially set the judgment against the person aside and allow the person to have that order by the court in hand. We give them the original and we keep a copy for our file in case they ever lose it.

Then, they can submit it to their prospective employer or school. And essentially, whoever is examining it will see that the superior or the magistrate or city court judge or justice of the peace court has set this conviction aside from the defendant's record.

Interviewer: This sounds like a really big deal, especially for employment purposes. What are some of the things that people can do to improve their chance of getting a judgment set aside versus failing at this?

How Can an Attorney Assist in This Process?

Acacia Law: Again, I have a certain protocol that I follow. I also use a certain format that I've created which I have found to be the most persuasive, best documented and gives the client the highest likelihood of success, a presentation in written format that can be attached to the record for the court's consideration.

The way it works, basically, is that if a client needs something set aside, I can present all the mitigating factors since the time of their conviction to give the court reason to believe that they are deserving of having this motion to set aside judgment granted.

What I have found is that if the person has either hardship circumstances and/or has been law abiding for a significant period of time and/or has a case that is not necessarily something that has a particular bias that offends the judge they have a good chance for success.

An Experienced Attorney Will Afford Clients the Best Opportunity for Success

Interviewer: I see.

Acacia Law: That's basically has been my experience. A personality-by-personality assessment based on the particular judge. In other words, some judges find some crimes more egregious than others.

What I have been able to do is since we do know most of the judges that we deal with, if I know one who has a particular empathy for a certain type of crime, then I will see if I can have them review the case.

Normally the courts rotate from criminal to civil to family law to juvenile law every three years. So the judge that may have convicted and sentenced somebody may not any longer, in superior court, necessarily be on the criminal bench, which means that another judge may be looking at it. If that's the case, I try to see if I can have it submitted to a court that I'm familiar with, if they will accept jurisdiction of the decision.

Basically, you have to, I don't want to call it judge shopping, but obviously I know based on my experiences which judges are more likely to be amenable to certain presentations and arguments than others.

Interviewer: That makes sense.

Acacia Law: Each one has to be individually crafted for the client to have the best chance of success. The advantage of going through this process would be with the motion to set aside judgment granted, obviously for a lot of employers and schools, certification boards, these things can make a difference in terms of how they may view an individual.

Why? Well, if a person has been convicted of a crime and they see that the judge has reviewed their case, seen that they've been law abiding and don't believe that they are a threat to the community, and then they are not opposed to giving them a second chance. That can impact significantly on someone who's analyzing their value or worth or whatever they're applying for.

How Long do You Have to Wait After a Conviction to Apply for a Set Aside?

Interviewer: How long do you have to wait after you're convicted to go for a set aside?

Acacia Law: That's the other point I was going to get to. Strategically speaking, if I have someone, for example, who is a teacher who is now currently being basically brought up to the board for the security clearance problem, depending on their performance on probation, I can file a motion to either terminate or modify their probation terms.

I know we discussed probation earlier. I don't know if we discussed in any great detail the fact that the client always has a right to move the court to modify the terms and conditions of probation as originally ordered by the court.

For example, if you have a teacher who, as a teenager, went ahead and used somebody else's credit card on a lark and then 10 years later after tenure, it shows up when they're trying to get their fingerprint card. You can submit that to the court as extenuating circumstances assuming they've remained law abiding to request that their probation, if it was at that time active, if they could have it terminated and file a motion to set aside the judgment off their record. I can make that happen pretty fast.

Interviewer: It sounds like the older the offense is the easier it will be to get this process done. If someone was convicted of burglary six months ago, it's probably a lot less likely versus 5, 10 years ago.

Acacia Law: Agreed. Most courts would say, obviously they examined the individual. They look at their record. Six months is probably not going to persuade any judge, even on a misdemeanor, ordinarily. That is sufficient time of remaining law abiding to be persuaded that they're deserving of having this criminal conviction set aside off their record.

Interviewer: That sounds plausible.

Acacia Law: Again, each case is different. I have had cases where people, for instance, were on Social Security. If the conviction were to remain and they're on serious probation, but simply remaining law abiding without being under the supervision of a probation officer, a judge would be inclined to probably knock off their probation, cut it off early and even give them, basically, a motion to set aside judgment on the spot so they don't lose their housing.

Interviewer: I see

Are Any Types of Offenses Precluded From Set Asides?

Acacia Law: Other times, I have situations and I can tell you one area of the law that I have really had no luck in and in fact, I don't think I've even ever bothered. Most sex offender cases, they will not qualify for a set aside. You will not find most judges setting aside those types of convictions.

Interviewer: So sex offenders will not qualify for a set aside for the most part. What other crimes could you get aside and which ones couldn't you? What are some other examples?

Acacia Law: A few years ago, statutorily, they prevented you from getting DUIs set aside off your record. Now, they've since gone ahead and reversed that. I don't know if it was on constitutional grounds or what

Federal Crimes Are Not Eligible for Set Asides

Basically, most any crime that's a state or municipal violation via ordinance, are eligible. No federal crime conviction is eligible for a set aside. I have to unfortunately tell anyone who comes in who is trying to set aside a federal felony conviction it's not going to happen. There's no avenue to do that.

Interviewer: Just so people know, what are some federal crimes that this isn't eligible for? Can you give me an example?

Acacia Law: Every single one on the books. Getting back to the state ones, which most people inquire about.

Interviewer: Yes, please explain.

Some Violent Offenses May Qualify for a Set Aside

Acacia Law: The ones that people, again, I find are normally considered non-dangerous, non-repetitive offenses under the code. Even violent offenses I have had set aside off the record. Again, what is looked at is whether the person has remained law abiding, what they're currently up to, are they a danger to the community, do they have support in the community, and are they trying to better themselves. And, will this betterment come about if they have their civil rights restored.

The problem with the sex offender cases that I've mentioned earlier was that the statistics are so horrendous in terms of the likelihood of recidivism that it simply, as a matter of policy, I've never had a judge set something aside of that nature.

Interviewer: I see.

Acacia Law: However, when it comes to even violent crimes, even stabbings and shootings, I've had them knocked off.