Set Aside Law and Legal Definition
Set aside occurs when a judge annuls or negates a court order or judgment by another court. When a criminal conviction is set aside, the person is considered not to have been previously convicted, although sex offender registration requirements may still apply. A set aside criminal conviction typically does not affect the right of the peson convicted to rely upon the conviction to bar subsequent proceedings for the same offense, and state law may prohibit the person from commencing an action for damages for incarceration under the sentence served before the conviction is set aside. State laws vary, so local law should be consulted for specific requirements in your area.
Set aside also refers to reserving a portion of public contracts to be awarded to minority or small business enterprises. Set aside programs exist in many states and vary under state laws. Set aside programs are generally established for the purpose of assuring that a state's small and small minority owned businesses have an opportunity to bid on a portion of the state’s purchases.
Under such a program, a certain percentage of state funded purchases are set aside for small businesses. In some cases, an additonal portion of that percentage is reserved for small businesses which are minority/women-owned.
State laws vary, but the following is an example of a state law dealing with setting aside a criminal conviction:
Motion to set aside conviction; application; fee; notification to victim of assaultive crime or serious misdemeanor; hearing; order
Sec. 1. (1) Except as provided in subsection (2), a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction.
(2) A person shall not apply to have set aside, and a judge shall not set aside, a conviction for a felony for which the maximum punishment is life imprisonment or an attempt to commit a felony for which the maximum punishment is life imprisonment, a conviction for a violation or attempted violation of section 520c, 520d, or 520g of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.520c, 750.520d, and 750.520g of the Michigan Compiled Laws, or a conviction for a traffic offense.
(3) An application shall not be filed until the expiration of 5 years following imposition of the sentence for the conviction that the applicant seeks to set aside or 5 years following completion of any term of imprisonment for that conviction, whichever occurs later.
(4) The application is invalid unless it contains the following information and is signed under oath by the person whose conviction is to be set aside:
- The full name and current address of the applicant.
- A certified record of the conviction that is to be set aside.
- A statement that the applicant has not been convicted of an offense other than the one sought to be set aside as a result of this application.
- A statement as to whether the applicant has previously filed an application to set aside this or any other conviction and, if so, the disposition of the application.
- A statement as to whether the applicant has any other criminal charge pending againsthim or her in any court in the United States or in any other country.
- A consent to the use of the nonpublic record created under section 3 to the extent authorized by section 3.
(5) The applicant shall submit a copy of the application and 2 complete sets of fingerprints to the department of state police. The department of state police shall compare those fingerprints with the records of the department, including the nonpublic record created under section 3, and shall forward a complete set of fingerprints to the federal bureau of investigation for a comparison with the records available to that agency. The department of state police shall report to the court in which the application is filed the information contained in the department's records with respect to any pending charges against the applicant, any record of conviction of the applicant, and the setting aside of any conviction of the applicant and shall report to the court any similar information obtained from the federal bureau of investigation. The court shall not act upon the application until the department of state police reports the information required by this subsection to the court.
(6) The copy of the application submitted to the department of state police under subsection (5) shall be accompanied by a fee of $25.00 payable to the state of Michigan which shall be used by the department of state police to defray the expenses incurred in processing the application.
(7) A copy of the application shall be served upon the attorney general and upon the office of the prosecuting attorney who prosecuted the crime, and an opportunity shall be given to the attorney general and to the prosecuting attorney to contest the application. If the conviction was for an assaultive crime or a serious misdemeanor, the prosecuting attorney shall notify the victim of the assaultive crime or serious misdemeanor of the application pursuant to section 22a or 77a of the crime victim's rights act, Act No. 87 of the Public Acts of 1985, being sections 780.772a and 780.827a of the Michigan Compiled Laws. The notice shall be by first-class mail to the victim's last known address. The victim has the right to appear at any proceeding under this act concerning that conviction and to make a written or oral statement.
(8) Upon the hearing of the application the court may require the filing of affidavits and the taking of proofs as it considers proper.
(9) If the court determines that the circumstances and behavior of the applicant from the date of the applicant's conviction to the filing of the application warrant setting aside the conviction and that setting aside the conviction is consistent with the public welfare, the court may enter an order setting aside the conviction. The setting aside of a conviction under this act is a privilege and conditional and is not a right.
