Background:

Certificates of Discharge for Felony Convictions.

When a person has completed the sentencing conditions for a felony conviction, including any and all legal financial obligations (LFOs), the sentencing court is required to provide him or her with a certificate of discharge (COD). The COD has the effect of restoring all civil rights. A prior record may still be used in determining sentences for later offenses, and a COD does not discharge a no-contact or protection order.

The process for obtaining a COD is provided in statute. When a person has completed sentencing conditions, the Department of Corrections (DOC) is required to submit notice to the county clerk, who in turn informs the sentencing court. If the person was not in the custody of or under the supervision of the DOC, he or she may directly contact the sentencing court with verification that he or she has completed conditions. Once the person satisfies all LFOs, the sentencing court is required to provide him or her with a COD.

Vacating Criminal Convictions.

In certain circumstances authorized in statute, a person's record of conviction may be vacated by a sentencing judge. If the court vacates a record of conviction, the offense is no longer included in the person's criminal history. Criminal history is a factor in sentencing, professional licensing, employment, housing, and other matters. A person whose conviction has been vacated may state that he or she has never been convicted of that crime, including when responding to questions pertaining to licensing, employment, and housing applications.

Vacating Felony Convictions. A person convicted of a felony may apply to the sentencing court to vacate the conviction after receiving a COD. However, the record of conviction may not be vacated if:

the offense was a violent offense, a crime against persons, or a felony driving under the influence (DUI) offense;
the applicant has any criminal charges pending in any state or federal court;
the applicant has been convicted of a new crime in any state or federal court since the date of the COD;
the offense is a class B felony and fewer than 10 years have passed since the date of the COD; or
the offense was a class C felony and fewer than five years have passed since the date of the COD.

Vacating Misdemeanor Convictions. A person convicted of a misdemeanor or gross misdemeanor may apply to the sentencing court to vacate the conviction if he or she has completed all sentencing conditions, including payment of all LFOs. However, the record of conviction may not be vacated if:

the conviction was for one of the select offenses that may not be vacated—for example, a violent offense, a sex offense, failure to register as a sex offender, a DUI offense, or certain domestic violence (DV) offenses;
the applicant has any criminal charges pending in any state or federal court;
the applicant has been convicted of a new crime in any state or federal court since the date of conviction;
the applicant has had the record of another conviction vacated;
the applicant applies for vacation less than three years after completing his or her sentence, including any LFOs (or less than five years for certain DV offenses); or
the applicant has been the subject of a DV protection order, a no-contact order, an anti-harassment order, or a civil restraining order within the five years prior to applying for the vacation.

Summary:

Certificates of Discharge for Felony Convictions.

Notices from the DOC to the county clerk must include specific information regarding completed sentence requirements, so it is clear to the sentencing court that the person is entitled to a COD upon completing payment of his or her LFOs. The county clerk must promptly notify the court when the person completes payment of his or her LFOs.

A person may apply directly to the sentencing court if the DOC does not provide notice to the court. The applicant must submit documentation to the court verifying completion of all sentencing conditions. The sentencing court must issue a COD upon verification of completion of sentencing conditions. A COD is effective on the date the person completed sentencing conditions.

If a person is unable to obtain a COD under other procedures, he or she may file a motion with the court with verification of completion of all nonfinancial conditions. However, the court may waive the requirement for verification based on good cause. A COD issued under these procedures is effective on the later of: five years after completion of community custody or, if the person was not required to serve community custody, after completion of full and partial confinement; or the date on which any and all LFOs were satisfied.

Vacating Criminal Convictions.

Vacating Felony Convictions. Eligibility criteria for vacating felony convictions are modified. A person may apply to vacate Assault in the second degree, Assault in the third degree when not committed against a law enforcement officer or peace officer, or Robbery in the second degree, so long as those offenses do not include a firearm, deadly weapon, or sexual motivation enhancement.

The waiting periods are modified. The waiting periods are no longer tied to the effective date of the COD. Instead, an applicant is required to wait 10 years for a class B felony or five years for a class C felony since the later of his or her: release from community custody; release from full and partial confinement; or sentencing date. The applicant must not have been convicted of a new crime for a specified time period preceding the application for vacation—specifically, 10 years for a class B felony and five years for a class C felony.

Language is added specifying that the vacation of a conviction does not affect the requirements for restoring a right to possess a firearm.

Recidivist Offenses.

A "recidivist offense" is a felony offense where a prior conviction of the same offense or other specified offense is an element of the crime, including, but not limited to: Assault in the fourth degree where domestic violence is pleaded and proven; Cyberstalking; Harassment; Indecent Exposure; Stalking; Telephone Harassment; and violation of a no-contact or protection order.

Vacating Misdemeanor Convictions. Eligibility criteria for vacating misdemeanor convictions are modified. The restriction against vacating a misdemeanor Failure to Register conviction is removed.

The restriction based on prior vacations is removed. A person may apply to have his or her conviction vacated even if he or she has had a conviction vacated previously.

The restriction based on pending charges is expanded to include pending charges in tribal courts. The restriction based on new convictions is modified. A person may apply to have a conviction vacated even if he or she has been convicted of a new gross misdemeanor or misdemeanor offense, as long as it has been more than three years since those new convictions. In addition, the restriction based on new convictions includes any convictions occurring in tribal courts.

The restriction based on prior restraining/protection orders is modified. A person who has been the subject of an order in the previous five years may apply to have his or her record vacated so long as he or she is not currently subject to an order and he or she did not violate an order in the previous five years.

The current requirement for all court and probation services costs to be paid by the applicant, unless he or she is indigent, is removed. Language is added specifying that the vacation of a conviction does not affect the requirements for restoring a right to possess a firearm.

A vacated conviction qualifies as a prior conviction for the purpose of charging a present recidivist offense. In addition, a vacated felony conviction may be used in a future criminal proceeding for the purposes of establishing an ongoing pattern of abuse, on the basis of which the court may impose an exceptional sentence.

House	95
Senate	48	(Senate amended)
House	95	(House concurred)