Flagstaff Lawyer Discusses How to Get an Arizona Felony Conviction Set Aside and What that Means for Your Civil Rights

Arizona law allows convicted felons to apply for several post-conviction remedies. In this article, I’m not writing about appeals and “post-conviction relief” pleadings. What I am talking about is getting your civil rights restored (e.g., gun rights), getting your conviction vacated or “set aside,” and the whether or not that conviction can still be used against you in the future.

Arizona law allows you (or your attorney or probation officer) to apply to the Court “on fulfillment of the conditions of probation or sentence and discharge by the court[.]” A.R.S. section 13-907. I recommend speaking to an attorney before you file an Application to Set Aside Judgment because it is important that you do it right the first time around.

If you are a first-time felon in Arizona, after you complete probation or your prison sentence, and you complete victim restitution, then you “shall automatically be restored any civil rights that were lost or suspended by the conviction.” A.R.S. section 13-912. However, be careful when it comes to guns, because your gun rights are not automatically restored! To get your gun rights restored, you must comply with two very specific Arizona statutes, specifically A.R.S. sections 13-905 and 13-906. Speak with an attorney if you want your gun rights to be restored correctly. It can be a very tricky process.

Once you have your conviction set aside, whether by application or automatically (for first-time offenders), you can get your civil rights restored. In fact, you will be released from “all penalties and disabilities resulting from the conviction[.]” A.R.S. section 13-907. That said, there are exceptions to this rule. One major exception is that, even though your conviction was set aside and your judgment was vacated, the State of Arizona, in a future felony prosecution against you, can and will use your prior conviction to enhance your next sentence. That’s right, even if you had your conviction set aside, the “fact” of the conviction will be used against you if you are convicted of another felony offense.

In a 2008 case, the Arizona Court of Appeals addressed that issue, referring back to older cases that said, ““The statute itself is proof that restoration of civil rights under section 13-907 does not expunge or remove the fact of conviction in Arizona. The statute allows an otherwise admissible prior conviction to be used for subsequent prosecutions as if the judgment of guilt had not been set aside.” Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 467-68, ¶ 15, 974 P.2d 443, 446-47 (App.1998) (footnote omitted); accord State v. Green, 173 Ariz. 464, 469, 844 P.2d 631, 636 (App.1992), vacated in part, 174 Ariz. 586, 852 P.2d 401 (1993) (noting statute “specifically authorizes the conviction to be used as a prior conviction in subsequent prosecutions”); see also State v. Key, 128 Ariz. 419, 421, 626 P.2d 149, 151 (App.1981) (noting statute permits a person to be released of all penalties and disabilities “with the exception that the conviction may be proved as a prior conviction in a subsequent criminal action”).

Thus, even when your conviction is vacated or set aside, the fact that you were ever convicted of a felony in the first place can come back to haunt you. According to the Arizona Court of Appeals, that’s what the legislature intended when they drafted the terribly-worded law that is A.R.S. section 13-907.

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