8.17​Setting Aside (Expunging) a Sex Offender’s Conviction

This section addresses the requirements and procedures for setting aside or expunging convictions under the Setting Aside Convictions Act (SACA), MCL 780.621 et seq. Setting aside and expunging juvenile adjudications and records is governed by MCL 712A.18e and MCR 3.925(E). For more information on these matters, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 3, and the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 21. See also the Michigan Judicial Institute’s Quick Reference Materials:

•​Setting Aside a Conviction Flowchart 

•​Setting Aside a Conviction Checklist 

•​Setting Aside a Human Trafficking Conviction Flowchart 

•​Setting Aside a Conviction for Human Trafficking Victim Checklist 

Having one or more convictions set aside under the SACA “is a privilege and conditional and is not a right.” MCL 780.621d(14).

Except as provided in MCL 780.621,⁶⁴ MCL 780.621e,⁶⁵ and MCL 780.621g,⁶⁶ a person may have no more than one conviction set aside under the SACA. MCL 780.624.

A.​Application to Set Aside Convictions

Except as otherwise provided in the SACA, MCL 780.621 et seq., a person may file an application⁶⁷ to have one or more convictions set aside under the SACA according to specific guidelines set forth in MCL 780.621–MCL 780.624. MCL 780.621(1). According to MCL 780.621(1), an individual applying to have a conviction⁶⁸ set aside must satisfy the following requirements:

“(a) Except as provided in subdivisions (b) and (c), a person convicted of 1 or more criminal offenses, but not more than a total of 3 felony offenses, in this state, may apply to have all of the applicant’s convictions from this state set aside.

(b) An applicant may not have more than a total of 2 convictions for an assaultive crime set aside under this act during the applicant’s lifetime.

(c) An applicant may not have more than 1 felony conviction for the same offense set aside under this section if the offense is punishable by more than 10 years imprisonment.

(d) A person who is convicted of a violation or an attempted violation of . . . MCL 750.520e,^[69] before January 12, 2015 may petition the convicting court to set aside the conviction if the individual has not been convicted of another offense other than not more than 2 minor offenses. As used in this subdivision, ‘minor offense’ means a misdemeanor or ordinance violation to which all of the following apply:

(i) The maximum permissible term of imprisonment does not exceed 90 days.

(ii) The maximum permissible fine is not more than $1,000.00.

(iii) The person who committed the offense is not more than 21 years old.” MCL 780.621(1).

Except as indicated in MCL 780.621b(1)(a)-(d), when a petition is filed under MCL 780.621 or MCL 780.621e⁷⁰ to have a conviction set aside, more than one felony offense or more than one misdemeanor offense must be treated as a single felony offense or a single misdemeanor offense “if the felony or misdemeanor convictions were contemporaneous such that all of the felony or misdemeanor offenses occurred within 24 hours and arose from the same transaction[.]” MCL 780.621b(1). MCL 780.621b(1)(a)-(d) lists the offenses to which MCL 780.621b(1) does not apply:

•​Assaultive crimes. MCL 780.621b(1)(a).

•​Crimes involving the use or possession of a dangerous weapon. MCL 780.621b(1)(b).

•​Crimes for which the maximum sentence is 10 or more years of imprisonment. MCL 780.621b(1)(c).

•​Conviction of a crime that would constitute an assaultive crime had the conviction been obtained in Michigan. MCL 780.621b(1)(d).

1.​Timing and Content of Application

The time for filing an application to set aside a conviction and the content requirements of an application are set forth in MCL 780.621d. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 3, for detailed information.

2.​Submission of Application to State Police

Although the original application must be filed with the convicting court, the applicant must also submit a copy of the application and one set of fingerprints to the state police.⁷¹ MCL 780.621d(8). The state police must forward a copy of the fingerprints to the Federal Bureau of Investigation (FBI). Id. The department of state police must report to the court any information in the department’s records regarding pending charges against the applicant, the applicant’s conviction record, whether the applicant has had any convictions set aside, and similar information that the department obtains from the FBI. Id. “The court shall not act upon the application until the department of state police reports the information required by [MCL 780.621d(8)] to the court.” Id.

3.​Submission of Application to Attorney General and Prosecuting Attorney

A copy of the application must be served on the attorney general and the office of each prosecuting attorney that prosecuted the offense(s) the applicant seeks to set aside. MCL 780.621d(10). The attorney general and prosecuting attorney must have the opportunity to contest the application. Id. If any of the convictions was for an assaultive crime or a serious misdemeanor, the prosecutor must, by first-class mail to the victim’s last known address, notify the victim of the assaultive crime or serious misdemeanor of the defendant’s application to set aside a conviction under MCL 780.772a and MCL 780.827a.⁷² MCL 780.621d(10). The victim has the right to make a written or oral statement at any proceeding under the SACA regarding the conviction. Id.⁷³

B.​Convictions That May Not Be Set Aside

MCL 780.621c(1) provides that a person must not apply to have set aside, and a judge must not set aside, any of the following convictions:

•​A felony or attempted felony for which the maximum punishment is life imprisonment. MCL 780.621c(1)(a).

•​An offense or attempted offense involving child sexually abusive activity or material, an offense or attempted offense involving prohibited use of the internet or a computer, CSC-II or attempted CSC-II, CSC-III or attempted CSC-III, or an assault or attempted assault with intent to commit criminal sexual conduct involving penetration or to commit CSC-II. MCL 780.621c(1)(b).⁷⁴ See Section 8.17(B).

•​CSC-IV or an attempt to commit CSC-IV, if the conviction occurred on or after January 12, 2015.⁷⁵ MCL 780.621c(1)(c).

•​Felony conviction for domestic violence if there is a previous conviction for misdemeanor domestic violence. MCL 780.621c(1)(e).

•​Human trafficking crimes (involving forced labor; holding victim as debt bondage; recruiting or benefiting from violations involving debt bondage or forced labor; human trafficking involving a minor; human trafficking involving terrorism). MCL 780.621c(1)(f). See PartIV for detailed information about human trafficking violations.

C.​Court’s Decision on Application

After a hearing on the application to set aside a conviction under MCL 780.621(1), the court may require that affidavits be filed and proofs be taken, as it considers appropriate. MCL 780.621d(11).

If the court finds the circumstances and the applicant’s behavior satisfactory from the date of the applicant’s conviction(s) until the date of his or her application to set aside the conviction(s), and if the court finds that setting aside the applicant’s conviction(s) “is consistent with the public welfare,” the court may order that the conviction(s) be set aside. MCL 780.621d(13).

“Each element [of MCL 780.621d(13)⁷⁶] is separate and distinct, and a trial court’s discretionary analysis must account for each element.”  People v Butka, ___ Mich ___, ___(2024). The word “‘public’ within the term ‘public welfare’ . . . refers to a community at large, as distinguished from an individual or a limited class of people.” Id. at ___. Accordingly, “the public welfare must consist of more than the subjective opinions of the two victims [who opposed defendant’s application].” Id. at ___. “[T]o set aside a conviction, courts must look beyond the crime itself to circumstances that occur after a defendant’s conviction, both in terms of the defendant’s individual circumstances and the forward-looking impact of setting aside a conviction on the public as a whole.” Id. at ___. Thus, “the Court of Appeals erred by holding that the statements of two individuals comprise the public welfare,” and “the trial court abused its discretion when it denied defendant’s application to set aside his conviction” based on “only the individual feelings and sensitivities of the two victims . . . .” Id. at ___, ___ n 5. “[N]o record evidence supported a finding that either the ‘circumstances and behavior’ of defendant or the ‘public welfare’ weighed in favor of denying defendant’s application.” Id. at ___ (reversing the Court of Appeals and remanding to the trial court for entry of an order setting aside defendant’s 2003 conviction for third-degree child abuse”).

“[O]nce a conviction is set aside pursuant to MCL 780.621(1)(a), that conviction shall not bar a court from setting aside a CSC-IV conviction pursuant to MCL 780.621(1)(d) in a subsequent ruling.” People v Koert, ___ Mich App ___, ___ (2024). In Koert, the defendant was previously convicted of CSC-IV, as well as two counts of delivery of less than five kilograms of marijuana; when he filed an application to set aside each of these convictions, “the trial court concluded that defendant’s subsequent felony convictions precluded it from setting aside his CSC-IV conviction” and “granted defendant’s application with respect to the marijuana convictions but denied it with respect to the CSC-IV charge.” Id. at ___. However, on appeal, the Koert Court concluded that “the trial court was permitted to set aside defendant’s marijuana convictions and his CSC-IV conviction in the same proceeding after the court ruled on the record effective immediately that the marijuana convictions were expunged.” Id. at ___ (noting “that the Legislature did not intend that defendant be barred from having all three of his convictions set aside in concurrent proceedings,” and that “the trial court’s decision to set aside the marijuana convictions enabled it to subsequently set aside the CSC-IV conviction during the same proceeding”).