8.20Setting Aside Misdemeanor Marijuana Convictions
“Beginning on January 1, 2020,[1] a person convicted of 1 or more misdemeanor marihuana offenses may apply to set aside the conviction or convictions under [MCL 780.621e(1)].” MCL 780.621e(1).
See also the Michigan Judicial Institute’s Setting Aside a Conviction for Misdemeanor Marijuana Checklist.
Applications to set aside a misdemeanor marihuana offense must include:
•Full name of applicant;
•Current address of applicant; and
•Certified record of each conviction to be set aside. MCL 780.621e(2).
The application to set aside a misdemeanor marihuana offense must be served on the agency that prosecuted the offense. MCL 780.621e(3).
“A rebuttable presumption that a conviction for a misdemeanor marihuana offense sought to be set aside by an applicant was based on activity that would not have been a crime if committed on or after December 6, 2018 arises upon the filing of an application under [MCL 780.621e(1)].” MCL 780.621e(4). The agency that prosecuted the case may rebut the presumption by demonstrating “by a preponderance of the evidence that the conduct on which the applicant’s conviction was or convictions were based would constitute a criminal violation of the laws of this state or a political subdivision of this state if it had been committed on or after December 6, 2018.” Id.
“An answer made under [MCL 780.621e(4)] must be filed no later than 60 days from the date of service of the application.” MCL 780.621e(4). “If an answer is filed with the convicting court, the answering party must serve the answer upon the other parties to the matter.” Id.
If the prosecuting agency does not file an answer to an application to set aside a misdemeanor marijuana conviction addressing the rebuttable presumption within 60 days of service of the application, “the convicting court must within 21 days enter an order setting aside the conviction or convictions and serve a copy of the order upon the applicant, the arresting agency, the prosecuting agency, and the department of the state police.” MCL 780.621e(5).
C.Hearing Required if Rebuttable Presumption is Challenged
“If the prosecuting agency files an answer addressing the rebuttable presumption in [MCL 780.621e(4)], the convicting court must promptly set the matter for a hearing no later than 30 days from its receipt of the answer, and serve a notice of the hearing upon the applicant.” MCL 780.621e(6).
“At the hearing, the prosecuting agency must prove by a preponderance of the evidence that a conviction or convictions sought to be set aside by an applicant were based upon conduct that would constitute a criminal violation of the laws of this state or a political subdivision of this state if it had been committed on or after December 6, 2018.” MCL 780.621e(6).
“An applicant is not required to present evidence that his or her conviction was based upon conduct that would not constitute a criminal violation of the laws of this state or a political subdivision of this state on or after December 6, 2018.” MCL 780.621e(6). “The evidentiary burden under [MCL 780.621e(6)] rests solely on the objecting prosecuting agency.” Id.
“After a hearing under [MCL 780.621e(6)], the court shall enter an order denying or granting the application no later than 14 days after completion of the hearing and serve any written opinions and orders, including an order setting aside the conviction or convictions, upon the parties, including the department of state police. The rules of evidence do not apply to a hearing under [MCL 780.621e(6)].” MCL 780.621e(6).
D.Procedures After an Application to Set Aside is Granted
Records. “[T]he the arresting agency and the department of the state police shall maintain the nonpublic record created under [MCL 780.623] for use as authorized under [MCL 780.623].” MCL 780.621f(1).
No resentencing in other cases. “If an application to set aside a conviction or convictions is granted under [MCL 780.621e], the applicant may not thereafter seek resentencing in another criminal case the applicant was sentenced for during which the conviction or convictions at issue were used in determining an appropriate sentence for the applicant, whether or not the setting aside of the conviction or convictions would have changed the scoring of a prior record variable for purposes of the sentencing guidelines or otherwise.” MCL 780.621f(2).
Rehearing, reconsideration, and appeal of decision to set aside conviction. “A party aggrieved by the ruling of the convicting court considering an application under [MCL 780.621e] may seek a rehearing or reconsideration under the applicable rules of the convicting court or may file an appeal with the circuit court or, if applicable, the court of appeals in accordance with the rules of those courts.” MCL 780.621f(3).
E.Court-Ordered Financial Obligations
“The setting aside of a conviction under [MCL 780.621e] does not entitle the applicant to the return of any fines, costs, or fees imposed as part of the applicant’s sentence for the conviction or convictions or of any money or property forfeited by the prosecuting agency or any law enforcement agency as a result of the conduct leading to the conviction or as a result of the conviction itself.” MCL 780.621f(4).
1 Note, however, that 2020 PA 192 was not effective until April 11, 2021.