Frequently Asked Questions

Frequently Asked Questions

ACRONYMS USED:

HYTA: Holmes Youthful Trainee Act
SORA: Sex Offender Registration Act
SOR: Sex Offender Registry
CSC: Criminal Sexual Conduct
PSI: Pre-Sentencing Information Report

CRIMINAL PROCEEDING (miscellaneous)

• Who can qualify for HYTA?

If the defendant is, at least 17 and no older than 20, then ask the attorney to determine whether or not you would qualify.


• Can character reference letters, on my behalf, help my case?

YES! This can help the judge determine the kind of person you are and whether or not you are worthy of a "second chance".

Letters can also help the probation officer who files the pre-sentencing report (PSI) to determine what sentence would be best in your case.


• Who should I ask to write a character reference for me?

Ask family members, clergy, teachers, principals, friends of the family, employers, etc. Ask anyone who knows you well and has known you for some time.


• Who should the letters be sent to?

Ask your attorney, but generally letters are addressed to the Judge and then turned over to your attorney to be delivered to the Judge. Also ask your attorney to give copies of the letters to whoever is working on your pre-sentencing report and keep copies for your records.

HOLMES YOUTHFUL TRAINEE ACT (HYTA):

• What is HYTA?

HYTA (MCL 762.11 through 762.16provides judges with a means of ordering rehabilitative treatment and/or confinement for up to three years for youthful offenders without proceeding to an adjudication of guilt and a criminal conviction.


• What are the age requirements for consideration under HYTA?

Youths who commit offenses between their 17th and 21st birthdays, and juveniles over 14 who have been waived from juvenile court, are eligible for HYTA status if their crime is eligible for sentencing under HYTA. Some crimes are excluded.


• Must the defendant consent to the use of HYTA?

Yes. Both the defendant and his or her guardian must consent.


• Must the prosecutor consent to the use of HYTA?

No. The statute does not require it.


• May HYTA status be terminated or revoked?

Yes. HYTA status may be terminated or revoked at any time in the discretion of the judge.


• What proceedings are required before terminating or revoking HYTA status?

HYTA status may be revoked only after a hearing at which the defendant has a right to counsel. The defendant is entitled to notice of the charges, and a determination based on reliable information on whether a violation has occurred.


• What happens at the end of the HYTA period if successfully completed?

The statue does not specifically mandate dismissal of the charges, but they are apparently allowed to lapse as the statute does speak to "final release." All proceedings relative to the disposition of the criminal charge and to the assignment to HYTA status are to be closed to public inspection.


• Do youths sentenced under HYTA for a CSC have to register on the SOR?

Youths sentenced under HYTA prior to October 1, 2004 DO have to register, although they can petition the court to have their registration time period reduced to 10 years rather than 25 years. Those sentenced to HYTA after October 1, 2004 never have to register unless they lose their HYTA status.


• What are the consequences of terminating or revoking HYTA status?

The criminal case against the youth shall be reinstated at the point where the youth's consideration as a youthful trainee had commenced and a conviction will be entered. If the youth was sentenced after October 1, 2004 of a CSC they will have to register on the SOR.

SETTING ASIDE, EXPUNGING CONVICTIONS (Act 213 of 1965):

• Is there anything I can do to clear my record of a conviction?

Yes, you might be able to have your conviction set aside (expunged). If you are able to set aside (expunge) your criminal conviction, it is treated the same as if that conviction never occurred. Therefore, on housing or job applications, when asked whether you have ever been convicted of a crime, you can answer "no."


• How can I determine whether or not I qualify to have my record set aside?

The ability to expunge a conviction from your record is governed by statute. (MCL §780.621). Some basic rules to be aware of include:

You cannot have ever been convicted of more than one offense (misdemeanor or felony).

At least five years must elapse since (1) the date of your conviction (if you were not incarcerated) or (2) from the date you were released from incarceration before you can apply to set aside your conviction.

Look over the Application to Set Aside Conviction. Page 2 walks you through whether or not you would qualify to petition the court to have your record set aside.

• Should I hire an attorney to help me with this process?

Absolutely! If at all possible hire an attorney because you only have one chance at having a record set aside.


• Are there some criminal convictions that CANNOT be expunged?

The type of crime for which you were convicted does matter in determining whether or not you will be able to have it set it aside. There are certain crimes or offenses which cannot be expunged from a record including:


A conviction for a traffic offense;

A conviction for any felony for which the maximum possible sentence is life imprisonment (this is true even if the actual sentence handed down is less than a life sentence);

A conviction for a violation or attempted violation of laws concerning criminal sexual conduct (second degree CSC; third degree CSC; assault with intent to commit CSC).

• Can a 4th degree CSC be expunged or set aside?

Yes, as long as you meet all criteria for having a record set aside.


• Where do I go to get my conviction expunged?

Your application to set aside your conviction must be filed with the same court in which your conviction was entered. Thus, if you were convicted in the 17th Circuit Court, you must file your application with the 17th Circuit Court. If your conviction was in 61st District Court, your application must be filed with the 61st District Court. You can contact the court clerk to determine the exact date of your conviction and the exact crime/charge for which you were convicted.


• How do I go about trying to get my conviction expunged?

You must complete and file with the court in which the conviction occurred an Application to Set Aside Conviction (Michigan Approved Court Form MC- 227). The back of the court form has complete instructions that you must follow.


• Where else can I obtain the form?

You can also pick up this form at the court clerk's office. You may also obtain the form at your local public library.


• What happens after I file my application with the court?

Once you have filed your application and the court determines that everything is in order a hearing will be set. At this hearing, you will be questioned by the "People" represented by the prosecuting attorney. The victim(s) of your crime may also be notified of your application and have the right to be present at this hearing as well.


• Am I entitled to be represented by counsel at this hearing?

You can appear at this hearing as your own attorney or hire counsel to represent you. There is no right to court appointed counsel for you at this hearing. It may be wise for you to hire an attorney to represent you in this process since there is so much at stake.


• If my application is denied can I try again at a later date?

NO! You only have one opportunity to have a record set aside. This is why it would be wise to hire an attorney to represent your interests.


• As long as my application is in complete and I attend the hearing, do I have the right to have my conviction expunged?

No. Setting aside a conviction is a privilege and not a right. The court will look at your circumstances and your behavior during the period between the date of your conviction and the time you filed your application for expungement. If the court determines that circumstances warrant setting aside your conviction and that so doing would be consistent with public welfare, it may enter an Order Setting Aside the Conviction (Michigan Approved Court Form MC 228.)