Friday, October 20, 2017
Tuesday, October 17, 2017
RESTORATION OF CIVIL RIGHTS
What rights are lost when a person is convicted of a felony?
A felony conviction suspends a person’s civil liberties. The person loses the right to vote, the right to hold public office of trust or profit, the right to serve as a juror and right to possess a gun. A felony conviction may also prevent a person from obtaining business and professional licenses, government secured loans and housing.
Can a person restore their Civil Liberties?
A person’s civil liberties may be restored. A person with only one Arizona felony conviction, whose civil rights were lost or suspended, had their rights automatically restored upon completion of a term of probation, or receipt of an absolute discharge from imprisonment if the person paid all imposed fines or restitution. However, this does not apply to the right to possess a weapon. To restore the right to possess a weapon the person must file an application with Superior Court in the county where you were convicted. A person with two or more Arizona felony convictions must file the applications to restore their civil liberties with Superior Court in the county where you were convicted. A separate application will be required for each felony criminal case.
What if my felony conviction was in another state?
A person wishing to restore their civil liberties must do so in the state in which the felony conviction occurred. Many states automatically restore a person’s civil liberties upon completion of probation or discharge from the department of corrections. A person should contact the state in which the conviction occurred to obtain information regarding the restoration process
What if I was convicted of a felony in federal court?
A person convicted of a felony in federal court may apply to restore their civil liberties in the county in which they currently reside. However, the state may not restore the person’s right to possess a firearm or have their judgment of guilt vacated/set aside.
How do I know if I am eligible to restore my rights?
If you only had one Arizona felony our rights were restored upon completion of probation or absolute discharge from the Department of Corrections as long as all fines and restitution were paid. However, to ensure that the court informs the elections office that you are eligible to vote you should file an application to restore your civil liberties. Also, the court will not set aside a judgment of guilt without an application. If you have two or more felonies in Arizona you may apply to restore your civil liberties upon completion of probation or two years from your absolute discharge as long as all your fines and restitution were paid.
What is setting aside judgment?
Upon completion of probation or sentence and discharge by the court a person may file to have their judgment set aside. Setting aside a judgment releases the citizen from all penalties and disabilities resulting from the conviction. Setting aside judgment does not seal or expunge ones record. The record is still accessible to the public. However, the record will have a notation stating that the judgment has been set aside. Some employers are more likely to view the setting aside of a judgment favorably. The setting aside of a judgment lets the employer know that the court is satisfied that the person has been rehabilitated. The setting aside of judgment does not apply to Department of Motor Vehicle records or Game and Fish. A felony that has been set aside may be used at a subsequent trial as a prior felony conviction. Persons convicted of criminal offenses involving infliction of serious physical injury, exhibition or use of a weapon, sexual motivation or a victim under fifteen may not have their judgment vacated.
Where can I get an application?
Go to the Superior Court website in the county where you were convicted and look for: ServiceCenter/ Forms/CriminalCases. This will take you to the Criminal Court forms, and you will want to click on “Requesting the Restoration of Civil Rights Form”. This is the application you will need to complete this process. You may also pick up an application in person at the courthouse. Carefully read over the form to ensure you know what information the form is requesting.
Where do I get a copy of my Absolute Discharge?
Certificate of Absolute Discharge from the Department of Corrections may be obtained by writing or visiting the Arizona Department of Corrections, 1601 W Jefferson, M/C 112, Phoenix, AZ 85007 and requesting the records. The information will be mailed in three to six weeks. Absolute Discharges from the Federal Bureau of Prisons may be obtained at the clerk’s office of the United States District Court, 401 W Washington, Phoenix; 123 N. San Francisco St, Flagstaff; 405 W Congress St, Tucson; Prescott Valley Courthouse, 325 W 19th St, Suite A, 3001 N Main St, Prescott Valley; or 325 W 19th St, Yuma AZ 85364. The person may wish to contact the restoration clerk at 602-506-4949 to assist with a federal conviction.
Once I complete the application, then what?
After making a copy of the completed application and absolute discharge (if you were sentenced to the Department of Corrections), file the documents at the Court Clerk’s desk marked criminal at the Court house. The Court will send you written notice of whether your request was granted or denied. It may take 90 days or more to get your notice. If the Court denies your application the court will provide you with the reason for the denial. You may file an application for reconsideration.
My Felony was dropped to a Misdemeanor, but background checks are still showing that I have a felony. Why?
It appears that the state does not forward the information regarding a person’s Class 6 designation from a felony to misdemeanor to anyone. This means that when background checks are done, the charges are still showing as felonies. You need to make copies of your designation form and write a note asking the following entities to please change the information in their databases. The three (3) entities that need to be contacted about this issue are:
Maricopa County Sheriff's Office
550 West Jackson Street
Phoenix, AZ 85003
550 West Jackson Street
Phoenix, AZ 85003
Arizona Department of Public Safety
PO Box 6638
Phoenix, AZ 85005-6638
PO Box 6638
Phoenix, AZ 85005-6638
Note: To ensure proper and faster routing of mail inquiries please write the department or subject relating to your inquiry on the outside of your envelope. They will send you an application that you will need to fill out.
Federal Bureau of Investigation
935 Pennsylvania Ave, NW
Washington, DC 20535
935 Pennsylvania Ave, NW
Washington, DC 20535
This information is just a resource, not legal advice. If you have any legal questions, please refer them to a licensed attorney.
The First United States Congress proposed 12 amendments to the Constitution in 1789. The states ratified ten of the proposed amendments: The Bill of Rights. The Fifth Amendment contains five procedural rights. If the government seeks to take someone’s life, liberty or property it must follow the Fifth Amendment’s rules.
The Fifth Amendment
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Protecting “Inalienable Rights” with the Fifth Amendment
The Fifth Amendment’s first four rights define procedures involving grand juries, double jeopardy, self-incrimination, and due process. These procedures are to protect a person’s life and liberty from government action. The fifth procedure is designed to protect property, preventing the government from taking property without compensation to the owner.
The Fifth Amendment’s protections for life, liberty, and property exist to limit the government’s interference with the inalienable natural rights of the Declaration of Independence. John Locke, the philosophical father of the Declaration, defined the right to benefit from one’s labor, that is to own property, as the third inalienable right. Thomas Jefferson substituted “pursuit of happiness” for “property” in writing the Declaration.
Grand Juries Place Citizens Between the Government and the Accused
Grand juries were enshrined in English law by the Magna Carta in 1215. The purpose was to place a group of citizens between those accused of a crime and prosecution by the King. Grand jury protections came to be viewed as a citizen’s shield from improper government prosecutions.
The Fifth Amendment requires that before the federal government can prosecute someone for a felony (capital, or otherwise infamous crime) it must present the evidence to a grand jury. A prosecutor presents evidence to a group of citizens (grand jurors) and those citizens determine, by a majority, if the government has enough evidence to indict (accuse) and prosecute someone for a crime.
The Double Jeopardy Clause, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, protects an individual from successive prosecutions for the same alleged act, to ensure the integrity of a not guilty finding, and to protect a defendant from the emotional, psychological, physical, and financial difficulties attached to multiple trials for the same alleged offense. The Double Jeopardy Clause includes three different rights. The right:
· To not face a second prosecution following a not guilty verdict
· To not face a second prosecution following a guilty verdict
· To not receive multiple punishments for the same offense
For the Clause to apply the first question is if “jeopardy” has “attached”. A defendant becomes in danger of a guilty finding once a trial begins and at that point “jeopardy” has “attached” and the protections of the clause kick in. Double Jeopardy protections apply to both federal and state prosecutions.
The best known Fifth Amendment protection is the right to remain silent. It applies not only to criminal defendants, but others from being forced to give testimony or make statements that may be used against them in a criminal prosecution. A witness in a proceeding, other than the defendant, may “plead the Fifth” and decline to answer questions if the witness reasonably believes such answers may implicate him in criminal activity.
The Miranda warnings advise criminal suspects of their right to remain silent. Advice to a suspect of his right to counsel comes from the Sixth Amendment. When law enforcement takes a suspect into custody, a suspect must be made aware of his rights. If law enforcement fails to inform a suspect of his rights, any evidence obtained may not be used against the defendant in a trial. These Fifth and Sixth Amendment guarantees apply equally to state and federal governments.
Due Process Clause
Due process is guaranteed for all citizens regarding the rights, guarantees, and protections provided by the U.S. Constitution and all laws passed under the Constitutions authority. Absent due process the government cannot deprive someone of life, liberty, or property.
Due process guarantees a judicial proceeding that is fundamentally fair, orderly, impartial and just. The Fifth Amendment Due Process Clause applies only to the federal government. Rights to Due Process in state proceedings were guaranteed by identical language in the Fourteenth Amendment.
Just Compensation Clause
The concept of eminent domain permits the government to take private property for public use. The Just Compensation Clause requires a government doing so, whether local, state or federal, to compensate the property owner whose property is taken.
Just compensation has been interpreted as fair market value, defined by what a willing, unpressured buyer would pay in an arm’s length transaction between unrelated parties. Historically, “public use” was considered to be for roads, public utilities or buildings. In 2005, the concept of public use was controversially extended by the Supreme Court to include government taking property from a private owner to make that property available for private commercial development.
Fifth Amendment Protects “Inalienable Rights” by Mandating Government Procedures.
The First and Second Amendments acknowledge “natural rights” and limit government actions regarding speech, religion, and self-defense.
The Third and Fourth Amendments provide process protections revolving around a more philosophical liberty interest perhaps best described as “privacy”. The Fifth Amendment acknowledges the rights of life, liberty and the pursuit of happiness by requiring specific procedures if such rights are to be infringed.
The Declaration of Independence philosophy of Natural Law finds constitutional expression in the Fifth Amendment.
 In Locke’s Second Treatise on Government. http://www.earlymoderntexts.com/assets/pdfs/locke1689a.pdf
 Jefferson took a bit of literary license in writing the Declaration. http://historynewsnetwork.org/article/46460
 The Bill of Rights initially applied only to the federal government. After ratification of the Fourteenth Amendment, most Bill of Rights protections applied to the states. The right to a grand jury indictment still applies only to the federal government.
 Grand juries typically are made up of 18 to 23 members. Trial juries range in number from 6 to 12. The larger juries are thus “grand”.
 “Jeopardy” and “attach” are legal terms of art.
 Double Jeopardy protections have been extended to state prosecutions by the 14thAmendment, unlike the Grand Jury provision. The Zimmerman/Martin controversy is an example of why grand juries should be used in state prosecutions as well, although only 22 states have grand jury provisions.
 This is enforced through a court created “exclusionary rule”. The exclusion of evidence does not happen automatically, but rather is the result of a request to the court by defense counsel through a “Motion to Suppress Evidence”.