A motion to set aside a conviction asks the court that convicted you to vacate the judgment of guilt and release you from the penalties that came with it. You file the motion in that same court, after completing every part of your sentence and waiting out whatever period your jurisdiction requires. If the judge grants it, the conviction is vacated, but it is not erased: the record stays publicly visible with a notation showing the judgment was set aside.
What a Set-Aside Does and Doesn’t Do
When a court sets aside a conviction, it vacates the judgment of guilt and lifts the penalties and disabilities tied to it. Collateral consequences like certain housing restrictions and employment bars attached directly to the conviction fall away. Court records reflect the change, which can help when an employer or landlord reviews your history.
Here is what people most often get wrong. A set-aside is not an expungement and not a sealing. Unlike an expungement, which removes conviction information from public access, a set-aside leaves the record visible with a notation that the judgment was vacated.1National Conference of State Legislatures. Criminal Record Clearing: The Terminology A background check will still show the conviction. It will also show that the conviction was set aside. For some employers that notation is enough. For others, particularly in regulated industries, the underlying conviction still matters.
States use different labels for similar relief. Arizona, California, Michigan, Nebraska, and Oregon use the term “set aside” in their statutes, each with its own criteria and procedures.2National Conference of State Legislatures. Record Clearing by Offense Other states offer comparable relief under names like “vacatur” or “dismissal after completion of probation.” The label matters less than what the remedy actually does in your jurisdiction.
Who Qualifies
Eligibility rules differ, but a few requirements show up almost everywhere. You generally must have finished every part of your sentence before you can file. That means any jail or prison time served, probation or parole completed, fines paid, and restitution to victims paid in full. Courts will not entertain the motion while any piece of the sentence is still outstanding.
Most jurisdictions also impose a waiting period after you finish your sentence, ranging from one to several years depending on the offense. Felonies typically require longer waits than misdemeanors. During the waiting window you need to stay conviction-free; a new arrest or conviction will almost certainly disqualify you.
Some convictions are excluded outright in most places:
- Sex offenses that required registration are ineligible in nearly every jurisdiction.
- Serious violent felonies, including murder, aggravated assault, and armed robbery, are typically excluded.
- DUI and other serious driving offenses are often carved out as well.
Before you spend time on paperwork, check your state’s specific statute to confirm your offense is on the eligible list and that you have cleared the waiting period.
How to File the Motion in State Court
You can file this motion yourself. The process is similar across jurisdictions, though forms and local rules differ.
- Get the correct forms from the clerk of the court that convicted you. Many courts post them online in a self-help portal. Use only the forms from your specific court, since formats vary between jurisdictions and even between courts within one state.
- Fill them out carefully. You will need your case number, the date of the offense, the charges you were convicted of, details of your sentence, and the date you completed every sentence condition. Pull this information together before you start. Errors and omissions delay cases or get them kicked back.
- File with the clerk of the court that entered your conviction. Filing fees range from nothing in some courts to several hundred dollars in others. If you cannot afford the fee, ask the clerk for a fee waiver application; you will submit an affidavit showing financial hardship and the court will decide whether to waive or reduce it.
- Serve the prosecution. Most jurisdictions require you to deliver a copy of the filed motion to the prosecuting attorney’s office that handled your original case. The clerk can tell you who to serve and how.
Courts generally provide instructions with the forms, and some run self-help centers where staff can walk you through the paperwork. That said, if your charges were serious, if you expect the prosecution to oppose, or if the outcome matters for your employment or immigration status, the cost of a lawyer may be worth it.
Federal Convictions Take a Different Route
If you were convicted in federal court, a state-style set-aside is not available. Federal prisoners challenge their sentences through a motion under 28 U.S.C. ยง 2255, which asks the sentencing court to vacate, set aside, or correct the sentence. This remedy is only available to people currently in federal custody, and it requires showing one of four grounds: that the sentence violated the Constitution or federal law, that the court lacked jurisdiction, that the sentence exceeded the legal maximum, or that the conviction is otherwise subject to collateral attack.3Office of the Law Revision Counsel. United States Code Title 28 – Section 2255
A one-year deadline applies, running from the date your conviction became final, with limited exceptions for newly discovered evidence or newly recognized constitutional rights.3Office of the Law Revision Counsel. United States Code Title 28 – Section 2255 Missing it is usually fatal. There is no filing fee, and the district court clerk’s office provides standardized forms.
The bar is much higher than a state set-aside. You are not arguing rehabilitation or that justice favors clearing your record. You are arguing that something went legally wrong with the conviction or sentence. Consulting a federal criminal defense attorney is strongly advisable, because the procedural requirements are exacting and a poorly filed motion can limit your future options.
Evidence to Bring to the Hearing
Filing is only the first step. What you bring to the hearing is what persuades the judge. Courts want concrete evidence that you have turned things around, not a general statement that you are a better person now.
Useful material includes proof of steady employment, completion of education or vocational training, certificates from substance abuse treatment or anger management programs, community service records, and documentation of other constructive activity since the conviction. Bring originals and copies. If restitution was part of your sentence, bring proof of full payment. If you completed community service or special programs, bring the completion certificates.
Character reference letters can strengthen your case, but only when done well. Each letter should come from someone who knows you personally: an employer, mentor, community leader, or religious figure. The writer should identify themselves, say how long they have known you, and describe specific ways they have seen you demonstrate rehabilitation. Generic form letters with identical structure hurt credibility. Judges and prosecutors notice immediately when letters look coordinated rather than genuine.
What Happens at the Hearing
Once the motion is filed and served, the court schedules a hearing. The judge evaluates several factors to decide whether a set-aside serves the interests of justice. Statutory criteria vary, but courts commonly weigh:
- The nature and seriousness of the original offense
- How well you complied with every condition of your sentence
- Any subsequent criminal history
- How much time has passed since you completed your sentence
- Your age at the time of the original conviction
- Input from the victim, if any
Be ready to speak directly to the judge about why you are asking and how your life has changed. Be specific and honest. Judges hear many of these motions, and the ones that succeed tend to involve petitioners who acknowledge what happened, show what they have done differently, and explain concretely why the set-aside matters for their future.
The prosecution may oppose the motion, and victims of the original crime may speak or submit a written statement. If you know the victim or the prosecutor has strong feelings about your case, prepare to address those concerns respectfully.
If the judge grants the motion, they sign an order setting aside the conviction, and copies go to the relevant law enforcement agencies so their records reflect the change. Turnaround for agencies to update their records varies, so follow up if you need documentation for a specific deadline like a job application.
If the Motion Is Denied
A denial is not always the end. In many jurisdictions you can refile after more time passes, especially if you can show changed circumstances like additional rehabilitation programs, stable employment, or more conviction-free years. Some jurisdictions allow an appeal to a higher court, though that adds complexity and expense.
Ask the judge or your attorney what specific factors weighed against you. That feedback tells you exactly what to address before refiling. A denial after two years of clean living might become a grant after five years with additional evidence of rehabilitation.
Consequences a Set-Aside Will Not Fix
This is where people run into trouble. A set-aside removes many disabilities of a conviction, but several significant consequences survive it.
Immigration
If you are not a U.S. citizen, read this carefully. Under federal immigration law, a state set-aside granted for rehabilitative reasons does not eliminate the immigration consequences of a conviction. The Board of Immigration Appeals has held that state actions to vacate, dismiss, or otherwise remove a conviction through rehabilitative statutes have no effect on whether the conviction still counts for immigration purposes. The only type of vacatur that eliminates a conviction for immigration purposes is one based on a constitutional or procedural defect in the original criminal case, such as ineffective assistance of counsel or a failure to advise you of immigration consequences before your plea.4U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 12, Part F, Chapter 2 – Adjudicative Factors
If immigration status is a concern, talk to an immigration attorney before you file anything. The strategy for a set-aside that helps with employment differs fundamentally from the strategy for a vacatur that might resolve immigration issues.
Firearm Rights
A state set-aside does not automatically restore your right to possess firearms under federal law. Federal firearm restrictions based on felony convictions are governed by separate federal statutes, and many states similarly exclude firearm rights from the disabilities a set-aside removes. Whether you regain firearm rights depends on how your state’s set-aside statute interacts with federal law. Do not assume a set-aside makes firearm possession legal without getting a clear answer specific to your jurisdiction and your conviction.
Professional Licensing
Licensing boards for professions like nursing, teaching, law, and security often retain authority to consider your original conviction even after a set-aside. A set-aside may improve your chances, and some states have passed laws limiting how licensing boards can use conviction history, but boards are typically not required to ignore a set-aside conviction entirely. If professional licensing is your primary goal, research your specific board’s policies before assuming the set-aside resolves the issue.
Background Checks
Because a set-aside does not seal or erase your record, the conviction still appears on most background checks. The set-aside notation goes with it. Whether an employer, landlord, or other entity treats that notation favorably depends on them and on any fair-chance hiring laws in your area. That is a meaningful improvement over a raw conviction. It is not invisibility.