Setting Aside a Conviction Does Not Restore Firearm Rights in Arizona


State v. Hall
Court of Appeals of Arizona
March 20, 2014

Holding: The Court of Appeals of Arizona held that setting aside of defendant’s conviction would not also restore the defendant’s right to possess a gun. Therefore, the district court’s decision to deny defendant’s request to set aside his conviction because it would also restore defendant’s gun rights was incorrect.

Why This Case is Important: A.R.S. §13-907(C) states that a judge shall order a person be released from all penalties and disabilities resulting from a conviction after setting aside that conviction. The language in this statute does not specify which rights may be restored, thus it can be construed as restoring all rights including firearm possession rights. However, the Legislature created separate statutes, A.R.S. §13-905 and §13-906, that specifically deals with firearm rights. This shows the legislature’s intent in not including firearm possession as one of the rights to be restored when a person gets their conviction set aside.

In a situation where statutes conflict with one another, the court will attempt to harmonize them in order to get both effects. Furthermore, when a general statute conflicts with a specific one, the specific statute will govern. Therefore, a judge may set aside a person’s conviction without restoring that person’s right to possess firearms unless they meet the requirements detailed in §13-905 and §13-906.

Facts of This Case: In 2005, defendant pleaded guilty of armed robbery and was sentenced to a term of imprisonment. Defendant was discharged in 2007, and in 2012 he petitioned the court to set aside his conviction and restore his right to bare firearms. The district court restored the defendant’s civil rights with the exception of his right to possess firearms. The district court also denied defendant’s request to set aside his conviction, reasoning that doing so would restore his gun rights. Defendant appealed the district court’s ruling, arguing that the court abused its discretion in concluding that setting aside defendant’s conviction would automatically restore his right to possess firearms.

Defendant contends that the statutory schemes governing the restoration of a person’s rights and the statutory schemes governing setting aside a person’s convictions are separate from one another. Because they are separate, the language in A.R.S. §13-907(C) detailing on what would be restored if a judge grant’s a petition to set aside a person’s conviction does not include the person’s civil rights. The Court of Appeals of Arizona reviewed the statute and agreed with the defendant.

The Court of Appeals had previously concluded that it was the legislature’s intent that the two statutory schemes were to be separate. The Court also explained that the legislature addresses the right to bare firearms separately from other civil rights. Both of these facts support the defendant’s argument.

The Court then addresses the issue that some of the language of A.R.S. §13-907(C) supports the district court’s interpretation. The specific language of the statute states that “the judge…shall… order that the person be released from all penalties and disabilities resulting from the conviction”, which includes firearm rights. The court explains that when two statutes appears to be under conflict with each other, the court will try and harmonize the language to give both an effect.

Under A.R.S. §13-907, a person is eligible to apply to have a conviction set aside as long as the conviction was not a dangerous offense and the person fulfilled his probation or sentence. However, A.R.S. §13-905 and §13-906 states that a person will not be eligible to apply for restoration of their firearm rights until ten years after discharge from probation or imprisonment if that person was convicted of a serious offense. Furthermore, a person who was convicted of a non-serious offense will be ineligible to apply for restoration of firearm rights until two years after discharge.

The Court agrees with the principle that when a general statute conflicts with a specific one, the specific statute will govern. Since §13-905 and §13-906 specifically governs the restoration of firearm rights while §13-907 is more general in restoring rights, the former two statues should control. Therefore, allowing a judge to set aside a person’s conviction without restoring their rights to bare arms adequately harmonizes the statues while keeping with the principle.

Key Language: A.R.S. §13-907 deals with restoration in a general way while §13-905 and §13-906 specifically deals with the restoration of firearm possession rights. Because the Legislature took the time to create the statutes dealing with firearm rights, it is their intent that §13-907 does not automatically restore such rights when a person’s conviction is set aside. Therefore, the correct interpretation of these statutes allows a judge to set aside a person’s conviction without restoring their firearm rights unless the person meets the requirements set out in §13-905 and §13-906.

Expert Advise: “In Arizona, the court may set aside a person’s conviction without restoring that person’s firearm rights. The restorations of such rights are governed separately by A.R.S. §13-905 and §13-906.” -Attorney Mathew Higbee.

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