Legal Question in Criminal Law in Michigan

Re: Embezzlement expungement

To expunge a conviction (i.e., set aside a conviction), more than 5 years must have elapsed since the conviction OR the end of any probation, jail or prison ... whichever occurs later. So, he may or may not have quallified on the ground.

Additionally, the embezzlement must be his ONLY criminal conviction .... felony or misdmeanor. That includes traffic misdemeanors, like DWLS, etc. A prior juvie record might also disqualify him.

Whether he's eligible requires a criminal history background check, which is part of the procedures in the court rules (submitting fingerprints to MSP, notifying the Attorney General and prosecutor, etc.). So, we cannot give a 100% accurate predication here.

I am a little surprised that your brother was not given HTYA (an informal probation with the possibility of the judge dismissing the case at the end of a successful probation period) five years ago. If it was requested and rejected, those same reasons may apply to a motion to set aside the same conviction (e.g., prior record, aggravating circumstances in the crime, etc.). For the present motion to set aside the conviction, the judge has the discretion to do so, or not do so. Even if your brother is technically eligible, the judge might still deny it for any reason (or no reason at all).

Reducing the charge to a misdmeanor would not be done unilaterally by the court. The prosecuting attorney office that handled the original case would have to agree to reduce the charge. Contact that office.

I recommend that your brother consult with an attorney in your area who handles expungments, so that he/she can delve more deeply into the history. The attorney will need the police report from the original case, a complete history of your brother's other cases (juvenile and adult), etc.

Best of luck.