Can my friend purchase a gun in Michigan with this charge?

[GAMEOVER44]

He was in a scuffle (fist fight) with a guy years ago and got charged with misdemeanor assault and battery. After the sentence of probation for one year the judge said this is to be be dismissed but he was still placed on probation and served it cleanly for one year.

He asked me if he is able to purchase a firearm and I didnt know what to tell him. Can anyone help? This is in Michigan, thanks.

 

[Mainsail]

See Form 4473 and the questions thereon.

Have you ever been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation?

But think about it; would it be wise for him to take your word for it?

EDIT to add: If your friend lacks the self control to stay out of fist-fights then maybe guns aren't the best hobby for him.

 

[HexHead]

If he was convicted of a misdemeanor for which he could have been incarcerated for more than a year, no.

 

[Midwest]

I thought felonies were a year or more and misdemeanors were a year or less.


Edit Found this........

http://www.criminaldefenselawyer.com/resources/michigan-misdemeanor-crimes-class-and-sentences.htm


"Michigan has three classes of misdemeanors: misdemeanors punishable by up to 93 days in jail, misdemeanors punishable by up to one year in jail, and high court misdemeanors which are punishable by up to two years in prison. High court misdemeanors are similar to felonies."
.

 

[il.bill]

Time to ask a lawyer, methinks.

 

[denton]

Yes, it is time to ask an attorney.

I suspect, but do not know, that the operative phrase is "more than a year". If the maximum sentence was 365 days, that is not more than a year. If it was 366 days, then it was.

That is something to explore with someone who went to law school and passed a bar exam.

 

[Jim K]

The language in those laws is the reason the GCA says "for MORE THAN one year." So, on the face of it, he should be able to buy a gun, but I certainly suggest an attorney.

The problem is that if he tries to buy a gun and is turned down, he can be charged with the attempt, which is a crime in itself.

Jim

 

[pjeski]

http://www.migunowners.org/forum/forumdisplay.php?180-Legal-Beagle-Corner

 

[MedWheeler]

Evidently, in Michigan at least, certain misdemeanors can be punishable with sentences of more than one year. This would then make the recipient of such a sentence a prohibited person as far as gun/ammo possession goes.

I doubt that simple assault/battery, such as what a typical "fist fight" would involve, would qualify as such a "high court misdemeanor."

However, your friend will have to get the final word on that, and not from anyone here.

EDIT: The post directly beneath this one makes a considerable point as well.

 

[AlexanderA]

the judge said this is to be be dismissed but he was still placed on probation and served it cleanly for one year

The question, then, is whether this was a "conviction," or not. If the charges were indeed dismissed, there would be no conviction. This sounds a lot like "deferred adjudication," in which charges may be dropped if the person keeps his nose clean for a probationary period. It should be easy enough for him to check with the court regarding his conviction status.

 

[MedWheeler]

Mainsail writes:

EDIT to add: If your friend lacks the self control to stay out of fist-fights then maybe guns aren't the best hobby for him.

This comment, with no background information supporting it, is presumptive, judgmental, and off-thread-topic.

 

[Red Wind]

This comment, with no background information supporting it, is presumptive, judgmental, and off-thread-topic.

If that isn't the truth. Just reading it made me angry. I'll un-holster Roscoe for the rest of the evening.

 

[Frank Ettin]

Yes, it's time to see a lawyer. Beyond the issue under federal law, the laws of some States also have separate disqualifications for certain misdemeanors, especially those involving some form of violence. I don't know about Michigan.

 

[GAMEOVER44]

Alright, well thanks was just asking ill tell him hes going to have to just look into this one himself. Hes not a violent guy and the guy that he actually got in the fight with had a long rap sheet including operating and maintaining a drug house.

This is all thats on his record is the A and B.

 

[USAF_Vet]

Imprisonment for one year is NOT the same as imprisonment for more than one year, as the 4473 asks. He could have been convicted and served 365 days in jail for that charge and still be able to buy a gun. Serve 366 and you've lost your 2A rights. If however, as part of the agreement of probation, the charged and conviction is cleared from his record, then he can answer that he has never been convicted of a crime.

I got charged with one of those "up to one year" misdemeanors, served 90 days probation, cleared my record upon completion and have purchased guns and obtained my CPL. I did check with a lawyer prior to my plea deal, and he verified that the charge and conviction would not effect my 2A rights. Have your buddy check with a lawyer (consultations are usually free) but I'd be willing to wager it won't show up on NICS.

ETA: I know some one who, unsure if they would pass a BGC or not, applied for a Michigan Pistol Purchase Permit. If they don't pass, its not like they lied on a federal form so a denial isn't going to potentially land them in jail for attempting to buy a gun while prohibited. That person was denied, by the way, and the sheriffs office simply advised them to take care of the open issue in another state that popped up on the BGC.

I haven't gotten a PPP since before they changed the law last time, so I don't know what forms are involved anymore. All I know is that if buying from a private party, you still gotta go to the cop shop for the permit. Buying from an FFL, the dealer does the state registration form on the spot. If trying this method, have your buddy apply for a PPP at the local police for a private purchase of a handgun, they will do the BGC and either hand him his forms or inform him he is denied and why. State law allows for up to a $10 fee for the notary on the permit, but they only charge the fee if the permit is granted.

 

[MedWheeler]

USAF_Vet writes:

If however, as part of the agreement of probation, the charged and conviction is cleared from his record, then he can answer that he has never been convicted of a crime.

I don't know about this. The form askes if the buyer has "ever been convicted...". Having had a conviction cleared from record does not eliminate the fact that the subject was convicted in the first place.

Also, serving less than 366 days does not make one "okay" if said one could have been made to serve 366 or more.

 

[USAF_Vet]

USAF_Vet writes:



I don't know about this. The form askes if the buyer has "ever been convicted...". Having had a conviction cleared from record does not eliminate the fact that the subject was convicted in the first place.

Legally speaking, it does. I'd be more willing to accept the opinion of a lawyer, like the one I had for my case, than random internet guy opinions. No offense, but I did my homework. I can lawfully and legally state that I have not been convicted of a crime if the conviction has been overturned or cleared by a judge.

Also, serving less than 366 days does not make one "okay" if said one could have been made to serve 366 or more.

That's what I was getting at, and completely implied by the misdemeanor sentencing of UP TO ONE YEAR. Obviously this does not include high misdemeanors, as define by up to two years in prison, and felonies that have a sentencing potential of more than one year. Neither of those are up for debate, or even discussion here. Quit nitpicking.

 

[RetiredUSNChief]

11.c. Have you ever been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation? (See Instructions for Question 11.c.)

EXCEPTION to 11.c. and 11.i.: A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had their civil rights
(the right to vote, sit on a jury, and hold public office) taken away and later restored AND (2) the person is not prohibited by the law of the jurisdiction where the conviction occurred from receiving or possessing firearms. Persons subject to this exception should answer “no” to 11.c. or 11.i., as applicable.


It would seem that, in accordance with Form 4473's own explanation on the back of the form, your buddy should be good to go. (If what you said is accurate.)

HOWEVER, that said, I'm no attorney and if Frank Ettin (who IS an attorney and who knows what Form 4473 says) thinks your friend should see an attorney about this, then that's what he should do.

 

[opr1945]

if at the "trial" the judge took case under advisement (on hold) then a year later rule the charges to be dismissed, there would be no conviction to remove.