Do financial penalties survive the setting aside of a conviction? Case law and statutory language would appear to answer “yes” for restitution, but “no” for other financial penalties.

Restitution

The statutory language is clear that the setting aside of a conviction under the set aside statutes, MCL 780.621 et seq., does not eliminate the restitution obligation: “This act does not relieve any obligation to pay restitution owed to the victim of a crime nor does it affect the jurisdiction of the convicting court or the authority of any court order with regard to enforcing an order of restitution.” MCL 780.622(7).

In fact, a conviction automatically set aside must be reinstated if, upon motion of a victim or on its own motion, “the court determines that the individual has not made a good-faith effort to pay the ordered restitution.” MCL 780.621h(3). That said, outstanding restitution does not form a basis for reinstatement of the conviction where defendant has been making a good faith effort to pay restitution. People v Babcock, ___ Mich App ___ (2025) (Docket No. 370899).

Some judges may choose to consider whether restitution has been paid in the decision to grant or deny an application, but unpaid restitution is not a bar to granting the application. If that were the case, there would be surplusage in the statutory language that a set aside conviction “does not relieve any obligation to pay restitution . . . .” MCL 780.622(7); see also MCL 769.1a(13) (restitution survives judgment and constitutes a lien against all property of the defendant); MCL 780.766(13) (same, felony offenses); MCL 780.826(13) (same, misdemeanor offenses); MCL 780.794(13) (same, juveniles).

Other financial penalties

For other fines, fees, costs and assessments, there is no statutory language preserving these penalties. The effect of a conviction that is set aside is that the applicant “is considered not to have been previously convicted,” with exceptions not relevant to the question of financial penalties. MCL 780.622(1). In other words, once a conviction no longer exists, there are no outstanding financial penalties to satisfy (except restitution). This accords with the general rule that once a sentence is vacated, the obligations that accrue under that sentence no longer exist. People v Goulder, ___ Mich App ___ (2026) (Docket No. 373826) (once the court revokes probation and imposed a new sentence, the financial penalties that were part of the probation order no longer exist).

It may be true that the set-aside statutes expressly provide for no right of remission of previously-paid fines, costs, and fees, see MCL 780.621f(4) (marijuana set asides, no remission of “fines, costs, or fees” or forfeited property/money), and MCL 780.622(2) (all set asides, no remission of “any fine, costs, or other money paid as a consequence of the conviction”), but this prohibition does not preserve the original obligations.

A 2023 memorandum to trial judges from the State Court Administrative Office confirms this:

Update #4: Courts do not have authority to continue collecting fines, costs, or other assessments after a conviction has been set aside. When a conviction is set aside, that person, for purposes of the law, is considered not to have been previously convicted. MCL 780.622(1). MCL 780.622(7) provides that a set aside conviction does not relieve any obligation to pay restitution owed to the victim of a crime and it does not affect the jurisdiction of the convicting court or the authority of any court order with regard to enforcing an order of restitution. However, the Legislature did not extend that same status to fines, costs, fees, or other money. MCL 780.622(2) only states a defendant is not entitled to the remission of any fine, costs, or other money paid as a consequence of a conviction that is set aside. There is no continuing obligation to pay fines, costs, or other money like there is with restitution.

Payments received should be applied to restitution. No other fines, costs, or fees should be collected or accepted. Programming is in development for JIS court payment processes to apply payment to restitution while still accounting for fines, costs, and fees that are no longer collectable. [May 4, 2023, Memorandum to trial judges from Thomas P. Boyd, State Court Administrator, regarding Automatic Clean Slate Updates; 2023-05-04 Memo RE Automatic Clean Slate Updates.]

In sum, it would appear that financial penalties other than restitution do not survive the set aside process. (The author thanks attorney Daryl Waters for his invaluable assistance on this piece.)

Anne Yantus is a sentencing consultant working with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at the University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropriate. 

Due to the volume of inquiries, Anne is not able to respond to non-attorney requests for assistance or analysis of individual fact situations.

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