Motion for "relief from disability"

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Motion for "relief from disability"

Postby lrp3rd » Fri Jun 15, 2012 11:55 pm

Can anybody tell me how to format a motion for "relief from disability." Thanks to you guys I am very familiar with the ORC and what it says but it doesn't tell you how to say it nor what format to use. I am slow but sure wading through this quagmire. Thank you for your time and trouble. I know you warned me:(
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Re: Motion for "relief from disability"

Postby MyWifeSaidYes » Sat Jun 16, 2012 12:20 am

I can get ahold of one and send it to you. Probably won't be until late tonight or Sunday.

This isn't legal help, it's just forwarding you a publicly available document.

With redactions. :mrgreen:
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Re: Motion for "relief from disability"

Postby sodbuster95 » Sat Jun 16, 2012 7:12 am

If MyWifeSaidYes forwards you a copy of one, then you should get a pretty good idea of the "what." It's really not all that complicated and the specific requirements as to content can be found in R.C. 2923.14.

As to format, there are some general guidelines (such as printed on one side only, 1 inch margins, double-spacing, etc.) but you should check with the clerk of whatever court you will be filing in for local rules. Courts are all pretty similar, but some like to do things a bit differently.
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Re: Motion for "relief from disability"

Postby lrp3rd » Sat Jun 16, 2012 4:10 pm

Thanks guys/gals! Any help will be greatly appreciated. Man, what a mess I've got myself in to. Where did the simple life go?
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Re: Motion for "relief from disability"

Postby bsctov » Sat Jun 16, 2012 7:37 pm

A motion for relief of disability will not relieve your federal M.C.D.V disability. In order for this to work, Ohio has to have a state law that takes away your gun rights for a Misdemeanor Crime of Domestic Violence in order for it to be restored under the section you are talking about and then, and only then will it also remove your federal disability. Judging by your other threads, and personal memory of your situation, I'm assuming this is what you are trying to do.




The ONLY ways to get that disability off is with a governors pardon,or via Sealing of the record. While Ohio's sealing process does not meet the "Expungement" requirement of Domestic Violence Gun ban, it removes the conviction from being considered as such under state law, which thereby lifts the federal disability as well because federal law requires a "Conviction" and since sealed records in Ohio are not considered "Convictions", it effectively relives the disability.


From what I have gathered from your other posts, you cannot have the record sealed.

And a Governors pardon is as close to impossible as you can get.

I have included a link to the ohio peace officers weapon disability guide, which outlines weapon disabilities.

"As an alternative to the sealing under R.C. 2953.32, the student could petition the Governor for an
unconditional pardon. As previously mentioned, since Ohio law does not recognize a misdemeanor
domestic violence conviction as an offense that would trigger a state weapons disability under R.C. 2923.13,
an application to the common pleas court pursuant to R.C. 2923.14 is not necessary. "



http://www.ohioattorneygeneral.gov/geta ... Weapo.aspx

IANAL, and this is not legal advice, but have dealt with this personally, and have done extensive research to that effect, and have also been advised by a lawyer that I had retained previously.
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Re: Motion for "relief from disability"

Postby cashman966 » Sat Jun 16, 2012 9:13 pm

I see that this document is dated 9/30/2011 and seems to take into account the changes made by HB 54 which went into effect on that same date, but I would argue that with the changes made to the relief from disability statute an order would remove the federal disability.

2923.14 Relief from weapons disability.
(A) Any person who is prohibited from acquiring, having, carrying, or using firearms may apply to the court of common pleas in the county in which the person resides for relief from such prohibition.

(B) The application shall recite the following:

(1) All indictments, convictions, or adjudications upon which the applicant’s disability is based, the sentence imposed and served, and any release granted under a community control sanction, post-release control sanction, or parole, any partial or conditional pardon granted, or other disposition of each case, or,if the disability is based upon a factor other than an indictment, a conviction, or an adjudication, the factor upon which the disability is based and all details related to that factor;

(F) Relief from disability granted pursuant to this section restores the applicant to all civil firearm rights to the full extent enjoyed by any citizen, and is subject to the following conditions:

(1) Applies only with respect to indictments, convictions, or adjudications, or to the other factor, recited in the application as the basis for the applicant’s disability;

(2) Applies only with respect to firearms lawfully acquired, possessed, carried, or used by the applicant;

(3) May be revoked by the court at any time for good cause shown and upon notice to the applicant;

(4) Is automatically void upon commission by the applicant of any offense set forth in division (A)(2) or (3) of section 2923.13 of the Revised Code, or upon the applicant’s becoming one of the class of persons named in division (A)(1), (4), or (5) of that section.


From the AG's document

However, in cases of a state misdemeanor domestic violence conviction, the federal statutory definition of “misdemeanor crime of domestic violence” excludes any conviction that “has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored.


The changes made to 2923.13 by HB 54 were made specifically to bring it into compliance with 18 U.S.C. 921(a)(20)(B)

It eliminated the limitation that only disability created under 2923.13 could be removed, in fact it added that the disability could be based on any factor at all. It also added the reference to restoration of all civil firearms rights.

From the bill analysis

Expands the categories of persons who may apply for relief from a disability against acquiring, having, carrying, or using any firearm so that any person who is prohibited from acquiring, having, carrying, or using firearms may apply for relief; under former law, only a person who was so prohibited solely by reason of the person's disability resulting from an indictment for, conviction of, or delinquent child adjudication for a felony offense of violence or an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in a drug of abuse could apply for relief.

Specifies that: (1) it is the intent of the General Assembly in making the changes described above to apply the changes retroactively to any restoration of rights granted previously to any person under any version of the statute providing for the relief from disability, and (2) the General Assembly is explicitly making those changes to clarify that relief from a weapons disability granted under that statute restores a person's civil firearm rights to such an extent that the uniform federal ban on possessing any firearms at all does not apply to that person, in correlation with a decision of the U.S. Supreme Court interpreting a statute of another state related to the federal ban.


It is clear what the legislative intent was, IANAL but it sure seems like this meets the requirements of 18 U.S.C. 921(a)(20)(B)

any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Ignorant or Stupid, I'm not sure which is worse. If someone were stupid, at least they'd have an excuse for all the dumb things they say.

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IANAL and neither are most people on this board, its just shows more with some than others.
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Re: Motion for "relief from disability"

Postby bsctov » Sat Jun 16, 2012 9:36 pm

cashman966 wrote:I see that this document is dated 9/30/2011 and seems to take into account the changes made by HB 54 which went into effect on that same date, but I would argue that with the changes made to the relief from disability statute an order would remove the federal disability.

2923.14 Relief from weapons disability.
(A) Any person who is prohibited from acquiring, having, carrying, or using firearms may apply to the court of common pleas in the county in which the person resides for relief from such prohibition.

(B) The application shall recite the following:

(1) All indictments, convictions, or adjudications upon which the applicant’s disability is based, the sentence imposed and served, and any release granted under a community control sanction, post-release control sanction, or parole, any partial or conditional pardon granted, or other disposition of each case, or,if the disability is based upon a factor other than an indictment, a conviction, or an adjudication, the factor upon which the disability is based and all details related to that factor;

(F) Relief from disability granted pursuant to this section restores the applicant to all civil firearm rights to the full extent enjoyed by any citizen, and is subject to the following conditions:

(1) Applies only with respect to indictments, convictions, or adjudications, or to the other factor, recited in the application as the basis for the applicant’s disability;

(2) Applies only with respect to firearms lawfully acquired, possessed, carried, or used by the applicant;

(3) May be revoked by the court at any time for good cause shown and upon notice to the applicant;

(4) Is automatically void upon commission by the applicant of any offense set forth in division (A)(2) or (3) of section 2923.13 of the Revised Code, or upon the applicant’s becoming one of the class of persons named in division (A)(1), (4), or (5) of that section.


From the AG's document

However, in cases of a state misdemeanor domestic violence conviction, the federal statutory definition of “misdemeanor crime of domestic violence” excludes any conviction that “has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored.


The changes made to 2923.13 by HB 54 were made specifically to bring it into compliance with 18 U.S.C. 921(a)(20)(B)

It eliminated the limitation that only disability created under 2923.13 could be removed, in fact it added that the disability could be based on any factor at all. It also added the reference to restoration of all civil firearms rights.

From the bill analysis

Expands the categories of persons who may apply for relief from a disability against acquiring, having, carrying, or using any firearm so that any person who is prohibited from acquiring, having, carrying, or using firearms may apply for relief; under former law, only a person who was so prohibited solely by reason of the person's disability resulting from an indictment for, conviction of, or delinquent child adjudication for a felony offense of violence or an offense involving the illegal possession, use, sale, administration, distribution, or trafficking in a drug of abuse could apply for relief.

Specifies that: (1) it is the intent of the General Assembly in making the changes described above to apply the changes retroactively to any restoration of rights granted previously to any person under any version of the statute providing for the relief from disability, and (2) the General Assembly is explicitly making those changes to clarify that relief from a weapons disability granted under that statute restores a person's civil firearm rights to such an extent that the uniform federal ban on possessing any firearms at all does not apply to that person, in correlation with a decision of the U.S. Supreme Court interpreting a statute of another state related to the federal ban.


It is clear what the legislative intent was, IANAL but it sure seems like this meets the requirements of 18 U.S.C. 921(a)(20)(B)

any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.



I strongly disagree.


HB54 fixed the US vs Caron case that said a state's relief from disability had to be "All or nothing". This has absolutely nothing to do with that. Ohio's past restoration statue didn't allow possession of dangerous ordnance to those whose rights were restored. HB54 removed that line, and allowed other classes of crimes to be restorable aswell., thus bringing it into line with federal law. However, in OP's case, Since Ohio does not impose a state weapon disability for MCDV, the court cannot relieve a disability that does not exist. Now, on the other hand, if Ohio DID impose a MCDV weapon disability, THEN, and ONLY then would the relief be viable on the federal level.

The added language about "any factor" doesn't mean anything with respect to FEDERAL prohibitors. If that was the case, they could have included a line that said "All federal firearms laws are hereby null and void" and had it be valid. :roll:

The document link I provided specifically addresses the fact that a relief of disabilities will not lift the federal M.C.D.V firearm disability.


Hope this helps clear up the misunderstanding.
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Re: Motion for "relief from disability"

Postby MyWifeSaidYes » Sat Jun 16, 2012 11:39 pm

bsctov wrote:...And a Governors pardon is as close to impossible as you can get...


Please cite your source.

The Columbus Dispatch ran an article showing that 14% of executive clemency requests are granted by Kasich.

The people that make these requests include those on death row and otherwise incarcerated, on parole, on probation and with serious criminal histories.

It also includes people like lrp3rd, with old, minor charges.

Who do you think makes up that 14%?
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Re: Motion for "relief from disability"

Postby bsctov » Sun Jun 17, 2012 1:42 am

MyWifeSaidYes wrote:
bsctov wrote:...And a Governors pardon is as close to impossible as you can get...


Please cite your source.




Please note that a majority of the 14% they were talking about in that article were simply commutations of sentences, and not full, unconditional pardons, as the OP would need to get his gun rights back. Applying for a pardon isn't like getting a giant eagle bonus card, it's very, very difficult.


Domestic Violence is a sticky area politically, and very few governors will want to be portrayed as "Soft on crime" by issuing a pardon to someone convicted of one of the Social No-No's. It's also troubling to me that you consider domestic battery to be a "minor charge", per your very own words. :?


It sucks, it's politics..


The 14% overwhelmingly consists of people convicted of white collar, administrative type crimes, many years ago.
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Re: Motion for "relief from disability"

Postby MyWifeSaidYes » Sun Jun 17, 2012 7:26 pm

bsctov wrote:Please note that a majority of the 14% they were talking about in that article were simply commutations of sentences, and not full, unconditional pardons, as the OP would need to get his gun rights back.


I do not recall that article breaking down the percentages of reprieves, commutations, conditional pardons and full pardons.

That's why I asked you to cite your source.

Applying for a pardon isn't like getting a giant eagle bonus card, it's very, very difficult.


It's a two-page downloadable form. You need to go to the Clerk of Courts and get a copy of the journal entry and sentencing info for your case. You need to get a release disposition form from the probation or parole department. You need to state why you think you deserve a pardon. You need to file it in duplicate. You need to have both copies of your application notarized. You need to mail it to the address listed on the application.

If it's harder than that, again, please cite your source.

Domestic Violence is a sticky area politically, and very few governors will want to be portrayed as "Soft on crime" by issuing a pardon to someone convicted of one of the Social No-No's.


One word: Kasich.

It's also troubling to me that you consider domestic battery to be a "minor charge", per your very own words.


Out of context.

Two drunks or drug addicts under the same roof can kick the s#!t out of each other and I won't care unless others (like their kids) are harmed. Spousal abuse is as bad as child abuse when the spouse cannot/will not defend themselves. That I do not condone.

The 'minor charge' I speak of is specific to user lrp3rd. I have chatted AT LENGTH with that user about his issue, so much so that I told him I would no longer push the issue of getting a pardon. Feel free to search for, and read, his posts here and at BFA.

You didn't know that, so no problem.
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Re: Motion for "relief from disability"

Postby bsctov » Sun Jun 17, 2012 9:05 pm

MyWifeSaidYes wrote:
bsctov wrote:Please note that a majority of the 14% they were talking about in that article were simply commutations of sentences, and not full, unconditional pardons, as the OP would need to get his gun rights back.


I do not recall that article breaking down the percentages of reprieves, commutations, conditional pardons and full pardons.

That's why I asked you to cite your source.

Applying for a pardon isn't like getting a giant eagle bonus card, it's very, very difficult.


It's a two-page downloadable form. You need to go to the Clerk of Courts and get a copy of the journal entry and sentencing info for your case. You need to get a release disposition form from the probation or parole department. You need to state why you think you deserve a pardon. You need to file it in duplicate. You need to have both copies of your application notarized. You need to mail it to the address listed on the application.

If it's harder than that, again, please cite your source.



I meant to say GETTING a pardon is very very difficult. Sorry.


As to the percentages, you can look it up yourself if you want.


Good luck OP
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Re: Motion for "relief from disability"

Postby bigdogcharlotte » Tue Oct 16, 2012 6:15 pm

If you were filing the motion for relief from weapons disability would the state of ohio be the defendant or the plaintiff? Also where can you get a template for the motion? I would like to thank everyone in advance, and say sorry for reviving this thread if it is too old. I just thought it would be better than starting a new thread and beating a whole new horse to death.
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Re: Motion for "relief from disability"

Postby skinfiddler » Tue Oct 23, 2012 10:17 am

I am new here and much in the same situation as the OP. Having pleaded guilty to the misdemeanor of selling a small quantity of marijuana out of state in 1976, I am unclear as to whether or not I even am under disability. Just to be sure I considered answering question 8a Yes, and attaching a letter. I called the court about how, who what to include and they were NO HELP whatsoever. They actually very short with me.

I have since spoken with a lawyer and he wants $500 to send the letter. I can't spare even that right now and would like to find some sort of template to follow. Any other help is appreciated.

Thx
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Re: Motion for "relief from disability"

Postby jsb78 » Fri Sep 25, 2020 9:20 am

I'm trying to figure out if my husband has to apply for relief from disability or not. He was convicted of a felony in 1999 (non drug/violent related). I keep reading conflicting statements about the law. Is he permitted to own/possess a gun? He served 2 years in a TN prison and has never had charges since. I'm confused if his rights were automatically restored once his time was served since it was non-violent/drug related or if because it was more than a year sentence, he as to apply for relief?
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