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Appealing a FOID denial from years ago?


nbartlet

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Hello,

 

I am here again looking for information on how to get my rights restored in Illinois. Molly graciously helped me with some good information back in 2017/18 before I moved out of state. Unfortunately, I took up residence in another state before I was able to complete this process. Also, I was told by the Pardons and Parole board in my new state (Georgia), that they could grant me restoration of gun rights after I was a resident here for 1 year. I have applied for that restoration and am awaiting a response, but I just spoke with an attorney in GA that has advised me that even if this state grants me those rights, it would remain a federal offense for me to possess a firearm because the federal ban would not be lifted, and can only be lifted from the state where my convictions occurred (llinois).

 

Several hurdles now exist:

  1. My last FOID denial was several years ago. I believe in 2017. I'm under the impression that I must appeal within 35 days of that denial. I don't even know if you can reapply after the 35 day period, or if that decision now becomes final. ( Fuller v. Department of State Police, 2019 IL App (1st) 173148)
  2. But also, I cannot reapply for a FOID because I am no longer a resident of Illinois and,
  3. I cannot petition the court in the county that I live in, because again, I no longer reside in any county in Illinois.

On my last denial, I was told that because my felony convictions were forcible felonies, I had to petition the circuit court. There may have been a letter form ISP, but I would no longer have that letter. What I believe happened though, is that I got tired of waiting and called and spoke to someone at ISP in Springfield and they gave me that information over the phone.

 

I am seriously thinking of taking up residency in Illinois again. Not necessarily moving my whole family back, but if I need to rent an apartment or live with someone for a certain amount of time, so that I can get an Illinois drivers license and reapply for my FOID, I will do so. My questions are.

  1. If I re-establish residency in Illinois. Should I reapply for a FOID and wait for the inevitable denial? Or simply petition the court?
  2. Will I need to have applied for Clemency from the Governor? I've read where the States Attorney has filed a motions to dismiss because all other options weren't exhausted if someone hadn't applied for clemency.

Does any of this stuff sound like I might have a remote chance of success? I honestly don't understand why the law (ILCS 430) states that 20 years after having completed sentence imposed that this isn't just automatic.

 

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Man, there are a lot of moving parts here.

 

I would think to get through the tangled mess, perhaps look into hiring an attorney (maybe in Illinois?). I would think it would be easier and less expensive than renting an apartment just to enable residency. Just my two cents worth.

 

Thank you. I feel like I have one of the most complicated situations.

 

I have called a few attorney's in Illinois, and the ones that have called back haven't been willing to spend the time to listen to that full story before they tell me that it will be expensive and complicated. One guy did say there might be an unproven method that he could try, but it would be very expensive and have a low probability of success because of my residency situation. I don't necessarily mind it being somewhat expensive, but if I'm going to do it, I have to know that there's at least a 50/50 chance.

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Worth mentioning too (even though it may be obvious), I really don't want the FOID card. I just want Illinois to restore my firearm rights, which would lift the federal ban everywhere. With that being said, I know that process must have to include a FOID denial to even be heard before a judge. I can't help but wonder though, if by some stroke of luck I was issued a FOID card by ISP because my felony is way over 20 years old, does that automatically restore my rights from the federal perspective?

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How can Georgia give gun rights back if then it would still be a Federal Restriction to possess a firearm?

If you have a full blown Federal Restriction on owning and or possessing then would you not be looking at taking this up with the Federal Courts?

 

I’m with Graigcelia on this one, lots of moving parts and not the least of which is moving on a temp basis to fix a FOID card.

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How can Georgia give gun rights back if then it would still be a Federal Restriction to possess a firearm?

If you have a full blown Federal Restriction on owning and or possessing then would you not be looking at taking this up with the Federal Courts?

 

I’m with Graigcelia on this one, lots of moving parts and not the least of which is moving on a temp basis to fix a FOID card.

 

Well that's the thing, I don't have a federal charge or conviction so I can't really take it up in Federal Courts. But, from my understanding, when you are convicted of a felony, the state reports the conviction to the Feds, and that's when it becomes a federal offense for that felon to possess a firearm. From what I'm told now, the only state that can lift that "ban", is the state in which the ban was originated from.

 

This is a quote from the attorney I spoke with today.

Lawyer: "PAP does not necessarily know federal laws and they do not purport to give you comprehensive legal advice (or really any legal advice at all). They can restore your gun rights in GA, but they cannot do anything about the federal prohibition. Your option there is to get a pardon from the IL governor. There may be other avenues of relief in IL, but I'm not an IL lawyer and cannot advise you on that. "

 

Me: "So hypothetically would this be a 2nd amendment sanctuary situation where if I were found in possession in GA of a firearm say during a traffic stop, nobody would necessarily prosecute me? How would I be held responsible federally if GA refused to charge me?"

 

Lawyer: "The federal government would prosecute you. They do so regularly and zealously. The way it would work, if this is what you are asking, is that first it would have to be detected, just like any crime. Whoever detected it, if some agency other than the ATF, would refer it to ATF for investigation. ATF would, if appropriate, either arrest you without a warrant or obtain a warrant for your arrest. The U.S. Attorney in whichever federal district in GA you reside would get a grand jury indictment against you, file it with the clerk of U.S. District Court in that district, and the prosecution would proceed from there. The ATF, the U.S. Attorney, and the federal judge all would not care a bit about any pardon you got from PAP, because the federal felon in possession statute (18 USC 922(g)) only gives you an out if you are pardoned by the state that convicted you."

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Had an attorney join board recently. No charge phone consult if you wanted to check with them.

 

https://illinoiscarry.com/forum/index.php?showtopic=40387&page=5&do=findComment&comment=1295627

Thank you. I was excited to read that until I realized he was the attorney that I contacted who said: "The only recognized way to restore your firearm rights in IL – based on your records – is to file a petition in the circuit county in which you reside. This process does not allow out-of-state residents to do so. The only way we can do this is filing a unique petition in Cook County, but we would be challenged at every step of the way, and there is no guarantee we will be successful. If you are interested, please give us a call, but I want to be upfront that this process will be relatively expensive and have a small probability of success."

​I will check with him anyway. I do appreciate him being upfront about the cost and expectations. I never mentioned being willing to re-establish residency in Illinois. Maybe this will help.

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You do not have to live in IL to seek rights restored, from the ISP FAQ:

 

 

I was convicted of a felony in Illinois but no longer live in Illinois . . . what can I do to appeal this prohibitor?

You may file an appeal in Illinois. Please contact the Office of Firearms Safety at ISP.FOID.Appeals@illinois.gov to request additional information.

 

Please let us know what you find out - it would be very helpful.

 

added: If you end up having to file a petition in circuit court, be sure to file a petition for a pardon from the governor first.

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You do not have to live in IL to seek rights restored, from the ISP FAQ:

 

 

I was convicted of a felony in Illinois but no longer live in Illinois . . . what can I do to appeal this prohibitor?

You may file an appeal in Illinois. Please contact the Office of Firearms Safety at ISP.FOID.Appeals@illinois.gov to request additional information.

 

Please let us know what you find out - it would be very helpful.

 

added: If you end up having to file a petition in circuit court, be sure to file a petition for a pardon from the governor first.

 

Thanks again, Molly! I've sent an email to them and will let you know when I hear back. I'm also beginning the paper work for the pardon.

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The short answer is

 

yes, it’s possible,

 

yes Georgia is correct that only the State of conviction can restore the right (Georgia can’t undo a conviction that it has no jurisdiction over),

 

yes you can do it out of State, but it won’t be a quick process.

 

If it’s a forcible felony, by statute it must be appealed to the Circuit Court.

 

Yes, it you will definitely want (need) and attorney, and it likely won’t be cheap.

 

The fact that it’s been over 20 years might make it easier to get your right restored, but it still needs to be done. The record doesn’t just disappear automatically.

 

And to repeat a previous point: you’ll want to have an attorney. An Illinois one.

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The short answer is

 

yes, it’s possible,

 

yes Georgia is correct that only the State of conviction can restore the right (Georgia can’t undo a conviction that it has no jurisdiction over),

 

yes you can do it out of State, but it won’t be a quick process.

 

If it’s a forcible felony, by statute it must be appealed to the Circuit Court.

 

Yes, it you will definitely want (need) and attorney, and it likely won’t be cheap.

 

The fact that it’s been over 20 years might make it easier to get your right restored, but it still needs to be done. The record doesn’t just disappear automatically.

 

And to repeat a previous point: you’ll want to have an attorney. An Illinois one.

 

Yep, I do know that Georgia can't undo the Illinois Conviction. By my own doing I guess, I was kind led to believe that I would be safe to possess in Georgia once they did that. I had asked about the Federal Prohibition still existing and mentioned that I couldn't understand how I would be able to purchase a firearm seeing that I wouldn't pass a background check. They said something to the effect that I would receive paper work that I would be able to provide to an FFL to allow them to sell to me. It didn't make sense, but I guess I wanted to believe it.

 

Pardon Board:

You are correct. The state of Georgia cannot pardon another state's conviction but we can grant civil and political rights on the conviction. And we can consider you for restoration of firearm rights as well. But if granted, you are only permitted to possess a firearm within the state of Georgia. I'm not sure what you mean by will the right be reinstated at a federal level. Can you explain?

 

Me:

Thank you so much for responding. That’s good to know. I guess I just thought that when a conviction was documented, that you were banned at a Federal level. So when attempting to purchase a firearm at a store, the background check would be run through the FBI’s database. I wasn’t sure how that would work.

 

Pardon Board:

If the Board grants your firearm rights back and you try to purchase a firearm, you will need to provide them with a copy of the order from the Parole Board. We do not have the ability to go in and add the restoration to your out-of-state criminal history like we can with a Georgia criminal history where it can be seen by anyone pulling your criminal history. There's really no "federal level", but like I said, you cannot possess that firearm outside GA.

 

 

I really don't mind paying for help from an Attorney. I don't even mind it being somewhat expensive. But "expensive" is a relative term. $3-$5,000 grand with a good chance of success, no problem! $10-$20,000 with low probability? I'll probably just start carrying a big knife.

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  • 4 weeks later...

You do not have to live in IL to seek rights restored, from the ISP FAQ:

 

 

I was convicted of a felony in Illinois but no longer live in Illinois . . . what can I do to appeal this prohibitor?

You may file an appeal in Illinois. Please contact the Office of Firearms Safety at ISP.FOID.Appeals@illinois.gov to request additional information.

 

Please let us know what you find out - it would be very helpful.

 

added: If you end up having to file a petition in circuit court, be sure to file a petition for a pardon from the governor first.

 

Whether or not the original poster called me, I cannot say as I do not know who it is. Nor am I allowed to discuss any conversation, if it did occur. However, I give the same advice as mentioned above. It is a result of in depth discussions over the years with Rob Deters and Alan Downen, two other IL attorneys that do a lot of FOID work. There is NO procedure in IL for this situation and would have to be made up as we go. Not wanting a FOID but wanting to restore firearm civil rights = these are the same thing. You must use the FOID statute in order to restore your firearm civil rights.

As to the citation to the ISP website and their statement that you should just contact them: I have never gotten a straight answer on that from ISP. Recently, I asked the Chief Legal Counsel for the entire Department about this statement on the website, and have no answer yet. I suspect 1 of 2 things will happen: I'll be told exactly how to ask ISP to handle these types of requests, or that language will be stripped off their website.

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  • 2 months later...

I finally got a response from the Illinois State Police. This is the response I received. I'm still not sure what to do from here since I live out of state and can't imagine that I could appeal in the county where I currently reside.

 

------------------------------------------------------------------------------

The Illinois State Police Office of Firearms Safety has received documents for the appeal of your denied FOID card. The Office of Firearms Safety CAN NOT approve your FOID card without the proper relief document from the Circuit Court. If you would like to appeal this decision you may petition the circuit court, in writing, in the county of your residence for a hearing.

 

Please contact the Circuit Clerks office in the county where you reside for direction on how to go about this process because every county conducts the hearing process in their own way. Please explain to the Circuit Clerks office you have a Felony firearms prohibitor and you would like to schedule a hearing to Petition for Firearms. Also, you may provide them with the following case numbers: Cook County Circuit Court 93CRxxxxxxx – burglary conviction.

 

Illinois State Police

Office of Firearm Safety

Call Center 217-782-7980

Office 217-524-1669

Please visit our website for common questions and documents for appeals-

https://isp.illinois.gov/FirearmsSafety

 

------------------------------------------------------------------------------

 

Any help you can provide would be greatly appreciated.

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I finally got a response from the Illinois State Police. This is the response I received. I'm still not sure what to do from here since I live out of state and can't imagine that I could appeal in the county where I currently reside.

 

------------------------------------------------------------------------------

The Illinois State Police Office of Firearms Safety has received documents for the appeal of your denied FOID card. The Office of Firearms Safety CAN NOT approve your FOID card without the proper relief document from the Circuit Court. If you would like to appeal this decision you may petition the circuit court, in writing, in the county of your residence for a hearing.

 

Please contact the Circuit Clerks office in the county where you reside for direction on how to go about this process because every county conducts the hearing process in their own way. Please explain to the Circuit Clerks office you have a Felony firearms prohibitor and you would like to schedule a hearing to Petition for Firearms. Also, you may provide them with the following case numbers: Cook County Circuit Court 93CRxxxxxxx – burglary conviction.

 

Illinois State Police

Office of Firearm Safety

Call Center 217-782-7980

Office 217-524-1669

Please visit our website for common questions and documents for appeals-

https://isp.illinois.gov/FirearmsSafety

 

------------------------------------------------------------------------------

 

Any help you can provide would be greatly appreciated.

Although burglary is a forcible felony and would normally require a formal appeal to the circuit court in the Illinois county in which you live, if you are out-of-state I have the latest news from the (now former) Chief Legal Counsel for ISP that they will accept an informal appeal and if they grant relief, the prohibitor will be removed from the nonresident's background, but a FOID card will not be issued (unless the nonresident moves back to Illinois). Hope this helps.

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I finally got a response from the Illinois State Police. This is the response I received. I'm still not sure what to do from here since I live out of state and can't imagine that I could appeal in the county where I currently reside.

 

------------------------------------------------------------------------------

The Illinois State Police Office of Firearms Safety has received documents for the appeal of your denied FOID card. The Office of Firearms Safety CAN NOT approve your FOID card without the proper relief document from the Circuit Court. If you would like to appeal this decision you may petition the circuit court, in writing, in the county of your residence for a hearing.

 

Please contact the Circuit Clerks office in the county where you reside for direction on how to go about this process because every county conducts the hearing process in their own way. Please explain to the Circuit Clerks office you have a Felony firearms prohibitor and you would like to schedule a hearing to Petition for Firearms. Also, you may provide them with the following case numbers: Cook County Circuit Court 93CRxxxxxxx – burglary conviction.

 

Illinois State Police

Office of Firearm Safety

Call Center 217-782-7980

Office 217-524-1669

Please visit our website for common questions and documents for appeals-

https://isp.illinois.gov/FirearmsSafety

 

------------------------------------------------------------------------------

 

Any help you can provide would be greatly appreciated.

Although burglary is a forcible felony and would normally require a formal appeal to the circuit court in the Illinois county in which you live, if you are out-of-state I have the latest news from the (now former) Chief Legal Counsel for ISP that they will accept an informal appeal and if they grant relief, the prohibitor will be removed from the nonresident's background, but a FOID card will not be issued (unless the nonresident moves back to Illinois). Hope this helps.

 

 

That is actually very encouraging Mr. Nickl.

 

My concern is this part of thier message "The Illinois State Police Office of Firearms Safety has received documents for the appeal of your denied FOID card. The Office of Firearms Safety CAN NOT approve your FOID card without the proper relief document from the Circuit Court." That makes me think they already believe that I have begun an appeal, when I actually haven't done anything but send them an email requesting info. And they are saying that I must obtain relief from the Circuit court.

 

I wouldn't know how to go about initiating an informal appeal, but I will certainly look in to it. If anybody can nudge me in the right direction, I would greatly appreciate it.

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I finally got a response from the Illinois State Police. This is the response I received. I'm still not sure what to do from here since I live out of state and can't imagine that I could appeal in the county where I currently reside.

 

------------------------------------------------------------------------------

The Illinois State Police Office of Firearms Safety has received documents for the appeal of your denied FOID card. The Office of Firearms Safety CAN NOT approve your FOID card without the proper relief document from the Circuit Court. If you would like to appeal this decision you may petition the circuit court, in writing, in the county of your residence for a hearing.

 

Please contact the Circuit Clerks office in the county where you reside for direction on how to go about this process because every county conducts the hearing process in their own way. Please explain to the Circuit Clerks office you have a Felony firearms prohibitor and you would like to schedule a hearing to Petition for Firearms. Also, you may provide them with the following case numbers: Cook County Circuit Court 93CRxxxxxxx – burglary conviction.

 

Illinois State Police

Office of Firearm Safety

Call Center 217-782-7980

Office 217-524-1669

Please visit our website for common questions and documents for appeals-

https://isp.illinois.gov/FirearmsSafety

 

------------------------------------------------------------------------------

 

Any help you can provide would be greatly appreciated.

Although burglary is a forcible felony and would normally require a formal appeal to the circuit court in the Illinois county in which you live, if you are out-of-state I have the latest news from the (now former) Chief Legal Counsel for ISP that they will accept an informal appeal and if they grant relief, the prohibitor will be removed from the nonresident's background, but a FOID card will not be issued (unless the nonresident moves back to Illinois). Hope this helps.

 

 

That is actually very encouraging Mr. Nickl.

 

My concern is this part of thier message "The Illinois State Police Office of Firearms Safety has received documents for the appeal of your denied FOID card. The Office of Firearms Safety CAN NOT approve your FOID card without the proper relief document from the Circuit Court." That makes me think they already believe that I have begun an appeal, when I actually haven't done anything but send them an email requesting info. And they are saying that I must obtain relief from the Circuit court.

 

I wouldn't know how to go about initiating an informal appeal, but I will certainly look in to it. If anybody can nudge me in the right direction, I would greatly appreciate it.

 

As sometimes happens, there is a likely disconnect between the information in the letter that you receive and the actual procedure. Here, I would reach out to Springfield and reorient them to the fact that you are a nonresident seeking relief from a prohibitor, NOT that you are seeking a FOID card. Then I would file an informal appeal or at least the best approximation of one because there is no "checklist" for this situation.

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This was a lot to skim through, especially on a cell phone. So bare with me if the answer to my question is already stated above. But....

 

What about what about record expungements and sealing? Whwtever the crime leading to the denial/Revocation was is eligible to to be expunged/sealed unless it was animal cruelty, sex crimes, DUI, or domestic violence. Not living in Illinois will void the foid and ISP. And an expunged record shouldn't be flagged in the NICS, right? Not sure about sealed records...

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This was a lot to skim through, especially on a cell phone. So bare with me if the answer to my question is already stated above. But....

 

What about what about record expungements and sealing? Whwtever the crime leading to the denial/Revocation was is eligible to to be expunged/sealed unless it was animal cruelty, sex crimes, DUI, or domestic violence. Not living in Illinois will void the foid and ISP. And an expunged record shouldn't be flagged in the NICS, right? Not sure about sealed records...

 

Your comment really prompted me to think about the situation a little more and may end up being very helpful.

 

First, my convictions were not eligible for expungement. I had two convictions one in Will County which was a class 1 felony, and one in Cook County which was a class 3 felony.

 

Before I moved, I had my felony conviction in Will County sealed. I was going to take care of my Cook County conviction at about the same time, but I could not get a court date before my move date. I planned on following up with it later and seeing how much could be accomplished by mail, and then traveling back to Illinois whenever it was necessary. I never got around to that.

 

Your comment made me realize a few things. When I started the process of trying to get my rights restore in Georgia, I had to get an FBI background check done. I got fingerprinted at the USPS and shortly after received my background report. I just noticed after reading your message, that my sealed conviction in Will County is not listed on that background check! Also, when ISP emailed me back and referenced the conviction in which I should petition the courts for, they did not mention my Will County Conviction, only the Cook County that has not yet been sealed. Now from my understanding, a sealed conviction should still be visible by law enforcement. So I'm very curious as to why it's not on my background report and why ISP did not mention it as I did not provide them withy my case numbers, so they certainly had to run a background on me to tell me my Cook County Case number.

 

I am going go go ahead and proceed with having my Cook County case sealed. I think I can submit the paperwork via mail, and then fly in for the court date once it's provided. Then I will try to find out what the next steps for me to get the prohibiter removed from my background will be.

 

Maybe Mr. Nickl can provide some expertise on this? And thank you "Bigdudez25" for your comment!

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I just found this information and I think it will be very helpful to anyone who might be going through the same thing that I am. An out of state resident trying to remove the prohibitor from my record.

 

This website:

https://casetext.com/regulation/illinois-administrative-code/title-20-corrections-criminal-justice-and-law-enforcement/part-1230-firearm-owners-identification-card-act/section-123070-appeal

 

Especially this section:

Section d) 2. "Out-of-state Residents: If a petitioner wishes to appeal the denial or revocation based on his or her status as an out-of-state resident, the petitioner must provide to the Department documentation requested by the Department, which shall include a copy of a valid driver's license or identification card, proof of residency, and a signed, dated and notarized statement from the petitioner detailing any and all facts and circumstances regarding the status of his or her residency and the need for a FOID Card. The petitioner must also provide any other documentation requested by the Department relating to the determination for granting relief."

 

​As well as this pdf from ISP's website which I did not see prior to submitting my appeal. I'm hoping I can just email them the additional documentation that is being requested (Notarized reference letters and details surrounding circumstances of conviction, etc).

https://isp.illinois.gov/StaticFiles/docs/FirearmsSafety/Checklists/Final%20Checklists/Felony%20Prohibitor%20Requirements%20Checklist.pdf

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Those are some of the administrative rules found in the Illinois Administrative Code. Every state agency is mandated to create rules for the administration of whatever statute gives them power. It's where the details are found that are too messy, numerous, or tedious for inclusion in the statute. The pdf you link to is the checklist for appeal of normal felonies that don't trigger the requirement for formal appeal. Out of state applicants need to do an informal appeal as best they can in order to restore their firearm rights without obtaining the FOID.

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Those are some of the administrative rules found in the Illinois Administrative Code. Every state agency is mandated to create rules for the administration of whatever statute gives them power. It's where the details are found that are too messy, numerous, or tedious for inclusion in the statute. The pdf you link to is the checklist for appeal of normal felonies that don't trigger the requirement for formal appeal. Out of state applicants need to do an informal appeal as best they can in order to restore their firearm rights without obtaining the FOID.

Thank you Mr. Nickl. I submitted my appeal before I saw that checklist, so unfortunately I didn't include the letters of reference or the conviction details. I will get those together and attempt to email them to ISP to see if they can attach them to my appeal form.

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Thank you Mr. Nickl. I submitted my appeal before I saw that checklist, so unfortunately I didn't include the letters of reference or the conviction details. I will get those together and attempt to email them to ISP to see if they can attach them to my appeal form.

 

 

 

 

 

You should be able to fax them to this number and request they be added to your appeal packet:

 

FOID and CCL Appeal FAX number 217-782-9139

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  • 2 weeks later...
  • 7 months later...

Thank you, Molly. It turns out that they were just confirming a court order to have a conviction sealed. Great news, but it looks like the wait continues in regards to the appeal.

 

On another note...

My Firearm Rights Restoration Application is moving forward in Georgia. An investigator for the Pardons and Parole board here came to my home and interviewed me the Friday before last. After the interview she told me that she would report back to the board and that I would hear something in about 3 months. She mentioned that if I was granted my rights, I would receive a document that would state that I have been granted my rights in Georgia. She also said that the courts in Illinois would be contacted and that they would be able to leave some sort of remarks next to my convictions stating that they have pardoned them here in GA. And that these remarks along with the document is what would allow me to be able to complete a firearm purchase and allow me to possess in this state. I will keep you posted on this progress as well.

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