§ 29-2264 — Probation; completion; conviction may be set aside; conditions; retroactive effect

Nebraska § 29-2264

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1) Whenever any person is placed on probation by a court and satisfactorily completes the conditions of his or her probation for the entire period or is discharged from probation prior to the termination of the period of probation, the sentencing court shall issue an order releasing the offender from probation. Such order in all felony cases shall provide notice that the person's voting rights are restored upon completion of probation. The order shall include information on restoring other civil rights through the pardon process, including application to and hearing by the Board of Pardons.
(2) Whenever any person is convicted of an offense and is placed on probation by the court, is sentenced to a fine only, or is sentenced to community service, he or she may, after satisfactory fulfillment of the conditions of probation for the entire period or after discharge from probation prior to the termination of the period of probation and after payment of any fine and completion of any community service, petition the sentencing court to set aside the conviction.
(3)(a) Except as provided in subdivision (3)(b) of this section, whenever any person is convicted of an offense and is sentenced other than as provided in subsection (2) of this section, but is not sentenced to a term of imprisonment of more than one year, such person may, after completion of his or her sentence, petition the sentencing court to set aside the conviction.
(b) A petition under subdivision (3)(a) of this section shall be denied if filed:
(i) By any person with a criminal charge pending in any court in the United States or in any other country;
(ii) During any period in which the person is required to register under the Sex Offender Registration Act;
(iii) For any misdemeanor or felony motor vehicle offense under section 28-306 or the Nebraska Rules of the Road; or
(iv) Within two years after a denial of a petition to set aside a conviction under this subsection.
(4) In determining whether to set aside the conviction, the court shall consider:
(a) The behavior of the offender after sentencing;
(b) The likelihood that the offender will not engage in further criminal activity; and
(c) Any other information the court considers relevant.
(5) The court may grant the offender's petition and issue an order setting aside the conviction when in the opinion of the court the order will be in the best interest of the offender and consistent with the public welfare. The order shall:
(a) Nullify the conviction;
(b) Remove all civil disabilities and disqualifications imposed as a result of the conviction; and
(c) Notify the offender that he or she should consult with an attorney regarding the effect of the order, if any, on the offender's ability to possess a firearm under state or federal law.
(6) The setting aside of a conviction in accordance with the Nebraska Probation Administration Act shall not:
(a) Require the reinstatement of any office, employment, or position which was previously held and lost or forfeited as a result of the conviction;
(b) Preclude proof of a plea of guilty whenever such plea is relevant to the determination of an issue involving the rights or liabilities of someone other than the offender;
(c) Preclude proof of the conviction as evidence of the commission of the offense whenever the fact of its commission is relevant for the purpose of impeaching the offender as a witness, except that the order setting aside the conviction may be introduced in evidence;
(d) Preclude use of the conviction for the purpose of determining sentence on any subsequent conviction of a criminal offense;
(e) Preclude the proof of the conviction as evidence of the commission of the offense in the event an offender is charged with a subsequent offense and the penalty provided by law is increased if the prior conviction is proved;
(f) Preclude the proof of the conviction to determine whether an offender is eligible to have a subsequent conviction set aside in accordance with the Nebraska Probation Administration Act;
(g) Preclude use of the conviction as evidence of commission of the offense for purposes of determining whether an application filed or a license issued under sections 71-1901 to 71-1906.01 , the Child Care Licensing Act, or the Children's Residential Facilities and Placing Licensure Act or a certificate issued under sections 79-806 to 79-815 should be denied, suspended, or revoked;
(h) Preclude use of the conviction as evidence of serious misconduct or final conviction of or pleading guilty or nolo contendere to a felony or misdemeanor for purposes of determining whether an application filed or a certificate issued under sections 81-1401 to 81-1414.19 should be denied, suspended, or revoked;
(i) Preclude proof of the conviction as evidence whenever the fact of the conviction is relevant to a determination of the registration period under section 29-4005 ;
(j) Relieve a person who is convicted of an offense for which registration is required under the Sex Offender Registration Act of the duty to register and to comply with the terms of the act;
(k) Preclude use of the conviction for purposes of section 28-1206 ;
(l) Affect the right of a victim of a crime to prosecute or defend a civil action;
(m) Affect the assessment or accumulation of points under section 60-4,182 ; or
(n) Affect eligibility for, or obligations relating to, a commercial driver's license.
(7) For purposes of this section, offense means any violation of the criminal laws of this state or any political subdivision of this state including, but not limited to, any felony, misdemeanor, infraction, traffic infraction, violation of a city or village ordinance, or violation of a county resolution.
(8) Except as otherwise provided for the notice in subsection (1) of this section, changes made to this section by Laws 2005, LB 713, shall be retroactive in application and shall apply to all persons, otherwise eligible in accordance with the provisions of this section, whether convicted prior to, on, or subsequent to September 4, 2005.
(9) The changes made to this section by Laws 2018, LB146, and Laws 2020, LB881, shall apply to all persons otherwise eligible under this section, without regard to the date of the conviction sought to be set aside.

Legislative History

Source: Laws 1971, LB 680, § 19; Laws 1993, LB 564, § 1; Laws 1994, LB 677, § 1; Laws 1995, LB 401, § 1; Laws 1997, LB 310, § 1; Laws 1998, Spec. Sess., LB 1, § 3; Laws 2002, LB 1054, § 6; Laws 2003, LB 685, § 2; Laws 2004, LB 1005, § 3; Laws 2005, LB 53, § 3; Laws 2005, LB 713, § 3; Laws 2009, LB285, § 2; Laws 2012, LB817, § 2; Laws 2013, LB265, § 30; Laws 2018, LB146, § 1; Laws 2020, LB881, § 24; Laws 2021, LB51, § 3; Laws 2024, LB20, § 3. Cross References: Child Care Licensing Act, see section 71-1908. Children's Residential Facilities and Placing Licensure Act, see section 71-1924. Nebraska Rules of the Road, see section 60-601. Sex Offender Registration Act, see section 29-4001. Annotations: 1. Application 2. Probation and civil disabilities 3. Convictions, set aside 4. Miscellaneous 1. Application Probationers are not, by default, still subject to the obligations imposed by the original probation order after the term has expired up until the court issues an order of release. State v. Simons, 315 Neb. 415, 996 N.W.2d 607 (2023). Being placed on probation is not a prerequisite to the application of this section. State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005). Subsection (2) of this section applies after (1) the satisfactory fulfillment of the conditions of probation for the entire period, (2) the discharge from probation prior to termination of the period of probation, or (3) after the payment of any fine if the defendant has been sentenced to a fine only. State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005). 2. Probation and civil disabilities While the Legislature is free to expand the statutory list of civil disabilities which are not restored by a judgment setting aside and nullifying a conviction pursuant to this section, such amendments cannot impair rights vested by judgments entered under prior versions of this section. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006). The removal of civil disabilities operates prospectively from the date of the order setting aside a defendant's conviction. McCray v. Nebraska State Patrol, 270 Neb. 225, 701 N.W.2d 349 (2005). The provisions for discharge from probation and removal of civil disabilities and disqualifications do not apply to a jail sentence already served. State v. Adamson, 194 Neb. 592, 233 N.W.2d 925 (1975). The Nebraska court's expunction of the defendant's conviction for possession of marijuana with intent to distribute, after defendant had served approximately half of probation, did not expunge the record for purposes of federal statute relating to receipt of firearms in interstate commerce by persons previously convicted of a crime punishable by imprisonment exceeding one year. United States v. Germaine, 720 F.2d 998 (8th Cir. 1983). 3. Convictions, set aside The decision of whether to set aside a conviction pursuant to this section is discretionary, and in exercising its discretion, the court must consider the factors specified therein. State v. Brunsen, 311 Neb. 368, 972 N.W.2d 405 (2022). The statutory mandate of this section that the court consider "[a]ny other information the court considers relevant" does not empower the court to rest its decision on irrelevant or erroneous facts or misperceptions of the law. State v. Brunsen, 311 Neb. 368, 972 N.W.2d 405 (2022). Confinement in the county jail as a condition of probation does not bar a person from seeking to have a conviction set aside pursuant to subsection (2) of this section. State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014). Subsection (2) of this section authorizes any person convicted of a misdemeanor or a felony and placed on probation or sentenced to a fine only to petition the sentencing court to set aside the conviction after satisfactory fulfillment of the conditions of probation for the entire period, or after early discharge, and payment of any fine. State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014). Amendments to this section that allow a set-aside conviction to be used for purposes of determining risk under the Sex Offender Registration Act do not apply retroactively to a sex offender whose prior convictions for non-sex-offenses were set aside prior to the amendments, and thus, the offender's set-aside convictions could not be used for risk assessment under the act. Orders setting aside the offender's convictions vested him with the right to have the set-aside convictions used only for those purposes listed in this section at the time the orders were entered. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006). An order setting aside a conviction is a final judgment which nullifies the conviction and removes all civil disabilities which were not exempted from restoration by this section as it existed on the date of the order. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006). The fact that use of a conviction that has been set aside under this section is logically consistent with other uses enumerated in this section does not permit a court to read such language into this section. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006). This section indicates that it is the province of the sentencing court to set aside a conviction and gives guidelines for determination of whether to set aside a conviction. State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005). When the Legislature enacted the 1993 amendment to subsection (2) of this section, it intended to include those who had been fined only within the class of those who could have their convictions set aside. State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005). 4. Miscellaneous This section is constitutional. It does not violate the separation of powers clause of the Nebraska Constitution, article II, section 1, as an infringement of the power expressly delegated to the Board of Pardons. State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002). Where defendant admitted a felony conviction, his introduction of order terminating probation was permissible and did not open matter to further development. State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976).