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Setting Aside A Criminal Conviction

Updated: Dec 15, 2020

Consequences of a Criminal Conviction

A criminal conviction can carry serious consequences that last far beyond the punishment passed down by the court itself. The vast majority of employers conduct background searches for prospective employees, and with increasing access to information over the internet, it has become faster, easier and less costly than ever for employers to access a person’s criminal history. The negative effects of felony convictions are well known, but even misdemeanor convictions can seriously impact a person’s job prospects, especially in fields that require a professional license or fields that involve some element of trust or authority.

These lasting consequences of a conviction are something that should be taken seriously when deciding how to handle pending criminal charges. However, once a guilty verdict is entered and the opportunity for appeal has passed, the conviction is final. There is generally no way to erase (or “expunge”) a criminal conviction in the state of Nebraska, meaning that any conviction will be a part of your criminal record indefinitely. However, a set aside will help to reduce the impact of a conviction, and may eliminate the stigma altogether.

Consequences of Having a Conviction Set Aside

Exactly what an employer sees when they run a background check varies based on the depth of the search, and what methods are used. An employer may see only the final result of a conviction, they may see the detailed facts and history of the case, or anything in between. In any case, it is almost certain that an employer will see only one side of the story – the prosecutor’s side of the story. The cold record is not likely to contain information as to why you acted the way you did, the circumstances surrounding the conviction, or your behavior since. A set aside essentially allows a defendant to have a small portion of their own story appended to the court record.

Nebraska Revised Statue 29-2264 authorizes the set aside process for certain criminal convictions and, when granted, promises to do two things: “(a) Nullify the conviction; and (b) Remove all civil disabilities and disqualifications imposed as a result of the conviction.” (link). In practice, the effect is less dramatic than the language may suggest. The reality is that the conviction is still attached to your name and record, and private individuals and entities are still free to make decisions based on your conviction. Having a conviction set aside does not mean that the conviction never happened, or that all traces of the conviction are erased.

What a set aside does accomplish, is that it amends the court record so that instead of simply showing a conviction, it shows that the conviction has been set aside. This amendment should be apparent to anyone accessing current court records, and acts as a sort of endorsement by the court that the offender has taken responsibility for the conviction and has demonstrated a history of rehabilitation. This should, at a minimum, show any potential employer that the conviction doesn’t tell the whole story and certainly does not define you as a person. The amended court record shows any inquirer that you have grown as a person and have taken a proactive role in correcting your past. Seeking a set aside can be a great investment in your future, and can help to remove significant obstacles to better or higher paying work.

Eligibility for Having a Conviction Set Aside

Not all charges or individuals are eligible to have their conviction set aside. An experienced attorney will be in the best position to advise you on the eligibility of your specific case. However, the following criteria must generally be met in order to have a conviction successfully set aside.

  1. Only convictions can be set aside. Defendants who had their charges dismissed, were acquitted, or chose to participate in the Diversion program were not convicted of a crime and therefore cannot ask the court to set it aside.

  2. The conviction must have occurred in state court. Federal charges are not within the authority of the government of Nebraska and therefore must generally be dealt with through a presidential pardon.

  3. The defendant must have been sentenced to probation and/or a fine only. Defendants who were incarcerated as a result of their conviction are generally not eligible to have their convictions set aside.

  4. Any probation and/or fines must have been paid and completed to the full satisfaction of the court. Unsuccessful discharge from probation or failure to fulfill all the requirements imposed by the court generally makes the conviction ineligible for being set aside.

  5. The defendant must demonstrate good behavior to the court. Depending on the nature and severity of the conviction, this may be satisfied by simply not having subsequent convictions, or it may require affirmative proof of rehabilitation such as community service, participation in treatment, or steady employment.

A defendant who meets all these factors may have a good chance to have their conviction set aside. An experienced attorney can often give an accurate prediction of how likely the court is to grant a set aside in your particular case, and whether it will be worth pursuing. At the end of the day, the decision of whether or not to set aside a conviction rests in the discretion of the judge, but an experienced criminal law attorney can help you navigate the process in a way that maximizes your chance of success.


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