What is a Set-Aside?

Under Nebraska Revised Statute § 29-2264, a criminal conviction may be “set-aside” by the sentencing court (the same judge that sentenced the petitioner). So, what does that mean?

A set-aside is an order issued by the sentencing judge that signifies to the public the petitioner has successfully completed his/her sentence and has been rehabilitated. This order is added to the petitioner’s record noting that the conviction has been set-aside.

What a Set-Aside Does and Does Not Do

There are many barriers that come with a criminal conviction, including the stigma of having a criminal record. A set-aside order “removes all civil disabilities and disqualifications imposed as a result of the conviction.” A set-aside does NOT erase your criminal conviction, but rather annotates that it has been set aside.

Impact on Employment

Criminal convictions can have lasting impacts long after the sentence has been served. For some, these convictions can prevent them from obtaining necessary licenses to further their careers.

The effects of a set-aside will vary depending on certain licensing boards and/or your prospective employer. Your conviction will still appear on background checks as part of your criminal record, but the record will show that your conviction has been set aside. This can be a major benefit in many situations as it provides peace of mind that an individual has “cleaned up” their record.

Although the impact varies widely, obtaining a set-aside may assist individuals in obtaining things such as a liquor license or being granted professional licenses previously denied.

Impact on Firearms Rights

A set-aside of a felony conviction will not restore firearms rights; that can only be done by the Board of Pardons. Different counties around Nebraska are handling set-asides and firearms rights differently, so the impact on Nebraskans’ rights to possess firearms for misdemeanor crimes of domestic violence is still uncertain.

The Nebraska State Patrol and some counties across the state have taken the position that a set-aside does NOT restore firearms rights in these circumstances. Other counties, however, have taken the position that a set-aside DOES restore firearm rights based on the reading of the Statute.

As the statute reads, a set-aside nullifies the conviction and “removes all civil disabilities and disqualifications imposed as a result of the conviction.” Even if you live in a county that does not view set-asides as restoring firearms rights, we believe this issue is ripe for litigation based on State and Federal law. If you believe this issue may apply to you, contact Liberty Law Group for a free consult to investigate further.

Eligibility

In order to qualify for a set-aside of a criminal conviction, a petitioner must have satisfactorily completed one of the following sentences:

– A sentence of probation;

– Fine only once all fines and costs are paid in full;

– Community service; or

– A term of imprisonment of one year or less.

To grant the petition, the original sentencing court must find that setting aside the conviction will be in the best interest of the offender and consistent with the public welfare. The court may consider:

– The behavior of the applicant after sentencing;

– The likelihood that the offender will not engage in further criminal activity; and

– Any other information the court considers relevant.

Disqualifiers

Courts must deny a set-aside petition when filed by anyone who was sentenced to a term of incarceration and currently has pending charges, is required to register under the Sex Offender Registration Act, or if the petitioner has been denied a set-aside in the previous two years. Anyone who served a term of incarceration for a conviction of motor vehicle homicide is ineligible for a set-aside.

Process

To begin the process of obtaining a set-aside of your criminal conviction, you should contact an attorney. Your attorney will help you to identify and collect all necessary documents, complete the set-aside petition with relevant information for the court’s consideration, and file the petition on your behalf.

Timing

The law does not set a timeframe for eligibility, other than the requirement that your sentence be satisfactorily completed. That said, courts like to see that the individual applying for a set-aside has demonstrated a change in behavior in such a way that there is little risk of future criminal activity. The sweet spot, especially for misdemeanors, seems to be about 2-3 years after completion of your sentence.

Contact an Attorney Today

At Liberty Law Group, our attorneys have extensive experience within the criminal defense field, including setting aside convictions. Most set-asides can be completed start-to-finish for $1,000. Schedule a free consult today by giving us a call at (402) 865-0501 or by filling out our contact form online.