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Petition to Set Aside a Criminal Conviction

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These instructions and forms are a product of the Nebraska Supreme Court’s Implementation Committee on Pro Se Litigation and are provided as a public service to people who wish to handle their own court case(s).

THE SUPREME COURT DOES NOT GUARANTEE THAT THESE INSTRUCTIONS AND FORMS WILL BE APPROPRIATE IN EVERY CASE.   ANY QUESTIONS YOU MAY HAVE REGARDING THE USE OF THE INSTRUCTIONS AND FORMS SHOULD BE DIRECTED TO A LAWYER.

Although these instructions and forms were developed to assist people who are handling their own cases, the Supreme Court’s Implementation Committee on Pro Se Litigation urges anyone thinking of handling their own case to consider getting a lawyer to help with their case.

Many courts have specific local rules that may apply in your case.  Check with the Clerk of the District Court or County Court in your county.  If you fail to follow the local rules, it may affect your ability to obtain the desired outcome from your court case.

Introduction

An adult’s criminal conviction cannot be “erased.”  It can be “pardoned” or “set-aside,” but it WILL NOT be erased.  Once there is a conviction on your record, it always will be on your record.

A pardon is a formal forgiveness granted by the Board of Pardons. See their site for more information and an application.

A set-aside is an order by the judge who sentenced you in a criminal case which voids the conviction.   As part of the decision to set-aside a criminal conviction, a judge must believe that it is in your best interest to do so and that setting aside the conviction is “consistent with the public welfare.”   The decision is “discretionary,” which means it is totally up to the judge.   While the set-aside does not erase a criminal record, the order setting aside the conviction is added to the criminal record.  Since a criminal conviction affects your ability to get a job, a potential employer doing a criminal background check will see both the  conviction and the order which “sets aside” that conviction.

Facts About Filing for a Motion to Set Aside in Nebraska

Both felony and misdemeanor criminal convictions can be set aside.  You are eligible to have your conviction set aside if you were placed on probation OR your sentence was a fine only, AND you successfully completed the terms of your probation or paid the fine.

Before setting aside a criminal conviction a judge will consider these factors:

  • Whether you had any criminal convictions since the conviction you want the judge to set aside and the types of convictions.
  • Whether it appears likely you will remain law-abiding in the future.
  • The length of time between your last criminal offense and your request for a set-aside.

Getting a Conviction Set-Aside

Background Preparation

You will need specific information regarding the conviction you wish to have set aside.  You will need to gather the following information:

  • Your name and date of birth
  • The date of the offense
  • The actual criminal charge
  • The outcome of the criminal charge (guilty, not guilty)
  • Your sentence (probation, fine, jail)
  • Whether you completed your sentence

If you do not have copies of your court record, you can get information regarding your criminal history by:

  • Obtaining a copy of your criminal history through the Nebraska State Patrol. (There is a small charge to get your record.)
  • Doing a one-time court case search of Nebraska Court records. (There is a small charge to get your record, but it may not be a complete record.)
  • Going to the courthouse(s) where you may have convictions and using the public access terminal to get information on your record. There will be a charge for copies provided to you by the court.

Sometimes there is only one conviction that is causing you problems.  You can get that conviction set aside without having to get all of your convictions set aside.  For example, you may have convictions for improper tags on your vehicle, improper restraint of animals, driving while your license is suspended and shoplifting.

If you are having trouble getting a job, the conviction that is causing you trouble is most likely the shoplifting charge.  A potential employer will not be as worried about the fact that your license plate tags were expired as they will a shoplifting charge.  You can get the shoplifting charge set aside even if you do not ask to get the other convictions set aside.

You need to file a separate motion for each conviction you wish to have set aside.

Forms and Filing

Forms

Filing the Forms

  • Take or mail the original petition to the Clerk of Court where the original conviction was filed.
  • Keep one copy for yourself.
  • Serve the prosecutor by giving her/him a copy.

Your case may have been filed by a City Prosecutor OR a County Attorney. The prosecutor will be stated on your original complaint, or on the criminal history or court case search. You can “serve” the prosecutor by sending him/her a copy of the petition in the mail or by dropping a copy off at his/her office. If the prosecutor has an office in the courthouse, you may want to drop off the copy for the prosecutor at that office on the same day you file your petition.

You have now “served” and filed your petition.

The clerk’s office will schedule your petition for hearing. When it is scheduled, the clerk will mail you a copy of a notice stating the hearing date and time.

Court Hearing on Petition to Set Aside a Conviction

YOU MUST ATTEND THE HEARING IN ORDER TO GET YOUR CONVICTION SET ASIDE.

  • Appear at the hearing early. BE ON TIME.
  • It is likely that your case will be set on a court “call” calendar at the same time and in the same courtroom as many other cases. There may not be a particular order in which cases are called. You may spend an entire morning or afternoon in court waiting for your case to be called. Be prepared to wait.
  • When the judge calls your name, approach the bench. The “bench” is where the judge sits. The prosecutor probably also will be at the bench. You usually can tell who a prosecutor is because that attorney will be at the bench for every case called by the judge.
  • When you approach the bench, be respectful. Do not argue with the judge.
  • At the end of your presentation, the judge may or may not have questions for you.
  • This is not a hearing to prove your innocence at the original trial. It is just a hearing to set aside a conviction. You are not asking for a re-trial. This is not your chance to argue about the original conviction or charges. This is your chance to ask the court to “set aside” a conviction because it is interfering with your ability to work, get housing, or go to school.
  • The judge will ask the prosecutor for his/her opinion.
    • The prosecutor may not have any objection. If the prosecutor does not want the court to set aside your conviction, he or she will object and will tell the judge why. DO NOT INTERRUPT THE PROSECUTOR WHILE HE OR SHE IS TALKING.
    • If the prosecutor does have an objection, the judge probably will give you a chance to respond to the prosecutor.
    • If the judge does not give you that chance, wait until the prosecutor is finished speaking and politely ask the judge if you can respond to what the prosecutor said.
    • If the judge says “no,” the judge means “no.”

The prosecutor and judge have access to your criminal record. This record will contain all the criminal charges and convictions you have ever had. For example, traffic tickets, driving without insurance, disturbing the peace. If all these events happened before the conviction you are asking the court to set aside, the court may not be concerned about those events.

The criminal record will influence the judge. If you have had other charges and convictions since the conviction for the offense you want set aside, the court will be concerned and will take those events in to account.

At the end of a hearing, the judge will enter an order. In most counties a copy of the order will be provided to you after the hearing – often by mail. Check with your Clerk of Court to see how you will receive your copy of the order. Some courts may require you to provide an order for the judge’s signature: Court Order to Set Aside a Criminal Conviction (CC 6:11(2)).

It will take a few days after the hearing for computers to be updated and the note “set aside” to appear in the JUSTICE record and your criminal history.

An order will contain the language that the conviction is “nullified,” meaning it was cancelled out. You can show this order to potential employers to prove that your conviction was nullified.

 

This page was last modified on Tuesday, May 14, 2013