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Trouble in North Platte
AAllen:
The statute on setting aside a conviction has changed 11 times since he had his conviction set aside. My guess is that when this was set aside the judge had the power to restore his civil rights and did. Currently the court does not hold that power but since his case was nullified under the old law his restoration should hold.
Unfortunately when these things change and some time goes by it can become a legal mess for those involved. Most of the time there is no issue but when there is it takes some time for the attorneys to sort it out. Once all the research gets done my guess is that this will get dropped, but that is my guess and I am not a Lawyer.
Ruffled:
--- Quote from: AAllen on March 04, 2012, 12:29:47 PM ---The statute on setting aside a conviction has changed 11 times since he had his conviction set aside. My guess is that when this was set aside the judge had the power to restore his civil rights and did. Currently the court does not hold that power but since his case was nullified under the old law his restoration should hold.
Unfortunately when these things change and some time goes by it can become a legal mess for those involved. Most of the time there is no issue but when there is it takes some time for the attorneys to sort it out. Once all the research gets done my guess is that this will get dropped, but that is my guess and I am not a Lawyer.
--- End quote ---
I'm aware of the numerous changes. They're listed in the current law. But the fact remains that set asides still are supposed to restore the right to vote, the right to sit on a jury, the right to hold public office, and the right to bear arms, since these rights are not specifically excluded from the restoration of rights under a set aside AS IT WOULD BE ISSUED NOW.
Under the current http://nebraskalegislature.gov/laws/statutes.php?statute=29-2264 , Section 4:
--- Quote ---(4) 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; and
(b) Remove all civil disabilities and disqualifications imposed as a result of the conviction.
--- End quote ---
To correct the (at least) perceived unconstitutionality of a set aside vs. a pardon, the legislature has (in Section 5 of the statute) enumerated which rights a set aside does not restore, and for which a pardon must be obtained, but the right to bear arms is not one of the rights not restored under a set aside of conviction under current law.
AAllen:
Ruffled, I think you need to reread section 1 of 29-2264, it specifically says the restoration of all civil rights other than the right to vote must be done through a pardon,
(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 two years after 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.
Edit to add: The difference in how we are reading this law is the same reason that the pardons board would see things one way and the court another. The winning argument would be which portion of the statute in question is newer, and which way would the court rule? Of course that would be only for a particular case because the next case they could go a different direction.
Ruffled:
--- Quote from: AAllen on March 04, 2012, 02:57:36 PM ---Ruffled, I think you need to reread section 1 of 29-2264, it specifically says the restoration of all civil rights other than the right to vote must be done through a pardon,
(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 two years after 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.
Edit to add: The difference in how we are reading this law is the same reason that the pardons board would see things one way and the court another. The winning argument would be which portion of the statute in question is newer, and which way would the court rule? Of course that would be only for a particular case because the next case they could go a different direction.
--- End quote ---
But the right to vote is automatically restored. Section 1 says that an offender shall be given information on applying for a pardon, but it doesn't say civil rights can be restored exclusively via the pardon process when a person hasn't been sentenced to incarceration (i.e., was sentenced to probation or a fine or both). It doesn't really matter which portion of the statute is newer because Section 2 is still a part of the statute. If they mean to make a set aside worthless, then strike that whole section and make the law read the way the pardon board wants them to make it read. Otherwise, a set aside is still law, and restores all civil rights except the ones enumerated in the statute.
I linked to the current order that a judge would sign, a form up on the Nebraska Supreme Court's website. This order would be submitted with a petition for set aside of conviction if you were petitioning the court for a set aside TODAY.
http://www.supremecourt.ne.gov/forms/county/CC-6-11-2.pdf
--- Quote ---set aside shall remove any and all civil disabilities and
disqualifications allowed by law and imposed as a result of those convictions.
--- End quote ---
The right to bear arms is still one of those rights "allowed by law" to be restored by this order (again, referring back to 29-2264 and the enumerations of those rights which are not allowed by law to be restored with a set aside).
AAllen:
Why what part of the Statute is newer is important is that when there is a conflict in the law, as there is here, the newest addition wins.
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