Friday, February 03, 2006

Lets pass the hat around so that Mr. McCray can rent a nice place next to the Stephans'. Follow up: Nebraska Supreme Court (J. Stephan) withdraws July 2005 opinion on sex offender classification appeal and now rules that State Patrol must drop sex offender's risk score level from III to II despite Unicameral command to give no benefit to offenders for expungements . State (Nebraska State Patrol) v. McCray, 271 Neb. 1 Filed February 3, 2006. No. S-04-395 superseding opinion State v McCray (McCray I) Supreme Court agrees to rehearing from its July 2005 ruling that the offenders expunged misdemeanor convictions would still count in determining his risk profile under the Nebraska Sex Offender Registration Act (SORA), Neb. Rev. Stat. §§ 29-4001 to 29-4013 (Cum. Supp. 2004), and now holds that notwithstanding the Legislature's intervening amendments specifically applying expunged convictions to offender risk scores, the Court will not allow the Patrol to count convictions expunged under § 29-2264 RRS Neb., thereby dropping the offender's risk level from Level III ( § 29-4013(2)(c)(iii); 272 Neb. Admin. Code, ch. 19, § 13.04 ) to Level II (§ 29-4013(2)(c)(ii); 272 Neb. Admin. Code, ch. 19, § 13.03) During the pendency of McCray's appeal, the Legislature addressed this issue. In 2005, § 29-2264(5) was amended to provide that the setting aside of a conviction pursuant to § 29-2264(2) shall not: (h) Preclude proof of the conviction as evidence whenever the fact of the conviction is relevant to a determination of risk of recidivism under section 29-4013; or (i) 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. Further, this amendment was retroactive, Laws 2005, LB 713, {amendment 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." }See § 29-2264(6) (Supp. 2005).
We conclude that the 2005 amendments to § 29-2264(5) are not applicable to this case. The orders setting aside McCray's convictions are final judgments which nullified the convictions and removed all civil disabilities which were not exempted from restoration by § 29-2264(5)(a) through (g) as it existed on the date of the orders. See State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002). A legislative act will not be permitted, even if an intent to do so is clear, to operate retrospectively where it will have the effect of invalidating or impairing rights which have vested by virtue of the judgment of a court. Karrer v. Karrer, 190 Neb. 610, 211 N.W.2d 116 (1973). The 2003 orders vested McCray with a right to have the three set-aside convictions used only for those purposes enumerated in the statute at the time the orders were entered. Applying the amended version of § 29-2264(5) to this case would have the effect of modifying the judgments to add a new purpose for which the set-aside convictions could be used, thereby impairing McCray's rights.

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