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State v. Kudlacz

Supreme Court of Nebraska

July 25, 2014

STATE OF NEBRASKA, APPELLEE,
v.
ROBERT F. KUDLACZ, APPELLANT

Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge.

Joseph Kuehl, of Lefler & Kuehl Law Office, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 756

Cassel, J.

INTRODUCTION

The question posed in this appeal is whether a condition requiring periodic confinement of the offender in the county jail, as part of a sentence of probation, prevents a court from setting aside the conviction pursuant to Neb. Rev. Stat. § 29-2264 (Supp. 2013). The district court stated that it did, relying on language in one of our cases. We disagree. Our prior [288 Neb. 657] decision was not controlling on this point. And the plain language of the statute states otherwise. We reverse, and remand for further proceedings.

BACKGROUND

Robert F. Kudlacz pled guilty to one count of issuing a bad check, $100 to $500. The district court sentenced him to probation for a period of 15 months. As a condition of his probation, he was ordered to obtain suitable employment or to provide proof of his efforts to obtain suitable employment. He was further ordered to pay restitution.

Kudlacz failed to provide proof of seeking employment or being employed and to make payments in restitution. Consequently, the district court continued his probation for a period of 24 months and amended the conditions of his probation to include confinement in the county jail for a period of 90 days to be served on weekends.

Upon satisfactory completion of the conditions of his probation, the district court entered an order releasing Kudlacz from probation pursuant to § 29-2264(1). He then moved the court to set aside his conviction pursuant to § 29-2264(2). That subsection provides:

Whenever any person is convicted of a misdemeanor or felony and is placed on probation by the court or is sentenced to a fine only, he or she may, after satisfactory fulfillment of the conditions of probation for the entire period ...

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