If my criminal case is on appeal do I have to disclose it to my employer?
Most licensed professionals are required to report criminal convictions. In many cases, the licensing agency is aware of criminal charges long before the case goes to trial. It is common for a licensed professional to be in the position of defending their license while simultaneously defending against criminal charges for the same alleged conduct.
But what if the only requirement is to report a criminal conviction?
While other Enron officers were convicted for a variety of fraudulent activities, Ken Lay, the former Enron executive and spearheaders of the fraud, was not. The reason: Lay died while his case was on appeal. Because Lay died before his appeal was decided, his conviction was never final. Thus, Ken Lay, one of the most sinister players in the Enron scandal was never convicted of fraud or any other crime, thus preventing the government from seizing Mr. lay’s estate.
So, when is the conviction final?
There must be a final judgment from a lower tribunal for an appellate court to establish jurisdiction, the execution of the sentence is suspended until the resolution of the appeal. Because the sentence is suspended while a criminal case is on appeal, the conviction should not be considered final until all appeal options are exhausted.
However, some employers and agencies will argue that the final judgment of the trial court was a conviction and should have been disclosed, even if the sentence had not yet been affirmed.
According to State v. Vela, for an appellate court to acquire jurisdiction of an appeal, there must be a final judgment by a lower court. However, once a final judgment is given, and one of the parties files an appeal, the execution of the sentence is suspended pending the outcome of the appeal.
Additionally, Neb. Rev. Stat. § 29-2301 provides: “When a person is convicted of an offense and gives notice of his or her intention to appeal to the Court of Appeals or Supreme Court, the execution of the sentence or judgment shall be suspended until such time as the appeal has been determined. The trial court, in its discretion, may allow the defendant to continue at liberty under bail or admit the defendant to bail during the suspension of sentence.”
Because the case law and relevant statute do not use the word “conviction”, there is uncertainty as to the word’s applicable interpretation. Whether a conviction is “final” depends on whether the trial court’s judgment is considered a conviction, or if the conviction is not final until a sentence is ultimately affirmed.
For purposes of collateral review, all appeal options must be exhausted or expired before a conviction is considered final. According to State v. Lotter, “A criminal conviction is final for purposes of collateral review when the judgment of conviction is rendered, the availability of appeal is exhausted, and the time for petition for certiorari has lapsed.”
Additionally, a case on direct appeal cannot be considered a final conviction for purposes of enhancement. “[W]here the evidence of the former violations charged shows that proceedings in error are pending and undisposed of which might result in a reversal of such judgment, such evidence is insufficient and incompetent to establish a prior conviction.”
People often argue that if a case on direct appeal cannot be used for enhancement purposes in a court of law, it should not be given substantial weight in an employment context. However, individual employers may view criminal appeals differently and for this reason, sometimes it is best to disclose the conviction even though it is on appeal.
If you or someone you know has been convicted of a crime, contact the relentless criminal defense attorneys at Berry Law.