29-101. Terms, usage.

Unless otherwise provided, words used in this code in the present tense include the future as well as the present. Words used in the masculine gender comprehend as well the feminine and neuter. The singular number includes the plural and the plural the singular. The term writing includes printing. The term oath includes an affirmation.

Source:G.S.1873, c. 58, § 246, p. 781; R.S.1913, § 8901; C.S.1922, § 9922; C.S.1929, § 29-101; R.S.1943, § 29-101.


Annotations

29-102. Repealed. Laws 1978, LB 748, § 61.

29-103. Magistrate, defined.

The term magistrate in this code, when not otherwise expressly stated, shall mean a judge of the county court or clerk magistrate.

Source:G.S.1873, c. 58, § 248, p. 782; R.S.1913, § 8903; C.S.1922, § 9924; C.S.1929, § 29-103; R.S.1943, § 29-103; Laws 1972, LB 1032, § 161;    Laws 1984, LB 13, § 47;    Laws 1986, LB 529, § 27.    


Annotations

29-104. Prosecuting attorney, defined.

The term prosecuting attorney means any county attorney or city attorney or assistant city attorney when such attorney is prosecuting any violation designated as a misdemeanor or traffic infraction.

Source:G.S.1873, c. 58, § 249, p. 782; R.S.1913, § 8904; C.S.1922, § 9925; C.S.1929, § 29-104; R.S.1943, § 29-104; Laws 1975, LB 168, § 1;    Laws 1998, LB 218, § 8.    


Annotations

29-105. Code; general and special provisions.

In the construction of this code each general provision shall be controlled by a special provision on the same subject, if there is a conflict.

Source:G.S.1873, c. 58, § 250, p. 782; R.S.1913, § 8905; C.S.1922, § 9926; C.S.1929, § 29-105; R.S.1943, § 29-105.


Annotations

29-106. Code and other law; construe according to plain import of language.

This code and every other law upon the subject of crime which may be enacted shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects, and no person shall be punished for an offense which is not made penal by the plain import of the words, upon pretense that he has offended against its spirit.

Source:G.S.1873, c. 58, § 251, p. 782; R.S.1913, § 8906; C.S.1922, § 9927; C.S.1929, § 29-106; R.S.1943, § 29-106.


Annotations

29-107. Person or other general term, when protection of property intended; meaning.

Whenever any property or interest is intended to be protected by a provision of the penal law, and the general term person or any other general term is used to designate the party whose property is intended to be protected, the provisions of such penal laws and the protection thereby given shall extend to the property of the state, or of any county, and of all public or private corporations.

Source:G.S.1873, c. 58, § 252, p. 782; R.S.1913, § 8907; C.S.1922, § 9928; C.S. 1929, § 29-107; R.S.1943, § 29-107.


29-108. Signature, how construed.

The word signature includes the mark of a person unable to write his name; a mark shall have the same effect as a signature when the name is written by some other person and the mark is made near thereto by the person unable to write his name.

Source:G.S.1873, c. 58, § 253, p. 782; R.S.1913, § 8908; C.S.1922, § 9929; C.S.1929, § 29-108; R.S.1943, § 29-108.


29-109. Terms not defined, how construed; titles, treatment.

Except where a word, term or phrase is specially defined, all words used in this code are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed. The titles merely, to the various chapters, articles, sections or clauses of this code, which are written or printed upon the bill at the time of its approval, shall constitute no part thereof.

Source:G.S.1873, c. 58, § 254, p. 782; R.S.1913, § 8909; C.S.1922, § 9930; C.S.1929, § 29-109; R.S.1943, § 29-109.


Annotations

29-110. Prosecutions; complaint, indictment, or information; filing; time limitations; exceptions.

(1) Except as otherwise provided by law, no person shall be prosecuted for any felony unless the indictment is found by a grand jury within three years next after the offense has been done or committed or unless a complaint for the same is filed before the magistrate within three years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.

(2) Except as otherwise provided by law, no person shall be prosecuted, tried, or punished for any misdemeanor or other indictable offense below the grade of felony or for any fine or forfeiture under any penal statute unless the suit, information, or indictment for such offense is instituted or found within one year and six months from the time of committing the offense or incurring the fine or forfeiture or within one year for any offense the punishment of which is restricted by a fine not exceeding one hundred dollars and to imprisonment not exceeding three months.

(3) Except as otherwise provided by law, no person shall be prosecuted for kidnapping under section 28-313, false imprisonment under section 28-314 or 28-315, child abuse under section 28-707, pandering under section 28-802, debauching a minor under section 28-805, or an offense under section 28-813 when the victim is under sixteen years of age at the time of the offense (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's sixteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's sixteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.

(4) Except as otherwise provided by law, no person shall be prosecuted for a violation of subsection (2) or (3) of section 28-831 (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.

(5) Except as otherwise provided by law, no person shall be prosecuted for an offense under section 28-813.01 or 28-1463.05 (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.

(6) No person shall be prosecuted for a violation of the Securities Act of Nebraska under section 8-1117 unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.

(7) No person shall be prosecuted for criminal impersonation under section 28-638, identity theft under section 28-639, or identity fraud under section 28-640 unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.

(8) No person shall be prosecuted for a violation of section 68-1017 if the aggregate value of all funds and other benefits obtained or attempted to be obtained is five hundred dollars or more unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.

(9) No person shall be prosecuted for knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult under section 28-386 unless the indictment for such offense is found by a grand jury within six years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within six years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.

(10) Except as otherwise provided by law, no person shall be prosecuted for an offense under section 28-717 (a) unless the indictment for such offense is found by a grand jury within one year and six months next after the offense has been committed or within one year and six months next after the child reaches the age of majority, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within one year and six months next after the offense has been committed or within one year and six months next after the child reaches the age of majority, whichever is later, and a warrant for the arrest of the defendant has been issued.

(11) There shall not be any time limitations for prosecution or punishment for treason, murder, arson, forgery, sexual assault in the first or second degree under section 28-319 or 28-320, sexual assault of a child in the second or third degree under section 28-320.01, incest under section 28-703, sexual assault of a child in the first degree under section 28-319.01, labor trafficking of a minor or sex trafficking of a minor under subsection (1) of section 28-831, or an offense under section 28-1463.03; nor shall there be any time limitations for prosecution or punishment for sexual assault in the third degree under section 28-320 when the victim is under sixteen years of age at the time of the offense.

(12) The time limitations prescribed in this section shall include all inchoate offenses pursuant to the Nebraska Criminal Code and compounding a felony pursuant to section 28-301.

(13) The time limitations prescribed in this section shall not extend to any person fleeing from justice.

(14) When any suit, information, or indictment for any crime or misdemeanor is limited by any statute to be brought or exhibited within any other time than is limited by this section, then the suit, information, or indictment shall be brought or exhibited within the time limited by such statute.

(15) If any suit, information, or indictment is quashed or the proceedings set aside or reversed on writ of error, the time during the pendency of such suit, information, or indictment so quashed, set aside, or reversed shall not be reckoned within this statute so as to bar any new suit, information, or indictment for the same offense.

(16) The changes made to this section by Laws 2004, LB 943, shall apply to offenses committed prior to April 16, 2004, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.

(17) The changes made to this section by Laws 2005, LB 713, shall apply to offenses committed prior to September 4, 2005, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.

(18) The changes made to this section by Laws 2009, LB 97, and Laws 2006, LB 1199, shall apply to offenses committed prior to May 21, 2009, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.

(19) The changes made to this section by Laws 2010, LB809, shall apply to offenses committed prior to July 15, 2010, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.

(20) The changes made to this section by Laws 2016, LB934, shall apply to offenses committed prior to April 19, 2016, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.

(21) The changes made to this section by Laws 2019, LB519, shall apply to offenses committed prior to September 1, 2019, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.

Source:G.S.1873, c. 58, § 256, p. 783; R.S.1913, § 8910; C.S.1922, § 9931; C.S.1929, § 29-110; R.S.1943, § 29-110; Laws 1965, c. 147, § 1, p. 489; Laws 1989, LB 211, § 1;    Laws 1990, LB 1246, § 10;    Laws 1993, LB 216, § 10;    Laws 2004, LB 943, § 8;    Laws 2005, LB 713, § 2;    Laws 2006, LB 1199, § 10;    Laws 2009, LB97, § 21;    Laws 2009, LB155, § 17;    Laws 2010, LB809, § 1;    Laws 2016, LB934, § 10;    Laws 2019, LB519, § 13;    Laws 2020, LB881, § 13.    


Cross References

Annotations

29-111. Fines and punishments; how enforced.

All fines and punishments provided for in this code shall be enforced by the procedure provided for in this code so far as such procedure extends or can be made applicable.

Source:G.S.1873, c. 58, § 257, p. 783; R.S.1913, § 8911; C.S.1922, § 9932; C.S.1929, § 29-111; R.S.1943, § 29-111.


29-112. Felon; disqualified as juror or officeholder; warrant of discharge; effect; right to vote.

Any person sentenced to be punished for any felony, when the sentence is not reversed or annulled, is incompetent to be a juror or to hold any office of honor, trust, or profit within this state, unless such person receives from the Board of Pardons of this state a warrant of discharge, in which case such person shall be restored to such civil rights and privileges as enumerated or limited by the Board of Pardons. The warrant of discharge shall not release such person from the costs of conviction unless otherwise ordered by the Board of Pardons.

Any person sentenced to be punished for any felony, when the sentence is not reversed or annulled, is not qualified to vote until such person has completed the sentence, including any parole term. The disqualification is automatically removed at such time.

Source:G.S.1873, c. 58, § 258, p. 783; R.S.1913, § 8912; Laws 1919, c. 56, § 1, p. 160; C.S.1922, § 9933; C.S.1929, § 29-112; R.S.1943, § 29-112; Laws 1951, c. 86, § 1, p. 249; Laws 1959, c. 117, § 1, p. 448; Laws 2002, LB 1054, § 3;    Laws 2005, LB 53, § 1;    Laws 2024, LB20, § 1.    
Effective Date: July 19, 2024


Cross References

Annotations

29-112.01. Restoration of civil rights; felon; procedure.

Any person sentenced to be punished for any felony, when the sentence is other than confinement in a Department of Correctional Services adult correctional facility, shall be restored to such civil rights as enumerated or limited by the Board of Pardons upon receipt from the Board of Pardons of a warrant of discharge, which shall be issued by such board upon receiving from the sentencing court a certificate showing satisfaction of the judgment and sentence entered against such person.

Source:Laws 1959, c. 117, § 2, p. 448; Laws 1993, LB 31, § 3;    Laws 2002, LB 1054, § 4.    


Cross References

29-113. Felon of other states; disqualified as juror or officeholder; right to vote.

Any person who has been convicted of a felony under the laws of any other state shall be deemed incompetent to be a juror or to hold any office of honor, trust, or profit within this state unless such person has been restored to civil rights under the laws of the state in which the felony was committed.

Any person who has been convicted of a felony under the laws of any other state is not qualified to vote until such person has completed his or her sentence, including any parole term.

Source:G.S.1873, c. 58, § 259, p. 783; R.S.1913, § 8913; C.S.1922, § 9934; C.S.1929, § 29-113; R.S.1943, § 29-113; Laws 1951, c. 86, § 2, p. 249; Laws 1969, c. 236, § 1, p. 871; Laws 1993, LB 31, § 4;    Laws 2002, LB 1054, § 5;    Laws 2005, LB 53, § 2;    Laws 2024, LB20, § 2.    
Effective Date: July 19, 2024


29-114. Repealed. Laws 1971, LB 187, § 1.

29-115. Suppression of statement by defendant; filing of motion; when made; failure to object before trial; effect; exceptions; effect.

Any person aggrieved by a statement taken from him or her which is not a voluntary statement, or any statement which he or she believes was taken from him or her in violation of the fifth or sixth amendments of the Constitution of the United States, may move for suppression of such statement for use as evidence against him or her. The suppression motion shall be filed in the district court where a felony is charged and may be made at any time after the information or indictment is filed, and must be filed at least ten days before trial, unless otherwise permitted by the court for good cause shown. When the charge is other than a felony, the motion shall be filed in the court where the complaint is pending, and must be filed at least ten days before trial or at the time of the plea to the complaint, whichever is later, unless otherwise permitted by the court for good cause shown. Unless claims of a statement being involuntary or taken in violation of the fifth or sixth amendments of the Constitution of the United States are raised by motion before trial as provided in this section, all objections to the use of such statements as evidence on these grounds shall be deemed waived, except that the court may entertain such motions to suppress after the commencement of trial when the defendant is surprised by the introduction of such statements by the state, and also the court in its discretion may entertain motions to suppress such statements when the defendant was not aware of the grounds for any such motion before the commencement of trial, or in such situations as the court deems that justice may require. In the event that the trial court entertains any such motion after the commencement of trial, the defendant shall be deemed to have waived any jeopardy which may have attached. None of the foregoing shall affect the right of the defendant to present the question of the voluntariness of the statement, or the question of whether the proper constitutional safeguards were given to any defendant either in custody or otherwise significantly deprived of his or her liberty, for the consideration of the fact finder at trial.

Source:Laws 1981, LB 411, § 1; Laws 1998, LB 218, § 9.    


Annotations

29-116. Suppression of statement by defendant; order granting suppression; review; procedure; appeal.

(1) In addition to any other rights of appeal, the state shall have the right to appeal from an order granting a motion for the suppression of statements alleged to be involuntary or in violation of the fifth or sixth amendments of the Constitution of the United States in the manner provided in this section.

(2) If such motion has been granted in the district court, the Attorney General or the county attorney or prosecuting attorney with the consent of the Attorney General may file his or her application with the Clerk of the Supreme Court asking for a summary review of the order granting the motion. The review shall be made by a judge of the Court of Appeals at chambers upon such notice, briefs, and argument as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter, the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.

(3) If such motion has been granted in the county court, the Attorney General or the county attorney or prosecuting attorney may file his or her application with the clerk of the district court in the district in which the motion has been granted asking for a summary review of the order granting the motion. The review shall be made by a judge of the district court upon such notice, briefs, and arguments as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.

Source:Laws 1981, LB 411, § 2; Laws 1991, LB 732, § 71; Laws 1992, LB 360, § 7;    Laws 1998, LB 218, § 10.    


Annotations

29-117. Suppression of statement by defendant; application for review; filing; when.

The application for review provided in section 29-116 shall be accompanied by a copy of the order of the trial court granting the motion to suppress and a bill of exceptions containing all of the evidence, including affidavits, considered by the trial court in its ruling on the motion, and so certified by the trial court. The application shall be filed with the Clerk of the Supreme Court, if the trial court is the district court, or with the clerk of the district court, if the trial court is the county court, within such time as may be ordered by the trial court, which in fixing such time shall take into consideration the length of time required to prepare the bill of exceptions, and shall also consider whether the defendant is in jail or whether he or she is on bail, but in no event shall more than thirty days be given in which to file such application.

Source:Laws 1981, LB 411, § 3; Laws 1998, LB 218, § 11;    Laws 2000, LB 921, § 30.    


29-118. Suppression of statement by defendant; order granting suppression; review; trial court; duties.

In making an order granting a motion to suppress a statement, the trial court shall in such order fix a time, not exceeding ten days, in which the county attorney or other prosecuting attorney may file a notice with the clerk of such court of his or her intention to seek a review of the order. Upon the filing of such notice, the trial court shall fix a time in which the application for review shall be filed with the clerk of the appellate court.

Source:Laws 1981, LB 411, § 4; Laws 1998, LB 218, § 12.    


29-119. Plea agreement; terms, defined.

For purposes of this section and sections 23-1201, 29-120, and 29-2261, unless the context otherwise requires:

(1) A plea agreement means that as a result of a discussion between the defense counsel and the prosecuting attorney:

(a) A charge is to be dismissed or reduced; or

(b) A defendant, if he or she pleads guilty to a charge, may receive less than the maximum penalty permitted by law; and

(2)(a) Victim means a person who has had a personal confrontation with an offender as a result of a homicide under sections 28-302 to 28-306, a first degree assault under section 28-308, a second degree assault under section 28-309, a third degree assault under section 28-310 when the victim is an intimate partner as defined in section 28-323, a first degree false imprisonment under section 28-314, a first degree sexual assault under section 28-319, a sexual assault of a child in the first degree under section 28-319.01, a second or third degree sexual assault under section 28-320, a sexual assault of a child in the second or third degree under section 28-320.01, domestic assault in the first, second, or third degree under section 28-323, or a robbery under section 28-324. Victim also includes a person who has suffered serious bodily injury as defined in section 28-109 as a result of a motor vehicle accident when the driver was charged with a violation of section 60-6,196 or 60-6,197 or with a violation of a city or village ordinance enacted in conformance with either section.

(b) In the case of a homicide, victim means the nearest surviving relative under the law as provided by section 30-2303 but does not include the alleged perpetrator of the homicide.

(c) In the case of a violation of section 28-813.01, 28-1463.03, 28-1463.04, or 28-1463.05, victim means a person who was a child as defined in section 28-1463.02 and a participant or portrayed observer in the visual depiction of sexually explicit conduct which is the subject of the violation and who has been identified and can be reasonably notified.

(d) In the case of a sexual assault of a child, a possession offense of a visual depiction of sexually explicit conduct, or a distribution offense of a visual depiction of sexually explicit conduct, victim means the child victim and the parents, guardians, or duly appointed legal representative of the child victim but does not include the alleged perpetrator of the crime.

(e) Victim also includes a person who was the victim of a theft under section 28-511, 28-512, 28-513, or 28-517 when (i) the value of the thing involved is five thousand dollars or more and (ii) the victim and perpetrator were intimate partners as defined in section 28-323.

(f) Victim also includes a sexual assault victim as defined in section 29-4309.

Source:Laws 1983, LB 78, § 1;    Laws 1990, LB 87, § 2;    Laws 1993, LB 370, § 10;    Laws 1998, LB 309, § 2;    Laws 2004, LB 270, § 3;    Laws 2006, LB 1199, § 11;    Laws 2010, LB728, § 8;    Laws 2018, LB160, § 1;    Laws 2019, LB125, § 1;    Laws 2020, LB43, § 9.    


Annotations

29-120. Plea agreement; prosecuting attorney; duties.

Prior to reaching a plea agreement with defense counsel, a prosecuting attorney, prosecuting a violation of a city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197, shall consult with or make a good faith effort to consult with the victim regarding the content of and reasons for such plea agreement.

Source:Laws 1983, LB 78, § 3;    Laws 1993, LB 370, § 11.    


29-121. Transferred to section 43-4903.

29-122. Criminal responsibility; intoxication; not a defense; exceptions.

A person who is intoxicated is criminally responsible for his or her conduct. Intoxication is not a defense to any criminal offense and shall not be taken into consideration in determining the existence of a mental state that is an element of the criminal offense unless the defendant proves, by clear and convincing evidence, that he or she did not (1) know that it was an intoxicating substance when he or she ingested, inhaled, injected, or absorbed the substance causing the intoxication or (2) ingest, inhale, inject, or absorb the intoxicating substance voluntarily.

Source:Laws 2011, LB100, § 1.    


Annotations

29-201. County judges as magistrates; jurisdiction.

All county judges in this state shall have the same and equal powers of jurisdiction in all matters relating to the enforcement of the criminal laws of the state, except as otherwise expressly provided, and the jurisdiction of all such officers as magistrates, for the discharge of the duties and for the exercise of the powers enjoined and conferred by this code, shall extend to all crimes and offenses punishable by the laws of this state, committed within their respective jurisdictions, and for the prevention of crimes and offenses as in this code provided, throughout their respective counties.

Source:G.S.1873, c. 58, § 260, p. 784; R.S.1913, § 8914; C.S.1922, § 9935; C.S.1929, § 29-201; R.S.1943, § 29-201; Laws 1972, LB 1032, § 162.    


29-202. Repealed. Laws 1972, LB 1032, § 287.

29-203. District judges and county judges; conservators of the peace; jurisdiction.

The judges of the district courts in their respective districts, and the magistrates mentioned in section 29-201 in their respective counties, shall jointly and severally be conservators of the peace within their respective jurisdictions, and shall have full power to enforce or cause to be enforced all laws that now exist or that shall hereafter be made for the prevention and punishment of offenses, or for the preservation and observance of the peace. Judges of the district courts shall have the same powers to require securities for the keeping of the peace and good behavior, and bail for appearance in courts to answer complaints to keep the peace, and for crimes and offenses committed in their respective districts as any of the magistrates aforesaid have in their respective counties.

Source:G.S.1873, c. 58, § 262, p. 784; R.S.1913, § 8916; C.S.1922, § 9937; C.S.1929, § 29-203; R.S.1943, § 29-203.


Annotations

29-204. Repealed. Laws 1988, LB 1030, § 53.

29-205. Fugitive; apprehension and arrest.

If any person or persons who may be charged with the commission of a crime or offense made punishable by the laws of this state shall abscond or remove from the county in which such crime or offense is charged to have been committed, it shall be lawful for any sheriff or other person to apprehend the person or persons so charged, remove him, her, or them to the county in which the alleged crime may be said to have been committed, and deliver such person or persons to any magistrate in such county, who shall cause the person or persons so delivered to be dealt with as the law may direct.

Source:G.S.1873, c. 58, § 264, p. 785; R.S.1913, § 8918; C.S.1922, § 9939; C.S.1929, § 29-205; R.S.1943, § 29-205; Laws 1988, LB 1030, § 22.    


Annotations

29-206. Repealed. Laws 1972, LB 1032, § 287.

29-207. Repealed. Laws 1972, LB 1032, § 287.

29-208. Criminal identification; agents; power of Governor to appoint.

The Governor is hereby authorized to appoint such agents as may be necessary for carrying out the provisions of sections 29-208 to 29-210.

Source:Laws 1921, c. 207, § 1, p. 739; C.S.1922, § 9942; C.S.1929, § 29-208; R.S.1943, § 29-208.


29-209. Criminal identification; fingerprints and descriptions; duties of law enforcement officers and agencies.

It is hereby made the duty of the sheriffs of the several counties of the State of Nebraska, the chiefs of police of incorporated cities therein, marshals of incorporated cities and towns therein, and agencies of state government having powers of arrest to furnish the Nebraska State Patrol two copies of fingerprints on forms provided by the Nebraska State Patrol and the Federal Bureau of Investigation, and descriptions of all persons who are arrested by them (1) for any felony or (2) as felony fugitives from the criminal justice system of another jurisdiction. This section is not intended to include violators of city ordinances or of persons arrested for other trifling offenses. The Nebraska State Patrol shall in all appropriate cases forward one copy of such fingerprints and other necessary identifying data and information to the system maintained by the Federal Bureau of Investigation.

Source:Laws 1921, c. 207, § 2, p. 739; C.S.1922, § 9943; C.S.1929, § 29-209; R.S.1943, § 29-209; Laws 1978, LB 713, § 16.    


Cross References

29-210. Criminal identification and information; Nebraska State Patrol; duties.

The Nebraska State Patrol is hereby authorized (1) to keep a complete record of all reports filed of all personal property stolen, lost, found, pledged or pawned, in any city or county of this state; (2) to provide for the installation of a proper system and file, and cause to be filed therein cards containing an outline of the methods of operation employed by criminals; (3) to use any system of identification it deems advisable, or that may be adopted in any of the penal institutions of the state; (4) to keep a record consisting of duplicates of measurements, processes, operations, plates, photographs, measurements and descriptions of all persons confined in penal institutions of this state; (5) to procure and maintain, so far as practicable, plates, photographs, descriptions and information concerning all persons who shall hereafter be convicted of felony or imprisoned for violating the military, naval or criminal laws of the United States, and of well-known and habitual criminals from whatever source procurable; (6) to furnish any criminal justice agency with any information, material, records, or means of identification which may properly be disseminated and that it may desire in the proper administration of criminal justice; (7) to upgrade, when feasible, the existing law enforcement communications network; and (8) to establish and maintain an improved system or systems by which relevant information may be collected, coordinated, and made readily available to serve qualified persons or agencies concerned with the administration of criminal justice.

Source:Laws 1921, c. 207, § 3, p. 739; C.S.1922, § 9944; C.S.1929, § 29-210; R.S.1943, § 29-210; Laws 1978, LB 713, § 17.    


Cross References

29-211. Motor vehicle pursuit; law enforcement agency; adopt policy; contents; training.

(1) Each law enforcement agency within the State of Nebraska shall adopt and implement a written policy regarding the pursuit of motor vehicles. Such policy shall contain at least the following elements:

(a) Standards which describe when a pursuit may be initiated, taking into consideration the nature and severity of the offense involved;

(b) Standards which describe when a pursuit is to be discontinued, giving special attention to (i) the degree of danger presented to the general public and the pursuing officer and (ii) the probability of later apprehension of the subject based upon his or her identification;

(c) Procedures governing the operation of pursuits including, but not limited to, the number and types of vehicles which may be used, the method of operation of such vehicles, and the exercise of supervision during pursuits;

(d) Procedures governing pursuits which include other law enforcement agencies or which extend into the jurisdiction of other law enforcement agencies; and

(e) A system of mandatory continued planning and review of training of personnel appropriate and consistent with the policies and jurisdiction of the law enforcement agency regarding the proper handling of pursuits, including, at a minimum, an annual review of the policy with each sworn law enforcement officer and dispatcher.

(2) It shall be the responsibility of each law enforcement agency within the State of Nebraska to ensure that all law enforcement officers who commence employment with such law enforcement agency receive specialized training in pursuit driving at the Nebraska Law Enforcement Training Center or at an equivalent training program approved by the Nebraska Police Standards Advisory Council.

Source:Laws 1981, LB 76, § 3;    Laws 1996, LB 952, § 3.    


Cross References

29-212. Missing Persons Information Clearinghouse; terms, defined.

For purposes of sections 29-212 to 29-214.01, unless the context otherwise requires:

(1) Missing person means a person who has been reported as missing to a law enforcement agency; and

(2) Missing Persons Information Clearinghouse means the repository established within the Nebraska State Patrol pursuant to section 29-214.01.

Source:Laws 1985, LB 187, § 1;    Laws 2005, LB 111, § 1.    


29-213. Missing Persons Information Clearinghouse; missing person report; law enforcement agency; duties.

When a report of a missing person has been received by a law enforcement agency having jurisdiction, the agency shall notify:

(1) On-duty personnel of the agency, as soon as practicable, through internal means and over the appropriate police radio network;

(2) All law enforcement agencies considered to be involved by the law enforcement agency having jurisdiction;

(3) All law enforcement agencies to which the person filing the report requests that the information be sent, if the request is reasonable in light of the information contained in the report;

(4) All law enforcement agencies requesting the information; and

(5) The Missing Persons Information Clearinghouse.

Source:Laws 1985, LB 187, § 2;    Laws 2005, LB 111, § 2.    


29-214. Missing Persons Information Clearinghouse; missing person report; unemancipated minor; law enforcement agency; duties.

(1) If a report of a missing person involves an unemancipated minor, the law enforcement agency shall immediately transmit the proper information for inclusion in the National Crime Information Center computer and the Missing Persons Information Clearinghouse.

(2) If a report of a missing person involves an unemancipated minor, a law enforcement agency shall not prevent an immediate active investigation on the basis of an agency rule which specifies an automatic time limitation for a missing person investigation.

Source:Laws 1985, LB 187, § 3;    Laws 2005, LB 111, § 3.    


Cross References

29-214.01. Missing Persons Information Clearinghouse; Nebraska State Patrol; powers and duties.

(1) The Missing Persons Information Clearinghouse is established within the Nebraska State Patrol. The Nebraska State Patrol shall provide for the administration of the clearinghouse and may adopt and promulgate rules and regulations to carry out the provisions of this section.

(2) The Missing Persons Information Clearinghouse shall be used by all law enforcement agencies in the state as a central repository for information on missing persons. Such information shall be provided on a uniform form prescribed by the Nebraska State Patrol.

(3) In connection with the Missing Persons Information Clearinghouse, the Nebraska State Patrol shall:

(a) Collect, process, maintain, and disseminate information about missing persons in Nebraska through hard copy or electronic means;

(b) Develop training programs for law enforcement agencies concerning the appropriate procedures to report missing persons to the clearinghouse;

(c) Cooperate with other states and the National Crime Information Center in the exchange of information on missing persons;

(d) Maintain a statewide, toll-free telephone line, twenty-four hours a day, to receive and disseminate information related to missing persons;

(e) Maintain an Internet website accessible to law enforcement agencies and to the public with information on missing persons and with information about the resources available through the clearinghouse. Nothing in this section shall prevent the Nebraska State Patrol from establishing a separate link accessible only to law enforcement agencies for the dissemination and collection of sensitive information as determined by the Nebraska State Patrol;

(f) Develop training programs to assist in the prevention of kidnapping;

(g) Maintain a registry of prevention and education materials and programs regarding missing and runaway minors through hard copy or electronic means;

(h) Distribute through hard copy or electronic means monthly missing persons bulletins to local law enforcement agencies and to other interested individuals, agencies, and media outlets which request such information. The bulletins shall contain information on missing persons in Nebraska, including names, photographs or other images, if available, descriptions of missing persons, the law enforcement agencies or persons to contact with information regarding missing persons, and the names of persons reported missing whose locations have been determined and confirmed;

(i) Produce, update at least weekly, and distribute, through hard copy or electronic means, press releases about missing persons to media outlets which request missing person information, containing the same or similar information contained in the monthly missing persons bulletin;

(j) Compile statistics relating to the incidence of missing persons within Nebraska; and

(k) Encourage and seek both financial and in-kind support from private individuals and organizations to assist in carrying out the provisions of this section.

(4) The purpose of the Missing Persons Information Clearinghouse is to serve as a repository. The clearinghouse does not relieve the law enforcement agency having jurisdiction over a missing person case of its investigatory duties and does not automatically involve the Nebraska State Patrol as the primary investigatory agency in such case.

(5) The Missing Persons Information Clearinghouse shall be notified after the location of a missing person has been determined and confirmed. After the location of a missing person has been determined and confirmed, the clearinghouse shall only release information described in subdivision (3)(h) of this section concerning the located person. Other information concerning the history of the missing person case shall be disclosed only to law enforcement agencies of this state and other jurisdictions when necessary for the discharge of official duties, and to the juvenile court in the county of residence of a formerly missing person who is a minor. All information in the clearinghouse relating to a missing person who is an adult shall be purged when the person's location has been determined and confirmed. All information in the clearinghouse relating to a missing person who is a minor shall be purged when the person reaches eighteen years of age and the person's location has been determined and confirmed.

Source:Laws 2005, LB 111, § 4.    


29-215. Law enforcement officers; jurisdiction; powers; contracts authorized.

(1) A law enforcement officer has the power and authority to enforce the laws of this state and of the political subdivision which employs the law enforcement officer or otherwise perform the functions of that office anywhere within his or her primary jurisdiction.

(2) Any law enforcement officer who is within this state, but beyond his or her primary jurisdiction, has the power and authority to enforce the laws of this state or any legal ordinance of any city or incorporated village or otherwise perform the functions of his or her office, including the authority to arrest and detain suspects, as if enforcing the laws or performing the functions within his or her primary jurisdiction in the following cases:

(a) Any such law enforcement officer, if in a fresh attempt to apprehend a person suspected of committing a felony, may follow such person into any other jurisdiction in this state and there arrest and detain such person and return such person to the law enforcement officer's primary jurisdiction;

(b) Any such law enforcement officer, if in a fresh attempt to apprehend a person suspected of committing a misdemeanor or a traffic infraction, may follow such person anywhere in an area within twenty-five miles of the boundaries of the law enforcement officer's primary jurisdiction and there arrest and detain such person and return such person to the law enforcement officer's primary jurisdiction;

(c) Any such law enforcement officer shall have such enforcement and arrest and detention authority when responding to a call in which a local, state, or federal law enforcement officer is in need of assistance. A law enforcement officer in need of assistance shall mean (i) a law enforcement officer whose life is in danger or (ii) a law enforcement officer who needs assistance in making an arrest and the suspect (A) will not be apprehended unless immediately arrested, (B) may cause injury to himself or herself or others or damage to property unless immediately arrested, or (C) may destroy or conceal evidence of the commission of a crime; and

(d) Any municipality or county may, under the provisions of the Interlocal Cooperation Act or the Joint Public Agency Act, enter into a contract with any other municipality or county for law enforcement services or joint law enforcement services. Under such an agreement, law enforcement personnel may have such enforcement authority within the jurisdiction of each of the participating political subdivisions if provided for in the agreement. Unless otherwise provided in the agreement, each participating political subdivision shall provide liability insurance coverage for its own law enforcement personnel as provided in section 13-1802.

(3) When probable cause exists to believe that a person is operating or in the actual physical control of any motor vehicle, motorboat, personal watercraft, or aircraft while under the influence of alcoholic liquor or of any drug or otherwise in violation of section 28-1465, 28-1466, 28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164, 60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02, the law enforcement officer has the power and authority to do any of the following or any combination thereof:

(a) Transport such person to a facility outside of the law enforcement officer's primary jurisdiction for appropriate chemical testing of the person;

(b) Administer outside of the law enforcement officer's primary jurisdiction any post-arrest test advisement to the person; or

(c) With respect to such person, perform other procedures or functions outside of the law enforcement officer's primary jurisdiction which are directly and solely related to enforcing the laws that concern a person operating or being in the actual physical control of any motor vehicle, motorboat, personal watercraft, or aircraft while under the influence of alcoholic liquor or of any other drug or otherwise in violation of section 28-1465, 28-1466, 28-1472, 37-1254.01, 37-1254.02, 60-4,163, 60-4,164, 60-6,196, 60-6,197, 60-6,211.01, or 60-6,211.02.

(4) For purposes of this section:

(a) Class I railroad has the same meaning as in section 81-1401;

(b) Law enforcement officer has the same meaning as peace officer as defined in section 49-801 and also includes conservation officers of the Game and Parks Commission and Class I railroad police officers; and

(c) Primary jurisdiction means the geographic area within the territorial limits of the state or political subdivision which employs the law enforcement officer.

Source:Laws 1994, LB 254, § 1;    Laws 1999, LB 87, § 68;    Laws 2003, LB 17, § 9;    Laws 2011, LB667, § 5;    Laws 2021, LB51, § 2.    


Cross References

Annotations

29-216. Victim of sex offense; law enforcement officer, prosecuting officer, or government official; prohibited acts.

(1) No law enforcement officer, prosecuting officer, or other government official shall ask or require an adult, youth, or child victim of a sex offense as defined under federal, tribal, state, territorial, or local law to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such offense.

(2) The refusal of a victim to submit to an examination as described in subsection (1) of this section shall not prevent the investigation of the offense.

Source:Laws 2007, LB143, § 1.    


29-217. Victim of certain criminal activity; visa; request for assistance; certifying agency or official; powers and duties.

(1) For purposes of this section:

(a) Certifying agency means a state or local law enforcement agency, prosecutor, or other authority that has responsibility for the investigation or prosecution of qualifying criminal activity, as described in 8 C.F.R. 214.14(a)(2);

(b) Certifying official means the head of the certifying agency or any person in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency, as described in 8 C.F.R. 214.14(a)(3);

(c) Form I-914B means Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victim of Trafficking in Persons, of the Department of Homeland Security, United States Citizenship and Immigration Services;

(d) Form I-918B means Form I-918, Supplement B, U Nonimmigrant Status Certification, of the Department of Homeland Security, United States Citizenship and Immigration Services;

(e) Investigation or prosecution has the same meaning as in 8 C.F.R. 214.14;

(f) Law enforcement agency means a state or local law enforcement agency, prosecutor, or other authority that has responsibility for the investigation or prosecution of severe forms of trafficking in persons, as described in 8 C.F.R. 214.11(a);

(g) Qualifying criminal activity has the same meaning as in 8 C.F.R. 214.14;

(h) Victim of qualifying criminal activity has the same meaning as in 8 C.F.R. 214.14;

(i) Victim of a severe form of trafficking in persons has the same meaning as in 8 C.F.R. 214.11; and

(j) All references to federal statutes and regulations refer to such statutes and regulations as they existed on January 1, 2020.

(2)(a) On request from an individual whom a law enforcement agency reasonably believes to be a victim of a severe form of trafficking in persons, for purposes of a nonimmigrant T visa, pursuant to the criteria in 8 U.S.C. 1101(a)(15)(T)(i)(I) and (III), a law enforcement agency, no later than ninety business days after receiving the request:

(i) Shall complete, sign, and return to the individual the Form I-914B; and

(ii) May submit a written request to an appropriate federal law enforcement officer asking such officer to file an application for continued presence pursuant to 22 U.S.C. 7105(c)(3).

(b) If the law enforcement agency determines that an individual does not meet the requirements of the law enforcement agency for completion of a Form I-914B, the law enforcement agency shall, no later than ninety business days after receiving the request, inform the individual of the reason and that the individual may make another request with additional evidence or documentation to satisfy such requirements. The law enforcement agency shall permit the individual to make such additional request.

(3)(a) On request from an individual whom a certifying agency reasonably believes to be a victim of qualifying criminal activity, for purposes of a nonimmigrant U visa, pursuant to the certification criteria in 8 U.S.C. 1101(a)(15)(U)(i)(II) to (IV) and (iii), a certifying official in the certifying agency, no later than ninety business days after receiving the request, shall complete, sign, and return to the individual the Form I-918B.

(b) For purposes of determining helpfulness pursuant to 8 U.S.C. 1101(a)(15)(U)(i)(III), an individual shall be considered helpful if, since the initiation of cooperation, the individual has not unreasonably refused to cooperate or failed to provide information and assistance reasonably requested by law enforcement or the prosecutor.

(c) If the certifying official determines that an individual does not meet the requirements of the certifying agency for completion of a Form I-918B, the certifying official shall, no later than ninety business days after receiving the request, inform the individual of the reason and that the individual may make another request with additional evidence or documentation to satisfy such requirements. The certifying official shall permit the individual to make such additional request.

(4) An investigation, the filing of charges, a prosecution, or a conviction are not required for an individual to request and obtain the signed and completed Form I-914B or Form I-918B from a law enforcement agency or certifying official.

(5) It is the exclusive responsibility of the federal immigration authorities to determine whether a person is eligible for a T or U visa. Completion of a Form I-914B or Form I-918B by a law enforcement agency or certifying official only serves to verify information regarding certain criteria considered by the federal government in granting such visas.

(6) A law enforcement agency, certifying agency, or certifying official has the discretion to revoke, disavow, or withdraw a previous completion of a Form I-914B or Form I-918B at any time after initial completion, as provided in 8 C.F.R. 214.11(d)(3)(ii) and 8 C.F.R. 214.14(h)(2)(i)(A).

(7) A law enforcement agency or certifying agency that receives a request under this section shall maintain an internal record of such request, including whether such request was granted or denied and, if denied, the reasons for such denial. Such record shall be maintained for at least three years from completion or denial of the request.

Source:Laws 2020, LB518, § 1.    


29-301. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-302. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-302.01. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-302.02. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-302.03. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-303. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-304. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-305. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-306. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-307. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-308. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-309. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-310. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-311. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-312. Repealed. Laws 1986, LB 529, § 58; Laws 1986, LB 1159, § 1.

29-313. Repealed. Laws 1972, LB 1333, § 1.

29-314. Repealed. Laws 1972, LB 1333, § 1.

29-315. Repealed. Laws 1972, LB 1333, § 1.

29-316. Repealed. Laws 1972, LB 1333, § 1.

29-401. Law violators; arrest by sheriff or other peace officer; juvenile under eighteen years; requirements.

Every sheriff, deputy sheriff, marshal, deputy marshal, security guard, police officer, or peace officer as defined in subdivision (15) of section 49-801 shall arrest and detain any person found violating any law of this state or any legal ordinance of any city or incorporated village until a legal warrant can be obtained, except that (1) any such law enforcement officer taking a juvenile under the age of eighteen years into his or her custody for any violation herein defined shall proceed as set forth in sections 43-248, 43-248.01, 43-250, 43-251, 43-251.01, and 43-253 and (2) the court in which the juvenile is to appear shall not accept a plea from the juvenile until finding that the parents of the juvenile have been notified or that reasonable efforts to notify such parents have been made as provided in section 43-250.

Source:G.S.1873, c. 58, § 283, p. 789; R.S.1913, § 8937; C.S.1922, § 9961; C.S.1929, § 29-401; R.S.1943, § 29-401; Laws 1967, c. 175, § 1, p. 490; Laws 1972, LB 1403, § 1;    Laws 1981, LB 346, § 86; Laws 1988, LB 1030, § 23;    Laws 1994, LB 451, § 1;    Laws 2009, LB63, § 22;    Laws 2010, LB771, § 14.    


Annotations

29-402. Arrest by person not an officer.

Any person not an officer may, without warrant, arrest any person, if a petit larceny or a felony has been committed, and there is reasonable ground to believe the person arrested guilty of such offense, and may detain him until a legal warrant can be obtained.

Source:G.S.1873, c. 58, § 284, p. 789; R.S.1913, § 8938; C.S.1922, § 9962; C.S.1929, § 29-402; R.S.1943, § 29-402.


Annotations

29-402.01. Shoplifters; detention; no criminal or civil liability.

A peace officer, a merchant, or a merchant's employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover them by taking the person into custody may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time. Such taking into custody and detention by a peace officer, merchant, or merchant's employee shall not render such peace officer, merchant, or merchant's employee criminally or civilly liable for slander, libel, false arrest, false imprisonment, or unlawful detention.

Source:Laws 1957, c. 101, § 1, p. 361; Laws 1963, c. 157, § 1, p. 556.


Annotations

29-402.02. Shoplifters; peace officer; arrest without warrant.

Any peace officer may arrest without warrant any person he has probable cause for believing has committed larceny in retail or wholesale establishments.

Source:Laws 1957, c. 101, § 2, p. 361.


29-402.03. Shoplifters; arrest; merchant or employee not liable.

A merchant or a merchant's employee who causes the arrest of a person, as provided for in section 29-402.01, for larceny of goods held for sale shall not be criminally or civilly liable for slander, libel, false arrest, or false imprisonment where the merchant or merchant's employee has probable cause for believing that the person arrested committed larceny of goods held for sale.

Source:Laws 1957, c. 101, § 3, p. 361; Laws 1963, c. 157, § 2, p. 557.


Annotations

29-403. Warrant; who may issue.

Judges of the district court and judges of the county court shall have power to issue process for the apprehension of any person charged with a criminal offense. Clerk magistrates shall have the power to issue such process as provided in section 24-519.

Source:G.S.1873, c. 58, § 285, p. 789; R.S.1913, § 8939; C.S.1922, § 9963; C.S.1929, § 29-403; R.S.1943, § 29-403; Laws 1972, LB 1032, § 166;    Laws 1984, LB 13, § 51;    Laws 1986, LB 529, § 28.    


29-404. Complaint; filing; procedure; warrant; issuance.

No complaint shall be filed with the magistrate unless such complaint is in writing and signed by the prosecuting attorney or by any other complainant. If the complainant is a person other than the prosecuting attorney or a city or village attorney prosecuting the violation of a municipal ordinance, he or she shall either have the consent of the prosecuting attorney or shall furnish to the magistrate a bond with good and sufficient sureties in such amount as the magistrate shall determine to indemnify the person complained against for wrongful or malicious prosecution. Whenever a complaint shall be filed with the magistrate, charging any person with the commission of an offense against the laws of this state, it shall be the duty of such magistrate to issue a warrant for the arrest of the person accused, if he or she has reasonable grounds to believe that the offense charged has been committed. The prosecuting attorney shall consent to the filing of such complaint if he or she is in possession of sufficient evidence to warrant the belief that the person named as defendant in such complaint is guilty of the crime alleged and can be convicted thereof. The Attorney General shall have the same power to consent to the filing of complaints as the prosecuting attorneys have in their respective counties.

Source:G.S.1873, c. 58, § 286, p. 790; R.S.1913, § 8940; C.S.1922, § 9964; C.S.1929, § 29-404; R.S.1943, § 29-404; Laws 1965, c. 148, § 1, p. 490; Laws 1975, LB 168, § 2;    Laws 1977, LB 497, § 1;    Laws 2011, LB669, § 21.    


Annotations

29-404.01. Arrest without warrant; supplemental provisions.

The provisions of sections 29-404.01 to 29-404.03 shall be supplemental and in addition to any other laws relating to the subject of arrest.

Source:Laws 1967, c. 172, § 1, p. 487.


29-404.02. Arrest without warrant; when; court appearance.

(1) Except as provided in sections 28-311.11 and 42-928, a peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed:

(a) A felony;

(b) A misdemeanor, and the officer has reasonable cause to believe that such person either (i) will not be apprehended unless immediately arrested, (ii) may cause injury to himself or herself or others or damage to property unless immediately arrested, (iii) may destroy or conceal evidence of the commission of such misdemeanor, or (iv) has committed a misdemeanor in the presence of the officer; or

(c) One or more of the following acts to one or more household members, whether or not committed in the presence of the peace officer:

(i) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument;

(ii) Placing, by physical menace, another in fear of imminent bodily injury; or

(iii) Engaging in sexual contact or sexual penetration without consent as defined in section 28-318.

(2) An individual arrested without a warrant under this section who remains in custody shall be brought before a court in the county where the arrest occurred for an appearance no later than seven days after such arrest. The appearance may be in person or conducted remotely by means of videoconferencing. The individual shall have the right to appear in person but must agree to waive the seven-day deadline if an in-person appearance within such time is not reasonably practicable.

(3) For purposes of this section:

(a) Household members includes spouses or former spouses, children, persons who are presently residing together or who have resided together in the past, persons who have a child in common whether or not they have been married or have lived together at any time, other persons related by consanguinity or affinity, and persons who are presently involved in a dating relationship with each other or who have been involved in a dating relationship with each other; and

(b) Dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context.

Source:Laws 1967, c. 172, § 2, p. 487; Laws 1989, LB 330, § 1;    Laws 2004, LB 613, § 6;    Laws 2017, LB289, § 11;    Laws 2024, LB1167, § 1.    
Effective Date: July 19, 2024


Annotations

29-404.03. Arrest without warrant; reasonable cause; conditions.

In determining whether reasonable cause exists to justify an arrest, a law enforcement officer may take into account all facts and circumstances, including those based upon any expert knowledge or experience which the officer in fact possessed, which a prudent officer would judge relevant to the likelihood that a crime has been committed and that the person to be arrested has committed it, and for such purpose the officer may rely on information he receives from any informant whom it is reasonable under the circumstances to credit, whether or not at the time of making the arrest the officer knows the informant's identity.

Source:Laws 1967, c. 172, § 3, p. 487.


Annotations

29-405. Warrant; misdemeanor, complainant; costs.

When the offense charged is a misdemeanor, the magistrate, before issuing the warrant, may, at his discretion, require the complainant to acknowledge himself responsible for costs in case the complaint shall be dismissed, which acknowledgment of security for costs shall be entered upon the docket; and the magistrate on dismissal may, if in his opinion the complaint was without probable cause, enter a judgment against such complainant for costs made thereon. In case the magistrate shall consider such complainant wholly irresponsible, such magistrate may, in his discretion, refuse to issue any warrant unless the complainant procure some responsible surety to the satisfaction of such magistrate for the costs in case of such dismissal, and such surety shall acknowledge himself so bound, and the magistrate shall enter it on his docket.

Source:G.S.1873, c. 58, § 287, p. 790; R.S.1913, § 8941; C.S.1922, § 9965; C.S.1929, § 29-405; R.S.1943, § 29-405.


Annotations

29-406. Warrant; to whom directed; contents.

The warrant shall be directed to the sheriff of the county or to the marshal or other police officer of a city or village and, reciting the substance of the accusation, shall command the officer to take the accused and bring him or her before the magistrate or court issuing the warrant or some other magistrate having cognizance of the case to be dealt with according to law. No seal shall be necessary to the validity of the warrant.

Source:G.S.1873, c. 58, § 288, p. 790; R.S.1913, § 8942; C.S.1922, § 9966; C.S.1929, § 29-406; R.S.1943, § 29-406; Laws 1972, LB 1032, § 167;    Laws 1988, LB 1030, § 24.    


Annotations

29-407. Warrant; persons who may execute.

The magistrate issuing any such warrant may make an order thereon authorizing a person to be named in such warrant to execute the warrant. The person named in such order may execute such warrant anywhere in the state by apprehending and conveying such offender before the magistrate issuing such warrant or before some other magistrate of the same county. All sheriffs, coroners, and others when required in their respective counties shall aid and assist in the execution of such warrant.

Source:G.S.1873, c. 58, § 289, p. 790; R.S.1913, § 8943; C.S.1922, § 9967; C.S.1929, § 29-407; R.S.1943, § 29-407; Laws 1988, LB 1030, § 25.    


Annotations

29-408. Warrant; pursuit and arrest of fugitive.

If any person charged as aforesaid with the commission of an offense shall flee from justice, it shall be lawful for the officer, in whose hands the warrant for such person has been placed, to pursue and arrest such person in any other county of this state, and to convey him before the magistrate issuing the warrant, or any other magistrate having cognizance of the case, of the county where such offense was committed.

Source:G.S.1873, c. 58, § 290, p. 790; R.S.1913, § 8944; C.S.1922, § 9968; C.S.1929, § 29-408; R.S.1943, § 29-408.


29-409. Fugitive; warrant for arrest and return; effect.

If any person charged with an offense shall abscond or remove from the county in which such offense is alleged to have been committed, it shall be lawful for any magistrate of the county in which such person may be found to issue a warrant for the arrest and removal of such person to the county in which the offense is alleged to have been committed, to be there delivered to any magistrate of such county, who shall cause the person so delivered to be dealt with according to law; and the warrant so issued shall have the same force and effect as if issued from the county in which such offense is alleged to have been committed.

Source:G.S.1873, c. 58, § 291, p. 791; R.S.1913, § 8945; C.S.1922, § 9969; C.S.1929, § 29-409; R.S.1943, § 29-409.


29-410. Prisoner; lawful arrest; detention.

Any officer or other person having in lawful custody any person accused of an offense for the purpose of bringing him before the proper magistrate or court, may place and detain such prisoner in any county jail of this state for one night or longer, as the occasion may require, so as to answer the purposes of the arrest and custody.

Source:G.S.1873, c. 58, § 292, p. 791; R.S.1913, § 8946; C.S.1922, § 9970; C.S.1929, § 29-410; R.S.1943, § 29-410.


Annotations

29-411. Warrants and arrests; powers of officer; direction for executing search warrant; damages.

In executing a warrant for the arrest of a person charged with an offense, or a search warrant, or when authorized to make an arrest for a felony without a warrant, the officer may break open any outer or inner door or window of a dwelling house or other building, if, after notice of his office and purpose, he is refused admittance; or without giving notice of his authority and purpose, if the judge or magistrate issuing a search warrant has inserted a direction therein that the officer executing it shall not be required to give such notice, but the political subdivision from which such officer is elected or appointed shall be liable for all damages to the property in gaining admission. The judge or magistrate may so direct only upon proof under oath, to his satisfaction that the property sought may be easily or quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, if such notice be given; but this section is not intended to authorize any officer executing a search warrant to enter any house or building not described in the warrant.

Source:G.S.1873, c. 58, § 293, p. 791; R.S.1913, § 8947; C.S.1922, § 9971; C.S.1929, § 29-411; R.S.1943, § 29-411; Laws 1965, c. 149, § 1, p. 491.


Annotations

29-412. Arrest under a warrant; prisoner to be taken before magistrate; return.

Whenever any person has been arrested under a warrant as provided in sections 29-401 to 29-411, it shall be the duty of the officer making the arrest to take the person so arrested before the proper magistrate; and the warrant by virtue of which the arrest was made, with the proper return endorsed thereon and signed by the officer, shall be delivered to such magistrate.

Source:G.S.1873, c. 58, § 294, p. 791; R.S.1913, § 8948; C.S.1922, § 9972; C.S.1929, § 29-412; R.S.1943, § 29-412.


29-413. Offense committed in view of magistrate; arrest; when authorized; detention.

When any offense is committed in view of any magistrate, he or she may, by verbal direction to any sheriff, marshal, or other proper officer or, if no such officer is present, then to any citizen, cause the offender to be arrested and kept in custody for the space of one hour unless he or she shall sooner be taken from such custody by virtue of a warrant issued on complaint under oath. A person so arrested shall not be confined in jail nor put upon trial until arrested by virtue of such a warrant.

Source:G.S.1873, c. 58, § 295, p. 791; R.S.1913, § 8949; C.S.1922, § 9973; C.S.1929, § 29-413; R.S.1943, § 29-413; Laws 1988, LB 1030, § 26.    


29-414. Rewards for conviction of felons; powers of county boards; limitation on amount.

The county boards of the several counties in this state are hereby authorized, when they deem the same expedient, to offer such rewards as in their judgment the nature of the case may require for the detection or apprehension of any person charged with or convicted of a felony, and pay the same, together with all necessary expenses, not otherwise provided by law, incurred in making such detection or apprehension, out of the county treasury; Provided, in no case shall the amount paid out for expense exceed the sum of three hundred dollars.

Source:G.S.1873, c. 58, § 296, p. 791; Laws 1907, c. 175, § 1, p. 507; R.S.1913, § 8950; C.S.1922, § 9974; C.S.1929, § 29-414; R.S.1943, § 29-414.


Annotations

29-415. Rewards for capture and conviction of horse and auto thieves; powers of sheriffs; limitation on amount.

The sheriffs of the several counties within this state are hereby authorized to offer and pay a reward not exceeding the sum of fifty dollars for the capture and conviction of any person charged with stealing a horse or horses, automobile or automobiles, within their respective counties; and the county boards of such counties shall audit the accounts of such sheriffs for money paid out as such rewards, together with all necessary expenses incurred in the apprehension and detention of any such horse thief or automobile thief, and pay the same out of the treasury of their county.

Source:Laws 1879, § 1, p. 181; R.S.1913, § 8951; Laws 1919, c. 139, § 1, p. 317; C.S.1922, § 9975; C.S.1929, § 29-415; R.S.1943, § 29-415.


29-416. Fresh pursuit; peace officer from another state; authority to make arrest.

Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person, in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody as has any member of any duly organized state, county or municipal peace unit of this state, to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state.

Source:Laws 1937, c. 70, § 1, p. 256; C.S.Supp.,1941, § 29-416; R.S.1943, § 29-416.


Annotations

29-417. Fresh pursuit; procedure after arrest.

If an arrest is made in this state by an officer of another state in accordance with the provisions of section 29-416, he shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the magistrate determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor of this state. If the magistrate determines that the arrest was unlawful he shall discharge the person arrested.

Source:Laws 1937, c. 70, § 2, p. 256; C.S.Supp.,1941, § 29-417; R.S.1943, § 29-417.


Annotations

29-417.01. Fresh pursuit; interstate pursuit; liability; personal jurisdiction.

(1) A member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit under authority of the Uniform Act on Fresh Pursuit shall be jointly and severally liable, along with the state, county, or municipal peace unit employing the member, for death, injury, or property damage to an innocent third party proximately caused by the action of the member during fresh pursuit.

(2) A member of a duly organized state, county, or municipal peace unit of another state of the United States who enters this state in fresh pursuit under authority of the Uniform Act on Fresh Pursuit shall be deemed to have given his or her consent to be subject to the laws of this state, and such action by the member shall constitute sufficient contact with this state for the exercise of personal jurisdiction over such person, with respect to a cause of action regarding death, injury, or property damage to an innocent third party proximately caused by the actions of the member during fresh pursuit.

(3) Any duly organized state, county, or municipal peace unit of another state of the United States that authorizes its members to enter this state during fresh pursuit under authority of the Uniform Act on Fresh Pursuit shall be deemed to have given its consent to be subject to the laws of this state, and such action by the members shall constitute sufficient contact with this state for the exercise of personal jurisdiction over such peace unit, with respect to a cause of action regarding death, injury, or property damage to an innocent third party proximately caused by the actions of such members during fresh pursuit.

Source:Laws 2001, LB 299, § 1.    


29-418. Fresh pursuit; section, how construed.

Section 29-416 shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.

Source:Laws 1937, c. 70, § 3, p. 256; C.S.Supp.,1941, § 29-418; R.S.1943, § 29-418.


29-419. Fresh pursuit; state, defined.

For purposes of the Uniform Act on Fresh Pursuit, the word state shall include the District of Columbia.

Source:Laws 1937, c. 70, § 4, p. 256; C.S.Supp.,1941, § 29-419; R.S.1943, § 29-419; Laws 2001, LB 299, § 2.    


29-420. Fresh pursuit, defined.

For purposes of the Uniform Act on Fresh Pursuit, the term fresh pursuit shall include fresh pursuit as defined by the common law and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It shall also include the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Fresh pursuit shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.

Source:Laws 1937, c. 70, § 5, p. 256; C.S.Supp.,1941, § 29-420; R.S.1943, § 29-420; Laws 2001, LB 299, § 3.    


Annotations

29-421. Act, how cited.

Sections 29-416 to 29-421 shall be known and may be cited as the Uniform Act on Fresh Pursuit.

Source:Laws 1937, c. 70, § 8, p. 257; C.S.Supp.,1941, § 29-423; R.S.1943, § 29-421; Laws 2001, LB 299, § 4.    


29-422. Citation in lieu of arrest; legislative intent.

It is hereby declared to be the policy of the State of Nebraska to issue citations in lieu of arrest or continued custody to the maximum extent consistent with the effective enforcement of the law and the protection of the public. In furtherance of that policy, except as provided in sections 28-311.11, 42-928, and 42-929, any peace officer shall be authorized to issue a citation in lieu of arrest or continued custody for any offense which is a traffic infraction, any other infraction, or a misdemeanor and for any violation of a city or village ordinance. Such authorization shall be carried out in the manner specified in sections 29-422 to 29-429 and 60-684 to 60-686.

Source:Laws 1974, LB 829, § 1;    Laws 1978, LB 808, § 6;    Laws 1985, LB 19, § 2;    Laws 1989, LB 330, § 2;    Laws 1993, LB 370, § 12;    Laws 2017, LB289, § 12.    


29-423. Citation; Supreme Court; prescribe form; contents.

To achieve uniformity, the Supreme Court may prescribe the form of citation. The citation shall include a description of the crime or offense charged, the time and place at which the person cited is to appear, a warning that failure to appear in accordance with the command of the citation is a punishable offense, and such other matter as the court deems appropriate, but shall not include a place for the cited person's social security number. The court may provide that a copy of the citation shall constitute the complaint filed in the trial court.

Source:Laws 1974, LB 829, § 2;    Laws 2002, LB 82, § 11.    


29-424. Citation; contents; procedure; complaint; waiver; use of credit card authorized.

When a citation is used by a peace officer or when a citation is used by an official or inspector pursuant to section 18-1757, he or she shall enter thereon all required information, including the name and address of the cited person, the offense charged, and the time and place the person cited is to appear in court. Unless the person cited requests an earlier date, the time of appearance shall be at least three days after the issuance of the citation. One copy of the citation shall be delivered to the person cited, and a duplicate thereof shall be signed by such person, giving his or her promise to appear at the time and place stated therein. Such person thereupon shall be released from custody. As soon as practicable, the copy signed by the person cited shall be delivered to the prosecuting attorney.

At least twenty-four hours before the time set for the appearance of the cited person, either the prosecuting attorney or other person authorized by law to issue a complaint for the particular offense shall issue and file a complaint charging such person with an offense or such person shall be released from the obligation to appear as specified. A person cited pursuant to sections 29-422 to 29-429 may waive his or her right to trial. The Supreme Court may prescribe uniform rules for such waivers.

Anyone may use a credit card authorized by the court in which the person is cited as a means of payment of his or her fine and costs.

Source:Laws 1974, LB 829, § 3;    Laws 1978, LB 808, § 7;    Laws 1985, LB 19, § 3;    Laws 1985, LB 326, § 3; Laws 1988, LB 370, § 5;    Laws 1998, LB 109, § 2;    Laws 2006, LB 1175, § 4.    


Cross References

Annotations

29-425. Citation; issued, when; service.

Citations may also be issued under the following circumstances:

(1) In any case in which the prosecuting officer is convinced that a citation would serve all of the purposes of an arrest warrant; and

(2) Whenever any complaint or information is filed in any court in this state charging a felony, misdemeanor, infraction, or violation of a city or village ordinance when the court is convinced that a citation would serve all of the purposes of the arrest warrant procedure.

The citations provided for in this section may be served in the same manner as an arrest warrant, in the same manner as a summons in a civil action, or may be served by certified mail.

Source:Laws 1974, LB 829, § 4;    Laws 1978, LB 808, § 8.    


29-426. Citation; failure to appear; penalty.

Any person failing to appear or otherwise comply with the command of a citation shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than three months, or by both such fine and imprisonment.

Source:Laws 1974, LB 829, § 5.    


Cross References

Annotations

29-427. Detention of accused; grounds.

Any peace officer having grounds for making an arrest may take the accused into custody or, already having done so, detain him further when the accused fails to identify himself satisfactorily, or refuses to sign the citation, or when the officer has reasonable grounds to believe that (1) the accused will refuse to respond to the citation, (2) such custody is necessary to protect the accused or others when his continued liberty would constitute a risk of immediate harm, (3) such action is necessary in order to carry out legitimate investigative functions, (4) the accused has no ties to the jurisdiction reasonably sufficient to assure his appearance, or (5) the accused has previously failed to appear in response to a citation.

Source:Laws 1974, LB 829, § 6.    


Annotations

29-428. Sections, how construed.

Nothing in sections 29-422 to 29-429 and 60-684 to 60-686 shall be construed to affect the rights, lawful procedures, or responsibilities of law enforcement agencies or peace officers using the citation procedure in lieu of the arrest or warrant procedure.

Source:Laws 1974, LB 829, § 7;    Laws 1985, LB 19, § 4;    Laws 1993, LB 370, § 13.    


29-429. Citation; cited person to medical facility; when.

Notwithstanding that a citation is issued, a peace officer is authorized to take a cited person to an appropriate medical facility if he appears mentally or physically unable to care for himself.

Source:Laws 1974, LB 829, § 8.    


29-430. Citation; social security number prohibited.

A citation issued by a law enforcement officer shall not contain the cited person's social security number.

Source:Laws 2002, LB 82, § 1.    


29-431. Infraction, defined.

As used in sections 28-416, 29-422, 29-424, 29-425, 29-431 to 29-434, 48-1231, and 53-173, unless the context otherwise requires, infraction means the violation of any law, ordinance, order, rule, or regulation, not including those related to traffic, which is not otherwise declared to be a misdemeanor or a felony. Infraction includes violations of section 60-6,267 and beginning January 1, 2024, section 60-6,279.

Source:Laws 1978, LB 808, § 1;    Laws 1979, LB 534, § 1;    Laws 1983, LB 306, § 1;    Laws 1993, LB 370, § 14;    Laws 2010, LB884, § 1;    Laws 2015, LB330, § 1;    Laws 2023, LB138, § 3.    


Cross References

29-432. Infraction; person alleged to have committed; custody; when.

Any peace officer may take a person alleged to have committed an infraction into custody if harm is likely to occur to either the individual or society if such person is not taken into custody.

Source:Laws 1978, LB 808, § 3.    


29-433. Infraction involving controlled substance; person cited for; course of instruction; requirements.

A person cited for an infraction pursuant to section 28-416 shall be assigned to attend a course of instruction relating to the effects of the misuse of drugs, including alcohol and controlled substances. Such instruction shall include counseling on the legal, medical, psychological, and social effects of drug use and abuse. Such course shall consist of a minimum of five hours and a maximum of ten hours of instruction and counseling. Upon completion of the assigned course the instructor shall notify the court in writing of such completion and the notification shall be made a part of the record of the citation. Any person failing to complete such course within thirty days after the assignment shall be guilty of an infraction.

Source:Laws 1978, LB 808, § 4.    


29-434. Drug treatment centers; provide course of instruction.

All drug treatment centers shall provide the necessary facilities and programs to carry out the provisions of section 29-433.

Source:Laws 1978, LB 808, § 5;    Laws 2004, LB 1083, § 87.    


29-435. Infraction; citation issued in lieu of arrest; exception.

Except as provided in section 29-427, for any offense classified as an infraction, a citation shall be issued in lieu of arrest or continued custody pursuant to sections 29-422 to 29-429.

Source:Laws 1979, LB 534, § 2;    Laws 1985, LB 19, § 5.    


Annotations

29-436. Infraction, penalties.

Any person guilty of an infraction when a penalty is not otherwise specified shall: (1) For the first offense be fined not more than one hundred dollars; (2) upon a second conviction for the same infraction within a two-year period be fined not less than one hundred dollars and not more than three hundred dollars; and (3) upon a third or subsequent conviction for the same infraction within a two-year period be fined not less than two hundred dollars and not more than five hundred dollars.

Source:Laws 1979, LB 534, § 3.    


29-437. Infraction; trial without a jury; constitutional rights.

The trial of any person for an infraction shall be by the court without a jury. All other rights provided by the Constitution of the United States made applicable to the states by the Fourteenth Amendment to the Constitution of the United States and the Constitution of the State of Nebraska shall apply to persons charged with an infraction.

Source:Laws 1979, LB 534, § 4.    


29-438. Infraction; treated as first offense; when.

Any person charged with commission of an infraction which was committed more than two years after such person's last conviction for the same infraction shall be charged as though the most recent infraction was a first offense.

Source:Laws 1979, LB 534, § 5.    


29-439. Domestic assault; arrest; conditions; report required.

(1) If a peace officer receives complaints under section 28-323 from two or more opposing persons, the officer shall evaluate each complaint separately to determine who was the predominant aggressor. If the officer determines that one person was the predominant aggressor, the officer need not arrest the other person believed to have committed an offense. In determining whether a person is the predominant aggressor, the officer shall consider, among other things:

(a) Prior complaints under section 28-323;

(b) The relative severity of the injuries inflicted on each person;

(c) The likelihood of future injury to each person; and

(d) Whether one of the persons acted with a justified use of force under sections 28-1406 to 28-1416.

(2) In addition to any other report required, a peace officer who arrests two or more persons with respect to such a complaint shall submit a detailed, written report setting forth the grounds for arresting multiple parties.

Source:Laws 2004, LB 613, § 7.    


29-440. Domestic assault; weapons; seizure and disposition.

(1) Incident to an arrest under section 28-323, a peace officer:

(a) Shall seize all weapons that are alleged to have been involved or threatened to be used; and

(b) May seize any firearm and ammunition in the plain view of the officer or that is discovered pursuant to a search authorized or consented to by the person being searched or in charge of the premises being searched, as necessary for the protection of the officer or any other person.

(2) Weapons seized under this section shall be stored according to the policies and procedures implemented by the seizing law enforcement agency.

(3) Disposition of weapons under this section shall be determined by court order.

Source:Laws 2004, LB 613, § 8.    


29-501. Repealed. Laws 2007, LB 214, § 5.

29-502. Repealed. Laws 2007, LB 214, § 5.

29-503. Repealed. Laws 2007, LB 214, § 5.

29-504. Felony; speedy preliminary hearing required.

When the complaint is for a felony, upon the accused being brought before the magistrate, he shall proceed as soon as may be, in the presence of the accused, to inquire into the complaint.

Source:G.S.1873, c. 58, § 300, p. 793; R.S.1913, § 8955; C.S.1922, § 9979; Laws 1925, c. 101, § 1, p. 290; C.S.1929, § 29-504; R.S.1943, § 29-504; Laws 1972, LB 1032, § 168;    Laws 1973, LB 226, § 16.    


Annotations

29-505. Witnesses; preliminary hearing; segregation.

The magistrate, if requested, or if he sees good cause therefor, shall order that the witnesses on both sides be examined each one separate from all the others, and that the witnesses for may be kept separate from the witnesses against the accused during the examination.

Source:G.S.1873, c. 58, § 301, p. 793; R.S.1913, § 8956; C.S.1922, § 9980; C.S.1929, § 29-505; R.S.1943, § 29-505.


Annotations

29-506. Probable cause finding; effect; accused to be committed or released on bail; conditions; appearance bond.

If upon the whole examination, it shall appear that no offense has been committed or that there is no probable cause for holding the accused to answer for the offense, he shall be discharged; but if it shall appear that an offense has been committed and there is probable cause to believe that the person charged has committed the offense, the accused shall be committed to the jail of the county in which the same is to be tried, there to remain until he is discharged by due course of law; Provided, if the offense be bailable, the accused may be released pursuant to Chapter 29, article 9, such release to be conditioned on his appearance before the district court as ordered. When a defendant has executed an appearance bond and made a deposit with the court pursuant to section 29-901, and such appearance bond is continued in force for the defendant's appearance in district court, the appearance bond costs shall be retained by the examining court, and the appearance bond and the balance of the deposit shall be transmitted to the district court.

Source:G.S.1873, c. 58, §§ 302, 303, p. 793; Laws 1905, c. 206, § 1, p. 699; R.S.1913, § 8957; Laws 1915, c. 162, § 1, p. 333; C.S.1922, § 9981; C.S.1929, § 29-506; R.S.1943, § 29-506; Laws 1975, LB 284, § 1.    


Cross References

Annotations

29-507. Felony; witness; release from custody; conditions.

A witness against a person accused of a felony shall be ordered released from custody unless the court determines in the exercise of discretion that such release will not reasonably assure that the witness will appear and testify at the trial as required. When a determination to release the witness from custody is made, the court may impose any of the following conditions of release which will reasonably assure the appearance of the witness for trial or, if no single condition gives that assurance, any combination of the following conditions:

(1) Place the witness in the custody of a designated person or organization agreeing to supervise him or her;

(2) Place restrictions on the travel, association, or place of abode of the witness during the period of such release;

(3) Require, at the option of any witness, either of the following:

(a) The execution of an appearance bond in a specified amount and the deposit with the clerk of the court in cash of a sum not to exceed ten percent of the amount of the bond, one hundred percent of such deposit to be returned to the witness upon the performance of the appearance or appearances; or

(b) The execution of a bail bond with such surety or sureties as the court shall deem proper or, in lieu of such surety or sureties, at the option of such witness, a cash deposit of the sum so fixed, conditioned upon his or her appearance before the proper court as a witness, and to appear at such times thereafter as may be ordered by the proper court. If the amount of bail is deemed insufficient by the court before whom the offense is pending, such court may order an increase of such bail and the witness must provide the additional undertaking, written or cash, to secure his or her release. All recognizances shall be in writing and be continuous from term to term until final judgment of the court in the case. Each surety on such recognizance shall be required to justify under oath in a sum twice the amount of such recognizance and give the description of real estate owned by him or her of a value, above encumbrance, equal to the amount of such justification, and shall name all other cases pending in which he or she is a surety. No one shall be accepted as surety on recognizance aggregating a sum in excess of his or her equity in his or her real estate, but such recognizance shall not constitute a lien on such real estate until judgment is entered thereon against such surety; or

(4) Impose any other condition deemed reasonably necessary to assure appearances as required, including a condition requiring that the witness return to custody after specified hours.

Source:G.S.1873, c. 58, § 304, p. 793; R.S.1913, § 8958; C.S.1922, § 9982; C.S.1929, § 29-507; R.S.1943, § 29-507; Laws 1981, LB 228, § 1.    


Annotations

29-508. Refusal of witness to enter into recognizance or accept conditions; effect.

If any witness required to enter into a recognizance or accept specified conditions for release under section 29-507 refuses to comply with such order, the court shall, subject to the conditions and procedure provided in section 29-508.01, commit him or her to jail until he or she complies with such order or is otherwise discharged according to law.

Source:G.S.1873, c. 58, § 305, p. 793; R.S.1913, § 8959; C.S.1922, § 9983; C.S.1929, § 29-508; R.S.1943, § 29-508; Laws 1981, LB 228, § 2.    


29-508.01. Witness committed to jail; prerequisites; rights; appeal.

Before a witness is committed to jail under subdivision (4) of section 29-507 or 29-508, he or she shall:

(1) Receive written notice of the allegations upon which the state relied for its claim of a right to require a recognizance or detention and of the time and place of the hearing on those allegations;

(2) Have a hearing before a judge;

(3) Have the evidence in support of the state's claim disclosed to him or her at a hearing;

(4) Have an opportunity to be heard in person and to present witnesses and documentary evidence;

(5) Have, to the extent practicable, the right to confront and cross-examine witnesses;

(6) Have the right to counsel; and

(7) Be given a written statement by the decisionmaker as to the evidence relied upon and the reasons for the decision made.

A decision to commit a person to jail may be appealed and shall be given priority on the appellate court's calendar.

Source:Laws 1981, LB 228, § 3.    


29-508.02. Witness committed to jail; receive witness fee.

A witness committed to jail under subdivision (4) of section 29-507 or 29-508 shall, in addition to the fee provided under section 33-139, receive an amount equal to the amount a witness receives under section 29-1908 for each day held in custody.

Source:Laws 1981, LB 228, § 4.    


Cross References

29-509. Docket; required; record of recognizances; transcript.

It shall be the duty of every magistrate in criminal proceedings to keep a docket thereof as in civil cases. All recognizances taken under section 29-506 or 29-507, together with a transcript of the proceedings, where the defendant is held to answer, shall be certified and returned forthwith to the clerk of the court at which the prisoner is to appear. The transcript shall contain an accurate bill of all the costs that have accrued, and the items composing the same.

Source:G.S.1873, c. 58, § 306, p. 794; R.S.1913, § 8960; C.S.1922, § 9984; C.S.1929, § 29-509; R.S.1943, § 29-509; Laws 2007, LB214, § 3.    


Annotations

29-510. Finding; offense of a higher grade committed than that charged; power of magistrate.

If upon the examination it shall appear to the magistrate that the accused has committed an offense of a higher grade than that charged, he may be held to answer therefor.

Source:G.S.1873, c. 58, § 309, p. 794; R.S.1913, § 8961; C.S.1922, § 9985; C.S.1929, § 29-510; R.S.1943, § 29-510.


29-511. Repealed. Laws 1987, LB 665, § 3.

29-512. Repealed. Laws 1987, LB 665, § 3.

29-513. Repealed. Laws 1953, c. 89, § 1.

29-601. Repealed. Laws 1972, LB 1032, § 287.

29-602. Repealed. Laws 1972, LB 1032, § 287.

29-603. Repealed. Laws 1972, LB 1032, § 287.

29-604. Repealed. Laws 1972, LB 1032, § 287.

29-605. Repealed. Laws 1972, LB 1032, § 287.

29-606. Repealed. Laws 1972, LB 1032, § 287.

29-607. Repealed. Laws 1972, LB 1032, § 287.

29-608. Repealed. Laws 1972, LB 1032, § 287.

29-609. Repealed. Laws 1972, LB 1032, § 287.

29-610. Repealed. Laws 1972, LB 1032, § 287.

29-610.01. Subpoena; witness; service; failure to appear; contempt of court.

In criminal misdemeanor cases the clerk may issue writs of subpoena to the witness named therein by mailing it to such person by certified mail to the last-known residence of such person or, if such address is unknown, to the last-known business address of such person. The person making such service shall make a return thereof showing the manner and proof of service. If any such witness shall fail to appear at the time and place required by the subpoena, such witness may be deemed to be in contempt of court upon a showing of actual notice.

Source:Laws 1974, LB 684, § 1.    


29-610.02. Subpoena; witness; failure to appear; penalty.

Contempt of court under section 29-610.01 shall be punished by a fine of not less than ten dollars nor more than five hundred dollars or by imprisonment in the county jail not exceeding thirty days, or by both such fine and imprisonment.

Source:Laws 1974, LB 684, § 2.    


29-611. Appeal; procedure.

The defendant shall have the right of appeal from any judgment of a county court pursuant to sections 25-2728 to 25-2737.

Source:G.S.1873, c. 58, § 324, p. 797; R.S.1913, § 8975; C.S.1922, § 9999; Laws 1923, c. 113, § 1, p. 271; C.S.1929, § 29-611; Laws 1937, c. 66, § 1, p. 249; C.S.Supp.,1941, § 29-611; R.S.1943, § 29-611; Laws 1972, LB 1032, § 169;    Laws 1973, LB 6, § 2;    Laws 1984, LB 13, § 52;    Laws 1986, LB 529, § 29.    


29-612. Repealed. Laws 1986, LB 529, § 58.

29-613. Repealed. Laws 1986, LB 529, § 58.

29-614. Repealed. Laws 1986, LB 529, § 58.

29-615. Offenses not cognizable by county court; procedure.

If in the progress of any trial before a county court it shall appear that the defendant ought to be put upon his or her trial for an offense not cognizable before such court, the court shall immediately stop all further proceedings before the court and proceed as in other criminal cases exclusively cognizable before the district court.

Source:G.S.1873, c. 58, § 327, p. 798; R.S.1913, § 8979; C.S.1922, § 10003; C.S.1929, § 29-615; R.S.1943, § 29-615; Laws 1972, LB 1032, § 172;    Laws 1984, LB 13, § 55.    


Annotations

29-616. Repealed. Laws 1973, LB 226, § 34.

29-617. Repealed. Laws 1972, LB 1032, § 287.

29-618. Repealed. Laws 1972, LB 1032, § 287.

29-619. Repealed. Laws 1972, LB 1032, § 287.

29-620. Repealed. Laws 1972, LB 1032, § 287.

29-621. Repealed. Laws 1972, LB 1032, § 287.

29-622. Repealed. Laws 1972, LB 1032, § 287.

29-623. Repealed. Laws 1972, LB 1032, § 287.

29-701. Repealed. Laws 1963, c. 159, § 31.

29-702. Repealed. Laws 1963, c. 159, § 31.

29-703. Repealed. Laws 1963, c. 159, § 31.

29-704. Repealed. Laws 1963, c. 159, § 31.

29-705. Repealed. Laws 1963, c. 159, § 31.

29-706. Repealed. Laws 1963, c. 159, § 31.

29-707. Repealed. Laws 1963, c. 159, § 31.

29-708. Repealed. Laws 1963, c. 159, § 31.

29-709. Repealed. Laws 1963, c. 159, § 31.

29-710. Repealed. Laws 1963, c. 159, § 31.

29-711. Repealed. Laws 1963, c. 159, § 31.

29-712. Repealed. Laws 1963, c. 159, § 31.

29-713. Repealed. Laws 1963, c. 159, § 31.

29-714. Repealed. Laws 1963, c. 159, § 31.

29-715. Repealed. Laws 1963, c. 159, § 31.

29-716. Repealed. Laws 1963, c. 159, § 31.

29-717. Repealed. Laws 1963, c. 159, § 31.

29-718. Repealed. Laws 1963, c. 159, § 31.

29-719. Repealed. Laws 1963, c. 159, § 31.

29-720. Repealed. Laws 1963, c. 159, § 31.

29-721. Repealed. Laws 1963, c. 159, § 31.

29-722. Repealed. Laws 1963, c. 159, § 31.

29-723. Repealed. Laws 1963, c. 159, § 31.

29-724. Repealed. Laws 1963, c. 159, § 31.

29-725. Repealed. Laws 1963, c. 159, § 31.

29-726. Repealed. Laws 1963, c. 159, § 31.

29-727. Repealed. Laws 1963, c. 159, § 31.

29-728. Repealed. Laws 1963, c. 159, § 31.

29-729. Terms, defined.

Where appearing in sections 29-729 to 29-758, the term Governor includes any person performing the functions of Governor by authority of the law of this state. The term Executive Authority includes the Governor, and any person performing the functions of Governor in a state other than this state, and the term State, referring to a state other than this state, includes any other state or territory, organized or unorganized, of the United States of America.

Source:Laws 1963, c. 159, § 1, p. 558.


Annotations

29-730. Fugitives from justice; Governor; duty.

Subject to the provisions of sections 29-729 to 29-758, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this state to have arrested and delivered up to the Executive Authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.

Source:Laws 1963, c. 159, § 2, p. 559.


Annotations

29-731. Form of demand.

No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under section 29-734, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand.

Source:Laws 1963, c. 159, § 3, p. 559.


Annotations

29-732. Governor; order investigation.

When a demand shall be made upon the Governor of this state by the Executive Authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.

Source:Laws 1963, c. 159, § 4, p. 559.


29-733. Persons imprisoned or waiting trial out of state; left the demanding state involuntarily; extradition.

When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor of this state may agree with the Executive Authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.

The Governor of this state may also surrender on demand of the Executive Authority of any other state any person in this state who is charged in the manner provided in section 29-751 with having violated the laws of the state whose Executive Authority is making the demand, even though such person left the demanding state involuntarily.

Source:Laws 1963, c. 159, § 5, p. 560.


29-734. Persons not present in demanding state at time of commission of crime; extradition.

The Governor of this state may also surrender, on demand of the Executive Authority of any other state, any person in this state charged in such other state in the manner provided in section 29-731 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose Executive Authority is making the demand, and the provisions of sections 29-729 to 29-758 not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.

Source:Laws 1963, c. 159, § 6, p. 560.


Annotations

29-735. Warrant of arrest; issuance.

If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.

Source:Laws 1963, c. 159, § 7, p. 560.


29-736. Warrant of arrest; execution.

Such warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provisions of sections 29-729 to 29-758 to the duly authorized agent of the demanding state.

Source:Laws 1963, c. 159, § 8, p. 561.


29-737. Arresting officer; authority.

Every such peace officer or other person empowered to make the arrest shall have the same authority, in arresting the accused, to command assistance therein, as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.

Source:Laws 1963, c. 159, § 9, p. 561.


29-738. Rights of accused person; writ of habeas corpus; application.

No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.

Source:Laws 1963, c. 159, § 10, p. 561.


Cross References

Annotations

29-739. Rights of accused person; violation; penalty.

Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor's warrant, in willful disobedience to section 29-738, shall be guilty of a Class II misdemeanor.

Source:Laws 1963, c. 159, § 11, p. 561; Laws 1977, LB 40, § 112.    


29-740. Confinement; when necessary; requirements.

The officer or persons executing the Governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping.

The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this state with such prisoner for the purpose of immediately returning such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, such officer or agent, however, being chargeable with the expense of keeping; Provided however, that such officer or agent shall produce and show to the keeper of such jail satisfactory written evidence of the fact that he is actually transporting such prisoner to the demanding state after a requisition by the Executive Authority of such demanding state. Such prisoner shall not be entitled to demand a new requisition while in this state.

Source:Laws 1963, c. 159, § 12, p. 562.


29-741. Warrant of arrest; issuance prior to requisition; grounds.

Whenever any person within this state shall be charged on the oath of any credible person before any judge or magistrate of this state with the commission of any crime in any other state and, except in cases arising under section 29-734, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole, or whenever complaint shall have been made before any judge or magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under section 29-734, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole and is believed to be in this state, the judge or magistrate shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the same or any other judge, magistrate or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

Source:Laws 1963, c. 159, § 13, p. 562.


Annotations

29-742. Arrest without warrant by officer or citizen; when.

The arrest of a person may be lawfully made also by any peace officer or a private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in section 29-741; and thereafter his answer shall be heard as if he had been arrested on a warrant.

Source:Laws 1963, c. 159, § 14, p. 563.


29-743. Commitment to await requisition; bail.

If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under section 29-734, that he has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, commit him to the county jail for such a time not exceeding thirty days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the Executive Authority of the state having jurisdiction of the offense, unless the accused give bail as provided in section 29-744, or until he shall be legally discharged.

Source:Laws 1963, c. 159, § 15, p. 563.


Annotations

29-744. Bail; bond; conditions.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the Governor of this state.

Source:Laws 1963, c. 159, § 16, p. 564.


29-745. Commitment; discharge, recommitment, or bail.

If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or may recommit him for a further period not to exceed sixty days, or a judge or magistrate judge may again take bail for his appearance and surrender, as provided in section 29-744, but within a period not to exceed sixty days after the date of such new bond.

Source:Laws 1963, c. 159, § 17, p. 564.


Annotations

29-746. Bail; forfeiture; effect.

If the prisoner is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond, the judge, or magistrate by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this state. Recovery may be had on such bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.

Source:Laws 1963, c. 159, § 18, p. 564.


29-747. Persons under criminal prosecution in this state at time of requisition; Governor; discretionary powers.

If a criminal prosecution has been instituted against such person under the laws of this state and is still pending the Governor, in his discretion, either may surrender him on demand of the Executive Authority of another state or hold him until he has been tried and discharged or convicted and punished in this state.

Source:Laws 1963, c. 159, § 19, p. 564.


29-748. Guilt or innocence of accused; inquiry; when.

The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.

Source:Laws 1963, c. 159, § 20, p. 565.


29-749. Warrant of arrest; recall; issuance.

The Governor may recall his warrant of arrest or may issue another warrant whenever he deems proper.

Source:Laws 1963, c. 159, § 21, p. 565.


29-750. Fugitives from this state; warrant; Governor's duty.

Whenever the Governor of this state shall demand a person charged with crime or with escaping from confinement or breaking the terms of his bail, probation or parole in this state, from the Executive Authority of any other state, or from the Chief Justice or an Associate Justice of the Supreme Court of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of this state, to some agent, commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county in this state in which the offense was committed.

Source:Laws 1963, c. 159, § 22, p. 565.


29-751. Fugitives from this state; requisition; application; contents; filing.

(1) When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the Governor a written application for a requisition for the return of the person charged in which application shall be stated the name of the person so charged, the crime charged against him or her, the approximate time, place, and circumstances of its commission, the state in which he or she is believed to be, including the location of the accused therein at the time the application is made and certifying that, in the opinion of the said prosecuting attorney the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.

(2) When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of his or her bail, probation, or parole, the prosecuting attorney of the county in which the offense was committed, the parole board, or, if the escape was from an institution of the Department of Correctional Services, the Director of Correctional Services, or sheriff of the county from which escape was made, shall present to the Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he or she was convicted, the circumstances of the escape from confinement or of the breach of the terms of bail, probation, or parole, the state in which he or she is believed to be, including the location of the person therein at the time application is made.

(3) The application shall be verified by affidavit, shall be executed in duplicate, and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or magistrate, stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The prosecuting officer, parole board, director, or sheriff may also attach such further affidavits and other documents in duplicate as he or she shall deem proper to be submitted with such application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the Secretary of State to remain of record in that office. The other copies of all papers shall be forwarded with the Governor's requisition.

Source:Laws 1963, c. 159, § 23, p. 565; Laws 1980, LB 697, § 1.


29-752. Costs; expenses; payment.

When the punishment of the crime is the confinement of the criminal in a Department of Correctional Services adult correctional facility, the expenses shall be paid out of the state treasury on the certificate of the Governor and warrant of the State Treasurer and Director of Administrative Services. In all other cases the expenses shall be paid out of the county treasury in the county wherein the crime is alleged to have been committed. The expenses shall be the fees paid to the officers of the state on whose Governor the requisition is made and shall be equal to the mileage rate authorized in section 81-1176 for each mile which is necessary to travel in returning such prisoner.

Source:Laws 1963, c. 159, § 24, p. 566; Laws 1981, LB 204, § 39;    Laws 1993, LB 31, § 5;    Laws 2000, LB 692, § 8.    


Annotations

29-753. Extradition; civil action; immunity from service of process in certain cases.

A person brought into this state by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.

Source:Laws 1963, c. 159, § 25, p. 567.


29-754. Extradition proceedings; written waiver; procedure.

Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in sections 29-735 and 29-736 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state; Provided however, that before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in section 29-738.

If and when such consent has been duly executed it shall forthwith be forwarded to the office of the Governor of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent; Provided however, that nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state.

Source:Laws 1963, c. 159, § 26, p. 567.


29-755. Nonwaiver by this state.

Nothing in sections 29-729 to 29-758 contained shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for crime committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under sections 29-729 to 29-758 which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.

Source:Laws 1963, c. 159, § 27, p. 568.


29-756. Extradition; other criminal prosecutions; no right of asylum or immunity.

After a person has been brought back to this state by, or after waiver of extradition proceedings, he may be tried in this state for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.

Source:Laws 1963, c. 159, § 28, p. 568.


Annotations

29-757. Sections, how construed.

The provisions of sections 29-729 to 29-758 shall be so interpreted and construed as to effectuate their general purposes to make uniform the law of those states which enact them.

Source:Laws 1963, c. 159, § 29, p. 568.


29-758. Act, how cited.

Sections 29-729 to 29-758 may be cited as the Uniform Criminal Extradition Act.

Source:Laws 1963, c. 159, § 30, p. 568.


29-759. Text of agreement.

The Agreement on Detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:

"TEXT OF THE AGREEMENT ON DETAINERS

The contracting states solemnly agree that:

Article I

The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

Article II

As used in this agreement:

(a) State shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.

(b) Sending state shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to Article III hereof or at the time that a request for custody or availability is initiated pursuant to Article IV hereof.

(c) Receiving state shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof.

Article III

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; Provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.

(c) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.

(d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner's request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner's written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

(e) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.

(f) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph (a) hereof shall void the request.

Article IV

(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; Provided, that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request; and provided further, that there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.

(b) Upon receipt of the officer's written request as provided in paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.

(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

(d) Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.

(e) If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Article V

(a) In response to a request made under Article III or Article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in Article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner's presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.

(b) The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:

(1) Proper identification and evidence of his authority to act for the state into whose temporary custody the prisoner is to be given.

(2) A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.

(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

(d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.

(e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.

(f) During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.

(g) For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.

(h) From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor. The costs contemplated by this section which must be paid by the State of Nebraska or the appropriate political subdivision thereof shall be paid in the same manner and extent and from the same funds which would have been used in the case of extradition of a prisoner from another state.

Article VI

(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

(b) No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.

Article VII

Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.

Article VIII

This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.

Article IX

This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters."

Source:Laws 1963, c. 154, § 1, p. 543.


Annotations

29-760. Appropriate court, defined.

The phrase appropriate court as used in the Agreement on Detainers shall, with reference to the courts of this state, mean any court with criminal jurisdiction in the matter involved.

Source:Laws 1963, c. 154, § 2, p. 551.


29-761. Enforcement of agreement.

All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the Agreement on Detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.

Source:Laws 1963, c. 154, § 3, p. 551.


29-762. Escape from custody; penalty.

Escape from custody while in another state pursuant to the Agreement on Detainers shall constitute an offense against the laws of this state to the same extent and degree as an escape from the institution in which the prisoner was confined immediately prior to having been sent to another state pursuant to the provisions of the Agreement on Detainers and shall be punishable in the same manner as an escape from said institution.

Source:Laws 1963, c. 154, § 4, p. 551.


29-763. Official in charge of penal or correctional institution; duties.

It shall be lawful and mandatory upon the warden or other official in charge of a penal or correctional institution in this state to give over the person of any inmate thereof whenever so required by the operation of the Agreement on Detainers.

Source:Laws 1963, c. 154, § 5, p. 552.


29-764. Central administrator; appointment; powers.

Pursuant to said agreement, the Governor is hereby authorized and empowered to designate an officer or alternate who shall be the central administrator of and the information agent for the Agreement on Detainers and who, acting jointly with like officers of other party states, shall have power to formulate rules and regulations to carry out more effectively the terms of the agreement, and shall serve subject to the pleasure of the Governor.

Source:Laws 1963, c. 154, § 6, p. 552.


29-765. Copies of sections; distribution.

Copies of sections 29-759 to 29-765 shall, upon its approval, be transmitted by the Secretary of State to the Governor of each state, the Attorney General and the administrator of general services of the United States, and the Council of State Governments.

Source:Laws 1963, c. 154, § 7, p. 552.


29-801. Repealed. Laws 1963, c. 161, § 12.

29-802. Repealed. Laws 1963, c. 161, § 12.

29-803. Repealed. Laws 1963, c. 161, § 12.

29-804. Repealed. Laws 1963, c. 161, § 12.

29-805. Repealed. Laws 1963, c. 161, § 12.

29-806. Repealed. Laws 1963, c. 161, § 12.

29-807. Repealed. Laws 1963, c. 161, § 12.

29-808. Repealed. Laws 1963, c. 161, § 12.

29-809. Repealed. Laws 1963, c. 161, § 12.

29-810. Repealed. Laws 1963, c. 161, § 12.

29-811. Repealed. Laws 1963, c. 161, § 12.

29-812. Search warrant; issuance.

A search warrant authorized by sections 29-812 to 29-821 may be issued by any judge of the county court, district court, Court of Appeals, or Supreme Court for execution anywhere within the State of Nebraska or for service upon any publicly or privately held corporation, partnership, or other legal entity located within or outside the State of Nebraska. A similar search warrant authorized by such sections may be issued, subject to section 24-519, by any clerk magistrate within the county in which the property sought is located.

Source:Laws 1963, c. 161, § 1, p. 570; Laws 1973, LB 226, § 17;    Laws 1974, LB 735, § 2;    Laws 1982, LB 928, § 24; Laws 1984, LB 13, § 56;    Laws 1986, LB 529, § 30;    Laws 1991, LB 732, § 72; Laws 1992, LB 1059, § 22; Laws 2006, LB 1115, § 19;    Laws 2015, LB294, § 13.    


Cross References

Annotations

29-813. Search warrant; issuance; limitation; terms, defined.

(1) A warrant may be issued under sections 29-812 to 29-821 to search for and seize any property (a) stolen, embezzled, or obtained under false pretenses in violation of the laws of the State of Nebraska, (b) designed or intended for use or which is or has been used as the means of committing a criminal offense, (c) possessed, controlled, designed, or intended for use or which is or has been possessed, controlled, designed, or used in violation of any law of the State of Nebraska making such possession, control, design, or use, or intent to use, a criminal offense, or (d) which constitutes evidence that a criminal offense has been committed or that a particular person has committed a criminal offense.

(2) Notwithstanding subsection (1) of this section, no warrant shall be issued to search any place or seize anything in the possession, custody, or control of any person engaged in procuring, gathering, writing, editing, or disseminating news or other information for distribution to the public through a medium of communication unless probable cause is shown that such person has committed or is committing a criminal offense. For purposes of this subsection, the terms person, information, and medium of communication shall be defined as provided in section 20-145.

Source:Laws 1963, c. 161, § 2, p. 571; Laws 1979, LB 107, § 1.    


Annotations

29-814. Repealed. Laws 1980, LB 731, § 7.

29-814.01. Search warrant; issuance on affidavit; procedure.

A search warrant may be issued under section 29-814.04 pursuant to written affidavit sworn to before a magistrate, a judge, or any other person authorized to administer oaths under the laws of this state by the person making it. Such affidavit shall particularly describe the persons or places to be searched and the persons or property to be seized. Such affidavit shall set forth the facts and circumstances tending to show that such person or property is in the place, or the property is in the possession of the person, to be searched. Such affidavit may be submitted to the magistrate or judge in person or by facsimile or other electronic means and the warrant may be issued to the affiant in person or by facsimile or other electronic means.

Source:Laws 1980, LB 731, § 1; Laws 2006, LB 1115, § 20.    


Annotations

29-814.02. Search warrant; issuance on oral statement; procedure.

In lieu of, or in addition to, written affidavit, a search warrant may be issued under section 29-814.04 pursuant to an oral statement given in person and under oath to a magistrate or judge. The oral statement shall be taken by means of a voice recording device in the custody of the magistrate or judge. If no voice recording device is available, the statement may be taken stenographically. The magistrate or judge shall direct that the recorded or stenographic statement be transcribed and the magistrate or judge shall certify the accuracy of the transcription. The magistrate or judge shall file with the clerk of the district court of the county in which the property was seized the original of the record and the transcribed statement. Such filing shall be made at the same time the warrant, copy of the return, inventory, and all other papers connected with the warrant are filed pursuant to section 29-816. For purposes of sections 29-814.01 to 29-814.06, an oral statement authorized by this section shall be considered to be an affidavit.

Source:Laws 1980, LB 731, § 2.


Annotations

29-814.03. Search warrant; issuance on telephonic statement; procedure.

A search warrant may be issued under section 29-814.05 pursuant to a telephonic statement made to a magistrate or judge in accordance with the procedures set forth in this section. Prior to telephonically contacting a magistrate or judge, the law enforcement officer requesting the warrant shall contact the county attorney or a deputy county attorney of the county in which the warrant is to be issued for purposes of explaining the reasons why a search warrant should be issued pursuant to a telephonic statement. If the county attorney or deputy county attorney is satisfied that a warrant is justified, and that circumstances justify its immediate issuance, the county attorney or deputy county attorney shall contact the magistrate or judge and state that he or she is convinced that a warrant should be issued by telephone. The county attorney or deputy county attorney shall provide the magistrate or judge with a telephone number at which the officer requesting the warrant may be contacted. The magistrate or judge shall call the officer at the number provided and shall place the officer under oath and take his or her statement. The statement shall be taken by means of a voice recording device in the custody of the magistrate or judge. The magistrate or judge shall direct that the recorded statement be transcribed and the magistrate or judge shall certify the accuracy of the transcription. The magistrate or judge shall file with the clerk of the district court of the county in which the property was seized the original of the recording and the transcribed statement. Such filing shall be made at the same time the warrant, copy of the return, inventory, and all other papers connected with the warrant are filed pursuant to section 29-816. For purposes of sections 29-814.01 to 29-814.06, a telephonic statement authorized by this section shall be considered to be an affidavit.

Source:Laws 1980, LB 731, § 3.


29-814.04. Search warrant; issuance on written affidavit or oral statement; contents; restriction.

If the magistrate or judge is satisfied that probable cause exists for the issuance of a search warrant, as a result of written affidavit or oral statement authorized pursuant to sections 29-814.01 and 29-814.02, the magistrate or judge shall issue the warrant which shall identify the person or place to be searched and the person or property to be seized. The warrant shall be directed to a law enforcement officer of the State of Nebraska or one of its governmental subdivisions, which officer shall be specifically named or described by the title of his or her office in the warrant. The warrant shall state whether the grounds or proper cause of its issuance is a written affidavit, an oral statement, or a combination of both. The warrant shall indicate the name or names of the person or persons whose affidavit or statement has been taken in support thereof. The warrant shall command the officer named in the warrant to search the person or place named for the purpose specified. The warrant shall direct that it be served in the daytime unless the magistrate or judge is satisfied that the public interest requires that it should not be so restricted, in which case the warrant may direct that it may be served at any time. The warrant shall designate the magistrate or judge to whom it shall be returned. For purposes of this section, daytime shall mean the hours from 7 a.m. to 8 p.m. according to local time.

Source:Laws 1980, LB 731, § 4; Laws 1989, LB 267, § 1.    


Annotations

29-814.05. Search warrant; issuance on telephonic statement; duplicate original; contents; procedure.

(1) If the magistrate or judge is satisfied that probable cause exists for the issuance of a search warrant, as the result of a telephonic statement taken under section 29-814.03, and if the magistrate or judge is further satisfied that sufficient reason exists to issue such warrant by telephone, the magistrate or judge shall authorize the officer requesting the warrant to complete a duplicate original warrant which shall contain a description of the person or place to be searched, a description of the person or property to be seized, a command to the officer to conduct the search for the purposes specified, the date and time of issuance, a statement that the grounds or proper cause for its issuance is by telephonic statement, the name or names of the person or persons whose statement has been taken in support of the warrant, and the name of the judge to whom it is to be returned. The magistrate or judge shall authorize the officer to sign his or her name to the duplicate original warrant and to also sign the name of the officer thereto. A duplicate original warrant shall be deemed to be a search warrant for purposes of Chapter 29, article 8.

(2) At the time the magistrate or judge authorizes the officer to complete the duplicate original warrant under subsection (1) of this section, the magistrate or judge shall immediately complete and sign the original warrant which shall contain the information which is required for a duplicate original warrant under subsection (1) of this section. The magistrate or judge shall also enter on the face of the original warrant the exact time when the warrant was ordered to be issued.

(3) The duplicate original warrant shall be returned according to section 29-815. Upon the duplicate original warrant being returned, the magistrate or judge shall sign it and shall file it, together with the original warrant, in the same manner as that required under section 29-816.

(4) A search warrant issued pursuant to a telephonic statement shall be invalid unless the duplicate original warrant is signed by the issuing magistrate or judge pursuant to subsection (3) of this section.

(5) A search warrant issued under this section may be executed immediately upon issuance.

Source:Laws 1980, LB 731, § 5.


29-814.06. Search warrant; issuance; original statement lost, destroyed, or unintelligible; effect.

If the original of the oral or telephonic statement, taken pursuant to section 29-814.02 or 29-814.03, shall be lost, destroyed, or a critical portion thereof is unintelligible, a search warrant issued pursuant to such oral or telephonic statement shall be deemed to be invalid.

Source:Laws 1980, LB 731, § 6.


29-815. Search warrant; executed and returned; inventory required.

(1) The warrant must be executed and returned within ten days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property or shall leave the copy and the receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken if they are present, or in the presence of at least one credible witness other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The judge or magistrate shall deliver a copy of the inventory upon request to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

(2) The return and inventory required by subsection (1) of this section may be submitted to the magistrate or judge in person or by facsimile or other electronic means.

Source:Laws 1963, c. 161, § 4, p. 572; Laws 2015, LB294, § 14.    


Cross References

Annotations

29-816. Search warrant; return; inventory; filing; received in evidence; when.

The judge or magistrate who has issued the search warrant shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with the clerk of the district court for the county in which the property was seized. Copy of such warrant, return, inventory, and all other such papers so filed with such clerk, when certified as a true copy by such clerk shall be received in evidence in all proceedings where relevant without further foundation. The clerk of the district court shall file and index such warrant, together with the return thereon, the inventory, and other papers in connection therewith as a separate criminal proceeding. No fee shall be charged or collected for such service.

Source:Laws 1963, c. 161, § 5, p. 572.


Annotations

29-817. Search warrant; sections, how construed; property, defined; confidential issuance; violation; penalty.

Sections 29-812 to 29-821 do not modify any act inconsistent with it relating to search warrants, their issuance, and the execution of search warrants and acts relating to disposition of seized property in circumstances for which special provision is made. The term property is used in sections 29-812 to 29-821 to include documents, books, papers, and any other tangible objects. Nothing in sections 29-812 to 29-821 shall be construed as restricting or in any way affecting the constitutional right of any officer to make reasonable searches and seizures as an incident to a lawful arrest nor to restrict or in any way affect reasonable searches and seizures authorized or consented to by the person being searched or in charge of the premises being searched, or in any other manner or way authorized or permitted to be made under the Constitution of the United States and the Constitution of the State of Nebraska.

All search warrants shall be issued with all practicable secrecy and the complaint, affidavit, or testimony upon which it is based shall not be filed with the clerk of the court or made public in any way until the warrant is executed. Whoever discloses, prior to its execution, that a warrant has been applied for or issued, except so far as may be necessary to its execution, shall be guilty of a Class III misdemeanor, or he may be punished as for a criminal contempt of court.

Source:Laws 1963, c. 161, § 6, p. 572; Laws 1977, LB 40, § 113.    


29-818. Seized property; custody.

Except for animals as provided in section 28-1012.01, property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer seizing the same, unless otherwise directed by the judge or magistrate, and shall be so kept so long as necessary for the purpose of being produced as evidence in any trial. Property seized may not be taken from the officer having it in custody by replevin or other writ so long as it is or may be required as evidence in any trial, nor may it be so taken in any event where a complaint has been filed in connection with which the property was or may be used as evidence, and the court in which such complaint was filed shall have exclusive jurisdiction for disposition of the property or funds and to determine rights therein, including questions respecting the title, possession, control, and disposition thereof. This section shall not preempt, and shall not be construed to preempt, any ordinance of a city of the metropolitan or primary class.

Source:Laws 1963, c. 161, § 7, p. 573; Laws 2010, LB712, § 14;    Laws 2013, LB423, § 2;    Laws 2015, LB360, § 11.    


Cross References

Annotations

29-819. Seized property; transfer to another jurisdiction; when.

Where seized property is no longer required as evidence in the prosecution of any complaint or information the court which has jurisdiction of such property may transfer the same to the jurisdiction of any other court, including courts of another state or federal courts, where it is shown to the satisfaction of the court that such property is required as evidence in any prosecution in such other court.

Source:Laws 1963, c. 161, § 8, p. 574.


Annotations

29-820. Seized property; disposition.

(1) Unless other disposition is specifically provided by law, when property seized or held is no longer required as evidence, it shall be disposed of by the law enforcement agency on such showing as the law enforcement agency may deem adequate, as follows:

(a) Property stolen, embezzled, obtained by false pretenses, or otherwise obtained unlawfully from the rightful owner thereof shall be restored to the owner;

(b) Money shall be restored to the owner unless it was used in unlawful gambling or lotteries or it was used or intended to be used to facilitate a violation of Chapter 28, article 4, in which case the money shall be forfeited and disposed of as required by Article VII, section 7, of the Constitution of Nebraska;

(c) Property which is unclaimed or the ownership of which is unknown shall be sold at a public auction held by the officer having custody thereof and the net proceeds disposed of as provided in subdivision (b) of this subsection, as shall any money which is unclaimed or the ownership of which is unknown;

(d) Except as provided in subsection (2) of this section, articles of contraband shall be destroyed;

(e) Firearms, ammunition, explosives, bombs, and like devices which have been used in the commission of crime shall be destroyed; and

(f) Firearms which have come into the law enforcement agency's possession through a seizure or otherwise and (i) have not been used in the commission of crime, (ii) have not been defaced or altered in any manner that violates any state or federal law, (iii) may have a lawful use and be lawfully possessed, and (iv) are not subject to section 29-440 shall be restored to the owner.

(2) When the following property is seized or held and is no longer required as evidence, such property shall be disposed of on order of the court as the court may deem adequate:

Goods which are declared to be contraband but may reasonably be returned to a condition or state in which such goods may be lawfully used, possessed, or distributed by the public.

(3) When any animal as defined by section 28-1008 is seized or held and is no longer required as evidence, such animal may be disposed of in such manner as the court may direct. The court may consider adoption alternatives through humane societies or comparable institutions and the protection of such animal's welfare. For a humane society or comparable institution to be considered as an adoption alternative under this subsection, it must first be licensed by the Department of Agriculture as having passed the inspection requirements in the Commercial Dog and Cat Operator Inspection Act and paid the fee for inspection under the act. The court may prohibit an adopting or purchasing party from selling such animal for a period not to exceed one year.

(4) Unless otherwise provided by law, all other property shall be disposed of in such manner as the court in its sound discretion shall direct.

Source:Laws 1963, c. 161, § 9, p. 574; Laws 1986, LB 543, § 1;    Laws 2002, LB 82, § 12;    Laws 2012, LB807, § 1.    


Cross References

Annotations

29-821. Sections; supplemental to other laws.

The provisions of sections 29-812 to 29-821 relating to the disposition of seized property shall not be exclusive, but shall be supplemental to other laws on the subject.

Source:Laws 1963, c. 161, § 10, p. 575.


29-822. Motion to suppress; filing; time; failure to file; effect; exception.

Any person aggrieved by an unlawful search and seizure may move for return of the property so seized and to suppress its use as evidence. The motion shall be filed in the district court where a felony is charged and may be made at any time after the information or indictment is filed, and must be filed at least ten days before trial or at the time of arraignment, whichever is the later, unless otherwise permitted by the court for good cause shown. Where the charge is other than a felony, the motion shall be filed in the court where the complaint is pending, and must be filed at least ten days before trial or at the time of the plea to the complaint, whichever is the later, unless otherwise permitted by the court for good cause shown. Unless claims of unlawful search and seizure are raised by motion before trial as herein provided, all objections to use of the property as evidence on the ground that it was obtained by an unlawful search and seizure shall be deemed waived; Provided, that the court may entertain such motions to suppress after the commencement of trial where the defendant is surprised by the possession of such evidence by the state, and also may in its discretion then entertain the motion where the defendant was not aware of the grounds for the motion before commencement of the trial. In the event that the trial court entertains any such motion after the commencement of trial, the defendant shall be deemed to have waived any jeopardy which may have attached.

Source:Laws 1963, c. 155, § 1, p. 553.


Annotations

29-823. Motion to suppress; issues of fact; trial.

Issues of fact arising on motions to suppress shall be tried by the court without a jury, in a summary manner, on affidavits or otherwise, as the court may direct. No evidence shall be suppressed because of technical irregularities not affecting the substantial rights of the accused.

Source:Laws 1963, c. 155, § 2, p. 553.


Annotations

29-824. Motion to suppress; appeal; review; appeal after conviction.

(1) In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion for the return of seized property and to suppress evidence in the manner provided in sections 29-824 to 29-826.

(2) If such motion has been granted in district court, the Attorney General or the county attorney or prosecuting attorney with the consent of the Attorney General may file his or her application with the Clerk of the Supreme Court asking for a summary review of the order granting the motion. The review shall be made by a judge of the Court of Appeals at chambers upon such notice, briefs, and argument as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.

(3) If such motion has been granted in the county court, the Attorney General or the county attorney or prosecuting attorney may file his or her application with the clerk of the district court in the district in which the motion has been granted asking for a summary review of the order granting the motion. The review shall be made by a judge of the district court upon such notice, briefs, and arguments as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.

Source:Laws 1963, c. 155, § 3, p. 554; Laws 1981, LB 411, § 6; Laws 1991, LB 732, § 73; Laws 1998, LB 218, § 13.    


Annotations

29-825. Motion to suppress; appeal; application.

The application for review provided in section 29-824 shall be accompanied by a copy of the order of the trial court granting the motion to suppress and a bill of exceptions containing all of the evidence, including affidavits, considered by the trial court in its ruling on the motion, and so certified by the trial court. The application shall be filed with the Clerk of the Supreme Court, if the trial court is the district court, or with the clerk of the district court, if the trial court is the county court, within such time as may be ordered by the trial court, which in fixing such time shall take into consideration the length of time required to prepare the bill of exceptions, and shall also consider whether the defendant is in jail or whether he or she is on bail, but in no event shall more than thirty days be given in which to file such application.

Source:Laws 1963, c. 155, § 4, p. 554; Laws 1998, LB 218, § 14;    Laws 2000, LB 921, § 31.    


Annotations

29-826. Motion to suppress; appeal; time limit; order for custody.

In making an order granting a motion to suppress and to return property, the trial court shall in such order fix a time, not exceeding ten days, in which the county attorney or other prosecuting attorney may file a notice with the clerk of such court of his or her intention to seek a review of the order. Upon the filing of such notice the trial court shall fix the time in which the application for review shall be filed with the appellate court, and shall make an appropriate order for custody of the property pending completion of the review.

Source:Laws 1963, c. 155, § 5, p. 554; Laws 1998, LB 218, § 15.    


Annotations

29-827. Repealed. Laws 1998, LB 218, § 29.

29-828. Search for weapons; when authorized.

Where the circumstances reasonably indicate to an officer of the law that a search of an individual for weapons is indicated in order to protect the life of such officer such search for weapons may lawfully be made.

Source:Laws 1963, c. 156, § 1, p. 556.


29-829. Stop and search of person for dangerous weapon; when authorized; peace officer, defined.

A peace officer may stop any person in a public place whom he reasonably suspects of committing, who has committed, or who is about to commit a crime and may demand of him his name, address and an explanation of his actions. When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects he is in danger of life or limb, he may search such person for a dangerous weapon. If the peace officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of questioning, at which time he shall either return it, if lawfully possessed, or arrest such person. For purposes of this section, peace officer shall include credentialed conservation officers of the Game and Parks Commission.

Source:Laws 1965, c. 132, § 1, p. 471.


Annotations

29-830. Inspection warrant, defined.

An inspection warrant is an order in writing in the name of the people, signed by a judge of a court of record, directed to a peace officer as defined in section 29-831, and commanding him to conduct any inspection required or authorized by state or local law or regulation relating to health, welfare, fire or safety.

Source:Laws 1969, c. 231, § 1, p. 858.


Cross References

29-831. Peace officer, defined.

As used in sections 29-830 to 29-835, unless the context otherwise requires:

All state, county, city and village officers and their agents and employees, charged by statute or municipal ordinance with powers or duties involving inspection of real or personal property, building premises and contents, including but not limited by enumeration to housing, electrical, plumbing, heating, gas, fire, health, food, zoning, pollution, water, and weights and measures inspections, shall be peace officers for the purpose of applying for, obtaining and executing inspection warrants.

Source:Laws 1969, c. 231, § 2, p. 859.


29-832. Inspection warrant; when issued.

Inspection warrants shall be issued only upon showing that consent to entry for inspection purposes has been refused. In emergency situations neither consent nor a warrant shall be required.

Source:Laws 1969, c. 231, § 3, p. 859.


29-833. Inspection warrant; issuance; procedure.

An inspection warrant shall be issued only by a judge of a court of record upon reasonable cause, supported by affidavit describing the place and purpose of inspection. The judge may examine the applicant and other witnesses, on oath, to determine sufficient cause for inspection.

Source:Laws 1969, c. 231, § 4, p. 859.


29-834. Inspection warrants; laws applicable.

All general laws pertaining to search warrants, including but not limited to the filing costs involved and the conditions and time for return, shall be applicable to inspection warrants, unless in conflict with sections 29-830 to 29-833.

Source:Laws 1969, c. 231, § 5, p. 859.


29-835. Violations; penalty.

Any person who willfully refuses to permit, interferes with, or prevents any inspection authorized by inspection warrant shall be guilty of a Class III misdemeanor.

Source:Laws 1969, c. 231, § 6, p. 859; Laws 1977, LB 40, § 114.    


29-901. Bail; personal recognizance; appointment of counsel; conditions; pretrial release program; conditions.

(1) Except as provided in subsection (2) of this section, any bailable defendant shall be ordered released from custody pending judgment on his or her personal recognizance unless the judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of victims, witnesses, or other persons in the community.

(2)(a) This subsection applies to any bailable defendant who is charged with one or more Class IIIA, IV, or V misdemeanors or violations of city or county ordinances, except when:

(i) The victim is an intimate partner as defined in section 28-323; or

(ii) The defendant is charged with one or more violations of section 60-6,196 or 60-6,197 or city or village ordinances enacted in conformance with section 60-6,196 or 60-6,197.

(b) Any bailable defendant described in this subsection shall be ordered released from custody pending judgment on his or her personal recognizance or under other conditions of release, other than payment of a bond, unless:

(i) The defendant has previously failed to appear in the instant case or any other case in the previous six months;

(ii) The judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of the defendant, victims, witnesses, or other persons; and

(iii) The defendant was arrested pursuant to a warrant.

(3) The court shall consider all methods of bond and conditions of release to avoid pretrial incarceration. If the judge determines that the defendant shall not be released on his or her personal recognizance, the judge shall consider the defendant's financial ability to pay a bond and shall impose the least onerous of the following conditions that will reasonably assure the defendant's appearance or that will eliminate or minimize the risk of harm to others or the public at large:

(a) Place the defendant in the custody of a designated person or organization agreeing to supervise the defendant;

(b) Place restrictions on the travel, association, or place of abode of the defendant during the period of such release; or

(c) Require, at the option of any bailable defendant, either of the following:

(i) The execution of an appearance bond in a specified amount and the deposit with the clerk of the court in cash of a sum not to exceed ten percent of the amount of the bond, ninety percent of such deposit to be returned to the defendant upon the performance of the appearance or appearances and ten percent to be retained by the clerk as appearance bond costs, except that when no charge is subsequently filed against the defendant or if the charge or charges which are filed are dropped before the appearance of the defendant which the bond was to assure, the entire deposit shall be returned to the defendant. If the bond is subsequently reduced by the court after the original bond has been posted, no additional appearance bond costs shall be retained by the clerk. The difference in the appearance bond costs between the original bond and the reduced bond shall be returned to the defendant. In no event shall the deposit be less than twenty-five dollars. Whenever jurisdiction is transferred from a court requiring an appearance bond under this subdivision to another state court, the transferring court shall transfer the ninety percent of the deposit remaining after the appearance bond costs have been retained. No further costs shall be levied or collected by the court acquiring jurisdiction; or

(ii) The execution of a bail bond with such surety or sureties as shall seem proper to the judge or, in lieu of such surety or sureties, at the option of such person, a cash deposit of such sum so fixed, conditioned for his or her appearance before the proper court, to answer the offense with which he or she may be charged and to appear at such times thereafter as may be ordered by the proper court. The cash deposit shall be returned to the defendant upon the performance of all appearances.

(4) If the court requires the defendant to execute an appearance bond requiring the defendant to post money or requires the defendant to execute a bail bond, the court shall appoint counsel for the defendant if the court finds the defendant is financially unable to pay the amount required and is indigent.

(5) If the amount of bail is deemed insufficient by the court before which the offense is pending, the court may order an increase of such bail and the defendant shall provide the additional undertaking, written or cash, to secure his or her release. All recognizances in criminal cases shall be in writing and be continuous from term to term until final judgment of the court in such cases and shall also extend, when the court has suspended execution of sentence for a limited time, as provided in section 29-2202, or, when the court has suspended execution of sentence to enable the defendant to apply for a writ of error to the Supreme Court or Court of Appeals, as provided in section 29-2301, until the period of suspension has expired. When two or more indictments or informations are returned against the same person at the same term of court, the recognizance given may be made to include all offenses charged therein. Each surety on such recognizance shall be required to justify under oath in a sum twice the amount of such recognizance and give the description of real estate owned by him or her of a value above encumbrance equal to the amount of such justification and shall name all other cases pending in which he or she is a surety. No one shall be accepted as surety on recognizance aggregating a sum in excess of his or her equity in the real estate, but such recognizance shall not constitute a lien on the real estate described therein until judgment is entered thereon against such surety.

(6) In order to assure compliance with the conditions of release referred to in subsection (3) of this section, the court may order a defendant to be supervised by a person, an organization, or a pretrial services program approved by the county board. A court shall waive any fees or costs associated with the conditions of release or supervision if the court finds the defendant is unable to pay for such costs. Eligibility for release or supervision by such pretrial release program shall under no circumstances be conditioned upon the defendant's ability to pay. While under supervision of an approved entity, and in addition to the conditions of release referred to in subsection (3) of this section, the court may impose the following conditions:

(a) Periodic telephone contact by the defendant with the organization or pretrial services program;

(b) Periodic office visits by the defendant to the organization or pretrial services program;

(c) Periodic visits to the defendant's home by the organization or pretrial services program;

(d) Mental health or substance abuse treatment for the defendant, including residential treatment, if the defendant consents or agrees to the treatment;

(e) Periodic alcohol or drug testing of the defendant;

(f) Domestic violence counseling for the defendant, if the defendant consents or agrees to the counseling;

(g) Electronic or global-positioning monitoring of the defendant;

(h) Participation in a 24/7 sobriety program under the 24/7 Sobriety Program Act; and

(i) Any other supervision techniques shown by research to increase court appearance and public safety rates for defendants released on bond.

(7) The incriminating results of any drug or alcohol test or any information learned by a representative of an organization or program shall not be admissible in any proceeding, except for a proceeding relating to revocation or amendment of conditions of bond release.

Source:G.S.1873, c. 58, §§ 346 to 348, p. 802; R.S.1913, § 9003; Laws 1921, c. 203, § 1, p. 733; C.S.1922, § 10027; C.S.1929, § 29-901; R.S.1943, § 29-901; Laws 1951, c. 87, § 1, p. 250; Laws 1953, c. 90, § 1, p. 261; Laws 1961, c. 132, § 1, p. 384; Laws 1972, LB 1032, § 174;    Laws 1974, LB 828, § 1;    Laws 1975, LB 284, § 2;    Laws 1984, LB 773, § 1;    Laws 1991, LB 732, § 74; Laws 1999, LB 51, § 1;    Laws 2009, LB63, § 23;    Laws 2010, LB771, § 15;    Laws 2017, LB259, § 2;    Laws 2020, LB881, § 14;    Laws 2021, LB271, § 7.    


Cross References

Annotations

29-901.01. Conditions of release; how determined.

In determining which condition or conditions of release shall reasonably assure appearance and deter possible threats to the safety and maintenance of evidence or the safety of victims, witnesses, or other persons in the community, the judge shall, on the basis of available information, consider the defendant’s financial ability to pay in setting the amount of bond. The judge may also take into account the nature and circumstances of the offense charged, including any information to indicate that the defendant might engage in additional criminal activity or pose a threat to himself or herself, yet to be collected evidence, alleged victims, potential witnesses, or members of the general public, the defendant's family ties, employment, the length of the defendant's residence in the community, the defendant's record of criminal convictions, and the defendant's record of appearances at court proceedings or of flight to avoid prosecution or of failure to appear at court proceedings.

Source:Laws 1974, LB 828, § 2;    Laws 2009, LB63, § 24;    Laws 2010, LB771, § 16;    Laws 2017, LB259, § 3.    


29-901.02. Release; order; contents.

Any judge who shall authorize the release of a defendant under section 29-901 shall issue a written order containing a statement of the condition or conditions imposed, shall inform the defendant of the penalties for violating any of the conditions of such release, and shall advise the defendant that a warrant for his arrest shall be issued immediately upon such violation.

Source:Laws 1974, LB 828, § 3.    


Annotations

29-901.03. Conditions of release; review; procedure.

When a defendant first appears before a judge pursuant to section 29-901, he shall be advised of his right to obtain review of the conditions of release imposed if he is unable to fulfill such conditions and remains in custody for more than twenty-four hours thereafter. Any defendant who shall remain in custody for more than twenty-four hours after a judge other than a district court judge imposes bail or any other condition of release, as a result of his inability to fulfill such condition or conditions, may request a review by the judge who imposed the conditions and, upon such request, the defendant shall be brought before the judge at the first regular court day. If the defendant is indigent and unable to retain legal counsel, the judge shall appoint an attorney to represent the defendant for the purpose of such review. Unless the conditions of release are amended and the defendant is thereupon released, the judge shall set forth in writing the reasons for requiring such condition or conditions. Any defendant who shall be ordered released by a judge other than a district court judge on a condition which requires that he return to custody after specified hours shall, upon application, be entitled to a review by the judge who imposed the condition in the same manner as a defendant who remains in full-time custody. In the event that the judge who imposed the condition or conditions of release is not available, any other judge in the district or of the same court may review such conditions.

Source:Laws 1974, LB 828, § 4;    Laws 1975, LB 284, § 3.    


29-901.04. Conditions of release; amendment; review.

Any judge who shall order the release of a defendant on any condition specified in section 29-901 may at any time amend his order to impose additional or different conditions of release, but if the imposition of different or additional conditions results in the detention of the defendant as a result of his inability to meet such conditions, the provisions of section 29-901.03 shall apply.

Source:Laws 1974, LB 828, § 5.    


29-901.05. Bail; uniform schedule; how adopted; payment; procedure.

(1) It shall be the duty of the judges of the county court in each county to prepare and adopt, by a majority vote, a schedule of bail for all misdemeanor offenses and such other offenses as the judges deem necessary. It shall contain a list of such offenses and the amounts of bail applicable thereto as the judges determine to be appropriate. If the schedule does not list all misdemeanor and other offenses specifically, it shall contain a general clause for misdemeanors and a separate one for any other offenses providing for designated amounts of bail as the judges of the county determine to be appropriate for all such offenses. The schedule of bail may be revised from time to time by the judges of the county, and the presiding county court judge at each county seat shall call not more than two meetings nor less than one meeting each year of all judges of the county court in the county for the purpose of establishing or revising a countywide uniform bail schedule. A copy of the schedule shall be sent to the officer in charge of the county jail and to the officer in charge of each city jail within the county.

(2) When bail has been set by a judge for a particular offense or offender, any sheriff or other peace officer may take bail in accordance with the provisions of section 29-901 and release the offender to appear in accordance with the conditions of the bail bond, the notice to appear, or the summons. Such officer shall give a receipt to the offender for the bail so taken and within a reasonable time deposit such bail with the clerk of the court having jurisdiction of the offense.

Source:Laws 1974, LB 828, § 6;    Laws 1977, LB 112, § 1;    Laws 1984, LB 13, § 57.    


29-901.06. Bailable defendant; duty of court to inform of rights and duties.

When a bailable defendant appears at any judicial proceeding in which such defendant's bail is being considered, the judge at such proceeding shall inform the defendant of the condition or conditions imposed on his release, the penalties for violating any of the conditions of such release, and any options or alternatives available to such defendant.

Source:Laws 1974, LB 828, § 7.    


Annotations

29-902. Bail; proceeding for taking.

For taking such bail, the judge may, by his special warrant under his hand and seal, require the sheriff or jailer to bring such accused before him at the courthouse of the proper county at such time as in such warrant the judge may direct.

Source:G.S.1873, c. 58, § 347, p. 802; R.S.1913, § 9004; C.S.1922, § 10028; C.S.1929, § 29-902; R.S.1943, § 29-902.


29-902.01. Presiding judge of certain county courts; designate a judge on call; custodial officer; duties.

(1) The presiding judge of the county court in each county having a population of four hundred thousand or more inhabitants as determined by the most recent federal decennial census shall, as often as is necessary, meet and designate on a schedule not less than one judge of the county court to be reasonably available on call for the setting of orders for discharge from actual custody upon bail, the issuance of search warrants, and for such other matters as may be deemed appropriate, at all times when a court is not in session in the county.

(2) The officer in charge of a jail, or a person such officer designates, in which an arrested person is held in custody shall assist the arrested person or such person's attorney in contacting the judge on call as soon as possible for the purpose of obtaining release on bail.

Source:Laws 1977, LB 11, § 1; Laws 1984, LB 13, § 58;    Laws 2016, LB742, § 15.    


29-903. Bail; amount; pretrial release agency; release recommendation; release without bond; when.

In fixing the amount of bail, the judge admitting to the same shall be governed in the amount and quality of bail required by the direction of the district court in all cases where such court shall have made any order or direction in that behalf. In the event that the district court shall designate an official pretrial release agency for the district, the judge may give consideration to a report and recommendation of such agency and in the event that such agency should recommend the release of the prisoner on his own recognizance, the court may order release of such prisoner without the necessity of posting a cash deposit or requiring the sureties set out in section 29-901.

Source:G.S.1873, c. 58, § 348, p. 802; R.S.1913, § 9005; C.S.1922, § 10029; C.S.1929, § 29-903; R.S.1943, § 29-903; Laws 1971, LB 316, § 1;    Laws 1972, LB 1248, § 1;    Laws 1974, LB 828, § 8.    


29-904. Recognizance; deposit with clerk; discharge of prisoner.

In all cases when a judge or examining court shall recognize a prisoner under the provisions of the three sections 29-901, 29-902, and 29-903, he shall forthwith deposit with the clerk of the proper court the recognizance so taken, and also a warrant directed to the jailer requiring him to discharge the prisoner.

Source:G.S.1873, c. 58, § 349, p. 803; R.S.1913, § 9006; C.S.1922, § 10030; C.S.1929, § 29-904; R.S.1943, § 29-904.


29-905. Surrender of accused by surety to court; discharge of surety; new recognizance; conditions.

When any person, who is surety in a recognizance for the appearance of any defendant before any court in this state, desires to surrender the defendant, he shall, by delivering the defendant in open court, be discharged from any further responsibility on such recognizance; and the defendant shall be committed by the court to the jail of the county, unless he shall give a new recognizance, with good and sufficient sureties in such amount as the court may determine, conditioned as the original recognizance.

Source:G.S.1873, c. 58, § 350, p. 803; R.S.1913, § 9007; C.S.1922, § 10031; C.S.1929, § 29-905; R.S.1943, § 29-905.


Annotations

29-906. Surrender of accused by surety to sheriff; authority.

In all cases of bail for the appearance of any person or persons charged with any criminal offense, the surety or sureties of such person or persons may, at any time before judgment is rendered against him or them, seize and surrender such person or persons charged as aforesaid to the sheriff of the county wherein the recognizance shall be taken.

Source:G.S.1873, c. 58, § 351, p. 803; R.S.1913, § 9008; C.S.1922, § 10032; C.S.1929, § 29-906; R.S.1943, § 29-906.


Annotations

29-907. Surrender of accused by surety to sheriff; duty of sheriff; discharge of surety.

It shall be the duty of such sheriff, on such surrender and the delivery to him of a certified copy of the recognizance by which such surety or sureties are bound, to take such person or persons so charged as aforesaid into custody, and by writing acknowledge such surrender, and thereupon the surety or sureties shall be discharged from any such recognizance, upon payment of all costs occasioned thereby.

Source:G.S.1873, c. 58, § 352, p. 803; R.S.1913, § 9009; C.S.1922, § 10033; C.S.1929, § 29-907; R.S.1943, § 29-907.


29-908. Bail, recognizance, or conditional release; failure to appear; penalties.

Whoever is charged with a felony and is released from custody under bail, recognizance, or a conditioned release and willfully fails to appear before the court granting such release when legally required or to surrender himself within three days thereafter, shall be guilty of a Class IV felony, in addition to any other penalties or forfeitures provided by law.

Whoever is charged with a misdemeanor or violation of city or village ordinance, conviction of which would carry a jail sentence of more than ninety days, who is released from custody under bail or recognizance or conditioned release and who willfully fails to appear before the court granting such release when legally required to surrender himself or within three days thereafter, shall be guilty of a Class II misdemeanor, in addition to any other penalties or forfeitures provided by law.

Source:Laws 1971, LB 274, § 1;    Laws 1977, LB 40, § 115.    


Annotations

29-909. Pretrial release agency; authority to designate; recommendations; recognizance; when.

The district courts of this state are authorized to designate an official pretrial release agency for a district, or for any county within a district, whenever the court is satisfied that such agency can render competent and effective assistance to the court in making its determination of the terms and conditions under which any court should release a prisoner from jail prior to trial. When such a pretrial release agency has been designated, the judge of any court within the district or county in which such agency has been authorized to operate may give consideration to a report and recommendation of such agency and in the event that such agency should recommend the release of the prisoner on his own recognizance, the court may order the release of the prisoner without the necessity of posting a cash deposit or requiring any surety set out in section 29-901. Nothing in this section shall restrict any court from releasing a prisoner on his own recognizance, whether or not he has received a report or recommendation from a pretrial release agency, if the judge determines that such type of release would adequately serve the ends of justice.

Source:Laws 1971, LB 412, § 1;    Laws 1972, LB 1249, § 1;    Laws 1974, LB 828, § 9.    


29-910. Pretrial release agency; designation; order; contents.

In the event the district court shall designate an official pretrial release agency, an order designating such agency shall be filed with the clerk of each district court in such district and shall affect all courts within such district. The order shall set out the name of the agency, its sponsoring agencies, if any, and the terms and conditions under which such agency shall operate.

Source:Laws 1971, LB 412, § 2;    Laws 1972, LB 1249, § 2;    Laws 1984, LB 13, § 59.    


29-1001. Prisoner; where confined.

Whenever it shall be lawful and necessary to confine any prisoner in custody previous to conviction upon a criminal accusation, or in custody for contempt or alleged contempt of court, or upon an attachment by order of a court or judge, or otherwise in lawful custody, or upon conviction for any offense, the officer or person having him in such custody may convey him to and confine him in the jail of any county in this state, or other secure and convenient place of confinement in this state, to be procured by such officer or person having such prisoner in custody.

Source:G.S.1873, c. 58, § 377, p. 810; R.S.1913, § 9010; C.S.1922, § 10034; C.S.1929, § 29-1001; R.S.1943, § 29-1001.


Annotations

29-1002. Repealed. Laws 1998, LB 695, § 10.

29-1003. Repealed. Laws 1998, LB 695, § 10.

29-1004. Repealed. Laws 1998, LB 695, § 10.

29-1005. Repealed. Laws 1998, LB 695, § 10.

29-1006. Repealed. Laws 1990, LB 829, § 3.

29-1007. Custody awaiting trial; deadline; release after hearing.

A defendant charged with any offense or offenses shall not be held in custody awaiting trial on such offense or offenses for a period of time longer than the maximum possible sentence of imprisonment authorized for such offense or offenses. On the next judicial day after expiration of such deadline, the defendant shall be released on such defendant's personal recognizance, subject to conditions of release the court may impose after a hearing.

Source:Laws 2020, LB881, § 22.    


29-1101. Repealed. Laws 1953, c. 88, § 6.

29-1102. Repealed. Laws 1953, c. 88, § 6.

29-1103. Repealed. Laws 1953, c. 88, § 6.

29-1104. Repealed. Laws 1953, c. 88, § 6.

29-1105. Recognizance forfeited; recovery notwithstanding defects.

No action brought on any recognizance shall be barred or defeated, nor shall judgment thereon be reversed by reason of any neglect or omission to note or record the default, nor by reason of any defect in the form of the recognizance if it sufficiently appears from the tenor thereof at what court the party or witness was bound to appear and that the court or officer before whom it was taken was authorized by law to require and take such recognizance.

Source:G.S.1873, c. 58, § 388, p. 812; R.S.1913, § 9019; C.S.1922, § 10043; R.S.1943, § 29-1105.


Annotations

29-1106. Recognizance forfeited; when.

When there is a breach of condition of a recognizance, the court shall declare a forfeiture of the bail.

Source:Laws 1953, c. 88, § 1, p. 259.


Annotations

29-1107. Recognizance forfeited; set aside; conditions.

The court may direct that a forfeiture of the recognizance be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

Source:Laws 1953, c. 88, § 2, p. 259.


Annotations

29-1108. Recognizance forfeited; motion; notice; judgment; cash deposit, disposition.

When a forfeiture of a recognizance has not been set aside, the court in which the proceeding is pending shall on motion enter a judgment of default and execution may issue thereon. Where a cash deposit has been made in lieu of a surety or sureties as provided in section 29-901, the cash deposit shall upon forfeiture of the recognizance be paid into the county treasury upon the entry of order of forfeiture of the bond after first deducting all court costs due and owing such court. By entering into a bond, the obligors submit to the jurisdiction of the court, and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. The liability upon the bond may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies thereof to the obligors to their last-known addresses.

Source:Laws 1953, c. 88, § 3, p. 259; Laws 1961, c. 133, § 1, p. 386; Laws 1971, LB 959, § 5.    


Cross References

Annotations

29-1109. Recognizance forfeited; judgment; remission; conditions.

After entry of such judgment on the recognizance, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture as provided in section 29-1107.

Source:Laws 1953, c. 88, § 4, p. 260.


Annotations

29-1110. Recognizance forfeited; satisfaction; forfeiture set aside or remitted; exoneration of surety.

When the conditions of the recognizance have been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the recognizance or by a timely surrender of the defendant into custody.

Source:Laws 1953, c. 88, § 5, p. 260.


Cross References

29-1201. Prisoner held without indictment; discharge or recognizance; when.

Any person held in jail charged with an indictable offense shall be discharged if he or she is not indicted at the term of court at which he or she is held to answer, unless such person is committed to jail on such charge after the rising and final report of the grand jury for that term, in which case the court may discharge such person, or require such person to enter into recognizance with sufficient security for his or her appearance before such court to answer such charge at the next term. However, such person so held in jail without indictment shall not be discharged if it appears to the satisfaction of the court that the witnesses on the part of the state have been enticed or kept away or are detained and prevented from attending court by sickness or some inevitable accident.

Source:G.S.1873, c. 58, § 389, p. 812; R.S.1913, § 9020; C.S.1922, § 10044; C.S.1929, § 29-1201; R.S.1943, § 29-1201; Laws 2020, LB387, § 41.    


Cross References

Annotations

29-1202. Repealed. Laws 1971, LB 436, § 6.

29-1203. Repealed. Laws 1971, LB 436, § 6.

29-1204. Repealed. Laws 1971, LB 436, § 6.

29-1205. Right of accused to a speedy trial; preferences.

To effectuate the right of the accused to a speedy trial and the interest of the public in prompt disposition of criminal cases, insofar as is practicable:

(1) The trial of criminal cases shall be given preference over civil cases; and

(2) The trial of defendants in custody and defendants whose pretrial liberty is reasonably believed to present unusual risks shall be given preference over other criminal cases. It shall be the duty of the county attorney to bring to the attention of the trial court any cases falling within this subdivision, and he shall generally advise the court of facts relevant in determining the order of cases to be tried.

Source:Laws 1971, LB 436, § 1.    


Cross References

Annotations

29-1206. Continuance; how granted.

Applications for continuances shall be made in accordance with section 25-1148, but in criminal cases in the district court the court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecution or defense, but also the public interest in prompt disposition of the case.

Source:Laws 1971, LB 436, § 2.    


Annotations

29-1207. Trial within six months; time; how computed.

(1) Every person indicted or informed against for any offense shall be brought to trial within six months, and such time shall be computed as provided in this section.

(2) Such six-month period shall commence to run from the date the indictment is returned or the information filed, unless the offense is a misdemeanor offense involving intimate partners, as that term is defined in section 28-323, in which case the six-month period shall commence from the date the defendant is arrested on a complaint filed as part of a warrant for arrest.

(3) If a defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, such period shall commence to run from the date of the mistrial, order granting a new trial, or the mandate on remand.

(4) The following periods shall be excluded in computing the time for trial:

(a) The period of delay resulting from other proceedings concerning the defendant, including, but not limited to, an examination and hearing on competency and the period during which he or she is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence, motions to quash the indictment or information, demurrers and pleas in abatement, and motions for a change of venue; and the time consumed in the trial of other charges against the defendant;

(b) The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his or her counsel. A defendant without counsel shall not be deemed to have consented to a continuance unless he or she has been advised by the court of his or her right to a speedy trial and the effect of his or her consent. A defendant who has sought and obtained a continuance which is indefinite has an affirmative duty to end the continuance by giving notice of request for trial or the court can end the continuance by setting a trial date. When the court ends an indefinite continuance by setting a trial date, the excludable period resulting from the indefinite continuance ends on the date for which trial commences. A defendant is deemed to have waived his or her right to speedy trial when the period of delay resulting from a continuance granted at the request of the defendant or his or her counsel extends the trial date beyond the statutory six-month period;

(c) The period of delay resulting from a continuance granted at the request of the prosecuting attorney, if:

(i) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date; or

(ii) The continuance is granted to allow the prosecuting attorney additional time to prepare the state's case and additional time is justified because of the exceptional circumstances of the case;

(d) The period of delay resulting from the absence or unavailability of the defendant;

(e) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases, the defendant shall be granted a severance so that he or she may be tried within the time limits applicable to him or her; and

(f) Other periods of delay not specifically enumerated in this section, but only if the court finds that they are for good cause.

Source:Laws 1971, LB 436, § 3;    Laws 2008, LB623, § 1;    Laws 2010, LB712, § 15.    


Cross References

Annotations

29-1208. Discharge from offense charged; when.

If a defendant is not brought to trial before the running of the time for trial as provided for in section 29-1207, as extended by excluded periods, he or she shall be entitled to his or her absolute discharge from the offense charged and for any other offense required by law to be joined with that offense.

Source:Laws 1971, LB 436, § 4;    Laws 2010, LB712, § 16.    


Annotations

29-1209. Failure of defendant to move for discharge prior to trial or entry of plea; effect.

Failure of the defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to speedy trial.

Source:Laws 1971, LB 436, § 5.    


Annotations

29-1301. Venue; change; when allowed.

All criminal cases shall be tried in the county where the offense was committed, except as otherwise provided in section 25-412.03 or sections 29-1301.01 to 29-1301.04, or unless it shall appear to the court by affidavits that a fair and impartial trial cannot be had therein. In such case the court, upon motion of the defendant, shall transfer the proceeding to any other district or county in the state as determined by the court.

Source:G.S.1873, c. 58, § 455, p. 823; R.S.1913, § 9024; C.S.1922, § 10048; C.S.1929, § 29-1301; R.S.1943, § 29-1301; Laws 1957, c. 103, § 1, p. 363; Laws 1975, LB 97, § 7;    Laws 1978, LB 562, § 1;    Laws 2021, LB500, § 1.    


Cross References

Annotations

29-1301.01. Venue; crime committed in different counties.

If any person shall commit an offense against the person of another, such accused person may be tried in the county in which the offense is committed, or in any county into or out of which the person upon whom the offense was committed may, in the prosecution of the offense, have been brought, or in which an act is done by the accused in instigating, procuring, promoting, or aiding in the commission of the offense, or in aiding, abetting, or procuring another to commit such offense.

Source:Laws 1957, c. 103, § 2, p. 364.


Annotations

29-1301.02. Venue; crime committed on moving means of transportation.

When an offense is committed in this state, on board a vessel navigating a river, bay, slough, lake, or canal, or lying therein, in the prosecution of its voyage, or on a railroad train, or car, motor vehicle, common carrier transporting passengers, or on an aircraft prosecuting its trip, the accused may be tried in any county through, on, or over which the vessel, train, car, motor vehicle, common carrier, or aircraft passes in the course of its voyage or trip, or in the county in which the voyage or trip terminates.

Source:Laws 1957, c. 103, § 3, p. 364.


Annotations

29-1301.03. Venue; jurisdiction in two or more counties; effect of conviction or acquittal.

Where an offense is within the jurisdiction of two or more counties, a conviction or acquittal thereof in one county is a bar to a prosecution or indictment therefor in another.

Source:Laws 1957, c. 103, § 4, p. 364.


29-1301.04. Venue; crime committed using an electronic communication device.

(1) If a person uses an electronic communication device to commit any element of an offense, such person may be tried in the county where the electronic communication was initiated or where the electronic communication was received.

(2) For purposes of this section:

(a) Electronic communication has the same meaning as in section 28-1310; and

(b) Electronic communication device has the same meaning as in section 28-833.

Source:Laws 2021, LB500, § 2.    


29-1302. Change of venue; how effected; costs; payment.

When the venue is changed, the clerk of the court in which the indictment was found shall file a certification of the case file and costs, which together with the original indictment, shall be transmitted to the clerk of the court to which the venue is changed, and the trial shall be conducted in all respects as if the offender had been indicted in the county to which the venue has been changed. All costs, fees, charges, and expenses accruing from a change of venue, together with all costs, fees, charges, and expenses made or incurred in the trial of, or in keeping, guarding, and maintaining the accused shall be paid by the county in which the indictment was found. The clerk of the trial court shall make a statement of such costs, fees, charges, and expenses and certify and transmit the same to the clerk of the district court where the indictment was found, to be entered upon the register of actions and collected and paid as if a change of venue had not been had.

Source:G.S.1873, c. 58, § 456, p. 824; Laws 1883, c. 84, § 1, p. 329; Laws 1887, c. 109, § 1, p. 667; R.S.1913, § 9025; C.S.1922, § 10049; C.S.1929, § 29-1302; R.S.1943, § 29-1302; Laws 1978, LB 562, § 2;    Laws 2018, LB193, § 50.    


Annotations

29-1303. Change of venue; transfer of prisoner.

When a court has ordered a change of venue, a warrant shall be issued by the clerk, directed to the sheriff, commanding him safely to convey the prisoner to the jail of the county where he is to be tried, there to be safely kept by the jailer thereof until discharged by due course of law.

Source:G.S.1873, c. 58, § 457, p. 824; R.S.1913, § 9026; C.S.1922, § 10050; C.S.1929, § 29-1303; R.S.1943, § 29-1303.


Annotations

29-1304. Change of venue; witnesses recognized to appear.

When a change of venue is allowed, the court shall recognize the witnesses on the part of the state to appear before the court in which the prisoner is to be tried.

Source:G.S.1873, c. 58, § 458, p. 824; R.S.1913, § 9027; C.S.1922, § 10051; C.S.1929, § 29-1304; R.S.1943, § 29-1304.


Annotations

29-1305. Venue; crime committed on county line.

When an offense shall be committed on a county line, the trial may be in either county divided by such line; and where any offense shall be committed against the person of another, and the person committing the offense shall be in one county, and the person receiving the injury shall be in another county, the trial may be had in either of such counties.

Source:G.S.1873, c. 58, § 424, p. 819; R.S.1913, § 9028; C.S.1922, § 10052; C.S.1929, § 29-1305; R.S.1943, § 29-1305.


Annotations

29-1306. Venue; death occurring in another county or state.

If any person shall give any mortal blow or administer any poison to another, in any county within this state, with intent to kill, and the party so stricken or poisoned thereof shall die in any other county or state, the person giving such mortal blow or administering such poison may be tried and convicted of murder or manslaughter, as the case may be, in the county where such mortal blow was given or poison administered.

Source:G.S.1873, c. 58, § 545, p. 844; R.S.1913, § 9029; C.S.1922, § 10053; C.S.1929, § 29-1306; R.S.1943, § 29-1306.


Annotations

29-1307. Venue; receiver of stolen property.

Whenever any person shall be liable to prosecution as the receiver of any personal property that shall have been feloniously stolen, taken or embezzled, he may be indicted in any county where he received or had such property, notwithstanding the theft was committed in another county.

Source:G.S.1873, c. 58, § 423, p. 819; R.S.1913, § 9030; C.S.1922, § 10054; C.S.1929, § 29-1307; R.S.1943, § 29-1307.


Annotations

29-1401. Grand jury; when called; death while being apprehended or in custody; procedures.

(1) The district courts are hereby vested with power to call grand juries.

(2) A grand jury may be called and summoned in the manner provided by law on such day of a regular term of the district court in each year in each county of the state as the district court may direct and at such other times and upon such notice as the district court may deem necessary.

(3) District courts shall call a grand jury in each case that a petition meets the requirements of section 32-628, includes a recital as to the reason for requesting the convening of the grand jury and a specific reference to the statute or statutes which are alleged to have been violated, and is signed not more than ninety days prior to the date of filing under section 29-1401.02 by not less than ten percent of the registered voters of the county who cast votes for the office of Governor in such county at the most recent general election held for such office.

(4) District courts shall call a grand jury in each case upon certification by the county coroner or coroner's physician that a person has died while being apprehended by or while in the custody of a law enforcement officer or detention personnel. In each case subject to this subsection:

(a) Law enforcement personnel from the jurisdiction in which the death occurred shall immediately secure the scene, preserve all evidence, and investigate the matter as in any other homicide. The case shall be treated as an open, ongoing matter until all evidence, reports, and other relevant material which has been assembled are transferred to a prosecuting attorney selected pursuant to subdivision (b) of this subsection;

(b) The county attorney or a member of his or her staff shall be the prosecuting attorney. Except as provided in subdivision (d) of this subsection, the prosecuting attorney shall, as soon as practicable, select a team of three peace officers trained to investigate homicides. At least two of such investigators shall be from agencies other than the agency under which the death occurred. The team shall examine all evidence concerning the cause of death and present the findings of its investigation to the prosecuting attorney;

(c) A grand jury shall be impaneled within thirty days after the certification by the county coroner or coroner's physician, unless the court extends such time period upon the showing of a compelling reason; and

(d) In those cases in which the death has been certified by a licensed practicing physician to be from natural causes, the county attorney or a member of his or her staff may present such finding to a grand jury without selecting a three-member team of peace officers to investigate.

Source:Laws 1909, c. 171, § 1, p. 591; R.S.1913, § 9031; Laws 1917, c. 148, § 1, p. 333; C.S.1922, § 10055; C.S.1929, § 29-1401; Laws 1939, c. 18, § 19, p. 111; C.S.Supp.,1941, § 29-1401; R.S.1943, § 29-1401; Laws 1959, c. 118, § 1, p. 449; Laws 1969, c. 237, § 1, p. 874; Laws 1988, LB 676, § 4;    Laws 1999, LB 72, § 2;    Laws 2002, LB 935, § 2;    Laws 2010, LB842, § 1;    Laws 2016, LB1000, § 5.    


Annotations

29-1401.01. Repealed. Laws 2002, LB 935, § 19.

29-1401.02. Grand jury by petition; procedure; failure to call; filing.

The procedure for calling a grand jury by petition of the registered voters of the county shall be as follows:

(1) The petitions shall be filed in the office of the clerk of the district court, comply with the requirements in section 29-1401, and be filed without a filing fee;

(2) Upon receipt of such petitions, the clerk of the district court shall forthwith certify the petitions so filed to the county clerk or election commissioner in the county in which the signers of such petitions are registered to vote and shall request that the signatures on such petitions be validated according to the list of registered voters;

(3) The county clerk or election commissioner shall, within thirty days after receipt of such petitions, determine the number of valid signatures appearing on such petitions and certify the findings along with the total vote cast for Governor at the most recent election for such office in such county to the presiding judge of the district court in which the petitions were filed;

(4) The presiding judge of the district court shall, upon receipt of the certificate from the county clerk or election commissioner, examine the petitions and within fifteen days after the receipt thereof shall determine: (a) Whether the requisite number of valid signatures appear on such petitions; and (b) whether the formal requirements as to the form of the petition have been satisfied;

(5) The determination of sufficiency of the petitions by the presiding judge shall be based solely upon the certification of valid signatures by the county clerk or election commissioner and upon the presiding judge's personal examination of the form of the petitions. No additional evidence shall be considered by the presiding judge in making the determination of sufficiency and under no circumstances shall any petitioner be required to testify or otherwise present evidence relating to allegations contained in the petitions;

(6) Upon a determination that the requisite number of valid signatures appeared on the petitions and that the petitions otherwise were sufficient as to form, the presiding judge shall call a grand jury forthwith;

(7) If the presiding judge of the district court fails to make a determination as to the sufficiency of the petitions and fails to call a grand jury within fifteen days after the date of delivery of the petitions to the presiding judge, the clerk of the district court shall immediately call a grand jury pursuant to law, notwithstanding the fact that the presiding judge of the district court failed to determine sufficiency of the petitions and did not call the grand jury; and

(8) If the presiding judge or clerk of the district court fails to call a grand jury, the petitioners may file an immediate request with the Chief Justice of the Supreme Court, or in his or her absence, with any judge thereof, and request that the Chief Justice or judge review the petitions and certifications and call a grand jury. If the Chief Justice or judge of the Supreme Court determines sufficiency of the petitions according to law, the Chief Justice or judge shall order the clerk of the district court to call a grand jury.

Source:Laws 1969, c. 237, § 3, p. 876; Laws 2002, LB 935, § 3.    


29-1402. Grand jury; convening; no limitation on right to prosecute by information.

The convening of a grand jury shall in no way limit the right of prosecution on information or complaint during the time the grand jury is in session.

Source:G.S.1873, c. 58, § 393, p. 814; R.S.1913, § 9032; C.S.1922, § 10056; C.S.1929, § 29-1402; R.S.1943, § 29-1402; Laws 1959, c. 118, § 3, p. 450.


Annotations

29-1403. Foreman; appointment.

When the grand jury shall be impaneled the court shall appoint one of the number foreman.

Source:G.S.1873, c. 58, § 394, p. 814; R.S.1913, § 9033; C.S.1922, § 10057; C.S.1929, § 29-1403; R.S.1943, § 29-1403.


29-1404. Foreperson; oath or affirmation; form.

(1) Except as provided in subsection (2) of this section, when the foreperson shall be appointed, an oath or affirmation shall be administered to him or her in the following words: Saving yourself and fellow jurors, you, as foreperson of this grand inquest, shall diligently inquire and true presentment make, of all such matters and things as shall be given you in charge or otherwise come to your knowledge, touching the present service. The counsel of the state, your own and your fellows, you shall keep secret, unless called on in a court of justice to make disclosures. You shall present no person through malice, hatred, or ill will, nor shall you leave any person unpresented through fear, favor, or affection, or for any reward or hope thereof; but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding.

(2) For grand juries impaneled pursuant to subsection (4) of section 29-1401, when the foreperson shall be appointed, an oath or affirmation shall be administered to him or her in the following words: Saving yourself and fellow jurors, you, as foreperson of this grand inquest, shall diligently inquire and true presentment make, of all such matters and things as shall be given you in charge or otherwise come to your knowledge, touching the present service. The counsel of the state, your own and your fellows, you shall keep secret during the course of the impaneled grand jury's investigation and deliberations, unless called on in a court of justice to make disclosures. You shall present no person through malice, hatred, or ill will, nor shall you leave any person unpresented through fear, favor, or affection, or for any reward or hope thereof; but in all your presentments you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding.

Source:G.S.1873, c. 58, § 395, p. 814; R.S.1913, § 9034; C.S.1922, § 10058; C.S.1929, § 29-1404; R.S.1943, § 29-1404; Laws 2016, LB1000, § 6.    


Annotations

29-1405. Jurors; oath or affirmation; form.

Thereupon the following oath or affirmation shall be administered to the other grand jurors: The same oath which A. B., your foreman, hath now taken before you on his part, you, and each of you, shall well and truly observe and keep on your respective parts.

Source:G.S.1873, c. 58, § 396, p. 814; R.S.1913, § 9035; C.S.1922, § 10059; C.S.1929, § 29-1405; R.S.1943, § 29-1405.


29-1406. Judge; charge to jury; instruction as to powers and duties.

(1) The grand jury, after being sworn, shall be charged as to their duty by the judge, who shall call their attention particularly to the obligation of secrecy which their oaths impose, and to such offenses as he or she is by law required to specially charge.

(2) Upon impanelment of each grand jury, the court shall give to such grand jury adequate and reasonable written notice of and shall assure that the grand jury reasonably understands the nature of:

(a) Its duty to inquire into offenses against the criminal laws of the State of Nebraska alleged to have been committed or, in the case of a grand jury impaneled pursuant to subsection (4) of section 29-1401, its duty to inquire into offenses against the criminal laws of the State of Nebraska regarding the death of a person who has died while being apprehended or while in the custody of a law enforcement officer or detention personnel;

(b) Its right to call and interrogate witnesses;

(c) Its right to request the production of documents or other evidence;

(d) The subject matter of the investigation and the criminal statutes or other statutes involved, if these are known at the time the grand jury is impaneled;

(e) The duty of the grand jury by an affirmative vote of twelve or more members of the grand jury to determine, based on the evidence presented before it, whether or not there is probable cause for finding indictments and to determine the violations to be included in any such indictments;

(f) The requirement that the grand jury may not return an indictment in cases of perjury unless at least two witnesses to the same fact present evidence establishing probable cause to return such an indictment; and

(g) In the case of a grand jury impaneled pursuant to subsection (4) of section 29-1401, if the grand jury returns a no true bill:

(i) The grand jury shall create a grand jury report with the assistance of the prosecuting attorney. The grand jury report shall briefly provide an explanation of the grand jury's findings and any recommendations the grand jury determines to be appropriate based upon the grand jury's investigation and deliberations; and

(ii) The no true bill and the grand jury report shall be filed with the court, where they shall be available for public review, along with the grand jury transcript provided for in subsection (3) of section 29-1407.01.

Source:G.S.1873, c. 58, § 397, p. 814; R.S.1913, § 9036; C.S.1922, § 10060; C.S.1929, § 29-1406; R.S.1943, § 29-1406; Laws 1979, LB 524, § 1;    Laws 2016, LB1000, § 7;    Laws 2020, LB881, § 15.    


Annotations

29-1407. Grand jury; duties.

After the charge of the court, the grand jury shall retire with the officer appointed to attend to them, and shall proceed to inquire of and present all offenses whatever committed within the limits of the county in and for which they were impaneled and sworn or affirmed.

Source:G.S.1873, c. 58, § 398, p. 814; R.S.1913, § 9037; C.S.1922, § 10061; C.S.1929, § 29-1407; Laws 1939, c. 18, § 20, p. 111; C.S.Supp.,1941, § 29-1407; R.S.1943, § 29-1407; Laws 1959, c. 118, § 4, p. 450; Laws 1979, LB 524, § 2.    


Annotations

29-1407.01. Grand jury proceedings; reporter; duties; transcript; exhibits; statements; availability.

(1) A certified or authorized reporter shall be present at all grand jury sessions. All grand jury proceedings and testimony from commencement to adjournment shall be reported. Except as otherwise provided in this section, no copies of transcripts of, or exhibits from, such proceedings shall be made available.

(2) Except as provided in subsection (3) of this section:

(a) The reporter's stenography notes and tape recordings shall be preserved and sealed and any transcripts which may be prepared shall be preserved, sealed, and filed with the court;

(b) No release or destruction of the notes or transcripts shall occur without prior court approval; and

(c) No copies of such transcript or exhibits shall be made available.

(3)(a) This subsection applies to a grand jury impaneled pursuant to subsection (4) of section 29-1401.

(b) A transcript, including any exhibits of the grand jury proceedings, and a copy of such transcript and copies of such exhibits shall be prepared at court expense and shall be filed with the court. Such transcript shall not include the names of grand jurors or their deliberations.

(c) If the grand jury returns a no true bill, a copy of the transcript, including a copy of any exhibits, shall be available for public review upon written request to the clerk of the district court. Such review shall be made at a reasonable time set by the clerk of the district court. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.

(d)(i) If the grand jury returns a true bill, once a trial court is assigned and the criminal case docketed, any of the parties to the criminal case, within five days of the criminal case being docketed, may file a motion for a protective order requesting a hearing before the trial court to request a delay of the public review of the transcript, including any exhibits, of the grand jury proceedings. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.

(ii) If after a hearing the trial court grants the request for a protective order, then any public review of the transcript, including any exhibits, of the grand jury proceedings shall not take place until the conclusion of the criminal prosecution. Conclusion of the criminal prosecution means an acquittal, a dismissal, or, if there is a conviction, when the direct appeal process has concluded. Once the criminal prosecution has concluded, a copy of the transcript, including a copy of any exhibits, shall be available for public review upon written request to the clerk of the district court. Such review shall be made at a reasonable time set by the clerk of the district court. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.

(iii) If after a hearing the trial court denies the request for a protective order, then a copy of the transcript, including a copy of any exhibits, shall be available for public review once the trial court's order is filed and upon written request to the clerk of the district court. Such review shall be made at a reasonable time set by the clerk of the district court. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.

(iv) If no party to the criminal case files a motion for a protective order within the time provided in subdivision (3)(d)(i) of this section, then a copy of the transcript, including a copy of any exhibits, shall be available for public review upon written request to the clerk of the district court. Such review shall be made at a reasonable time set by the clerk of the district court. Except as otherwise provided in this subdivision, no copies of such transcript or exhibits shall be made available.

(4) Upon application by the prosecutor or by any witness after notice to the prosecutor, the court, for good cause, may enter an order to furnish to that witness a transcript of his or her own grand jury testimony or exhibits relating thereto.

(5) Any witness summoned to testify before a grand jury, or an attorney for such witness with the witness's written approval, shall be entitled, prior to testifying, to examine and copy at the witness's expense any statement in the possession of the prosecuting attorney or the grand jury which such witness has made that relates to the subject matter under inquiry by the grand jury. If a witness is proceeding in forma pauperis, he or she shall be furnished, upon request, a copy of such transcript and shall not pay a fee.

Source:Laws 1979, LB 524, § 3;    Laws 2016, LB1000, § 8;    Laws 2018, LB193, § 51;    Laws 2020, LB881, § 16.    


Annotations

29-1408. County attorney; powers; special prosecutor; when appointed.

The county attorney or the assistant county attorney shall be allowed at all times to appear before the grand jury for the purpose of giving information relative to any matter cognizable by such jury, or giving such jury advice upon any legal matter the jury may require, and such county attorney or assistant county attorney may interrogate witnesses before the jury when the grand jurors, the county attorney, or the assistant county attorney shall deem it necessary; except that no person shall be permitted to remain in the room with such jury while the grand jurors are expressing their views or giving their votes on any matter before the jury; Provided, whenever it shall be made to appear to the judge or judges of the district court that investigation should be made regarding official acts of county officials, the foreman shall forthwith notify the Governor of the state, who shall forthwith appoint a special prosecutor to appear and act in the place of the county attorney or the assistant county attorney in all matters relating thereto before such grand jury in like manner as though county attorney; and the county attorney or the assistant county attorney shall be excluded from the presence of the grand jury during all proceedings which relate to the subject matter for which the special prosecutor was appointed; except that nothing in this section shall prevent the county attorney or assistant county attorney from appearing as a witness before a grand jury for which a special prosecutor has been appointed.

Source:G.S.1873, c. 58, § 399, p. 814; R.S.1913, § 9038; C.S.1922, § 10062; C.S.1929, § 29-1408; Laws 1939, c. 18, § 21, p. 112; C.S.Supp.,1941, § 29-1408; R.S.1943, § 29-1408; Laws 1980, LB 635, § 1.


29-1409. Subpoenas; issuance; advisement of rights; form; effect.

(1) Whenever required by the grand jury, or the prosecuting attorney, the clerk of the court in which such jury is impaneled shall issue subpoenas and other process to bring witnesses to testify before such grand jury.

(2) At the option of the prosecuting attorney, a grand jury subpoena may contain an advisement of rights. If the prosecuting attorney determines that an advisement is necessary, the grand jury subpoena shall contain the following prominently displayed on the front of the subpoena:

NOTICE

(a) You have the right to retain an attorney to represent you and to advise you regarding your grand jury appearance.

(b) Anything you say to the grand jury may be used against you in a court of law.

(c) You have the right to refuse to answer questions if you feel the answers would tend to incriminate you or to implicate you in any illegal activity.

(d) If you cannot afford or obtain an attorney, you may consult with the public defender's office, or request the court to appoint an attorney to represent you.

(3) Any witness who is not advised of his or her rights pursuant to subsection (2) of this section shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she testifies or any evidence he or she produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him or her in any court.

Source:G.S.1873, c. 58, § 400, p. 815; R.S.1913, § 9039; C.S.1922, § 10063; C.S.1929, § 29-1409; R.S.1943, § 29-1409; Laws 1979, LB 524, § 4.    


29-1410. Witness; oath or affirmation; administration.

Before any witness shall be examined by the grand jury, an oath or affirmation shall be administered to him by the clerk truly to testify of such matters and things as may be lawfully inquired of before the jury, a certificate whereof the clerk shall make and deliver to such witness, who shall present the same to the foreman of the grand jury when he is admitted for examination.

Source:G.S.1873, c. 58, § 401, p. 815; R.S.1913, § 9040; C.S.1922, § 10064; C.S.1929, § 29-1410; R.S.1943, § 29-1410.


Annotations

29-1410.01. Request to testify or appear; denial; how treated.

Any person may approach the prosecuting attorney or the grand jury and request to testify or retestify in an inquiry before a grand jury or to appear before a grand jury. The prosecuting attorney or the grand jury shall keep a record of all denials of such requests to that prosecuting attorney or grand jury, including the reasons for not allowing such person to testify or appear. If the person making such request is dissatisfied with the decision of the prosecuting attorney or the grand jury, such person may petition the court for hearing on the denial by the prosecuting attorney or the grand jury. If the court grants the hearing, then the court may permit the person to testify or appear before the grand jury if the court finds that such testimony or appearance would serve the interests of justice.

Source:Laws 1979, LB 524, § 5.    


29-1411. Witness; privilege against self-incrimination; immunity; right to counsel; refusal to answer; procedure.

(1) In any proceeding before the grand jury, if the prosecuting attorney has written notice in advance of the appearance of a witness that such witness intends to exercise his or her privilege against self-incrimination, such witness shall not be compelled to appear before the grand jury unless a grant of immunity has been obtained.

(2) Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of such grand jury, and counsel may be present in the grand jury room with his or her client during such questioning. Counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his or her client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury.

(3) If any witness appearing before a grand jury shall refuse to answer any interrogatories during the course of his or her examination, the fact shall be communicated to the court in writing, in which the question refused to be answered shall be stated, together with the excuse for the refusal, if any be given by the person interrogated. The court shall thereupon determine whether the witness is bound to answer or not, and the grand jury shall be immediately informed of the decision.

Source:G.S.1873, c. 58, § 402, p. 815; R.S.1913, § 9041; C.S.1922, § 10065; C.S.1929, § 29-1411; R.S.1943, § 29-1411; Laws 1979, LB 524, § 6.    


29-1412. Witness; refusal to testify or provide other information; contempt; right to counsel; penalty; hearing; confinement; limitation.

(1)(a) Whenever a witness in any proceeding before any grand jury refuses, without just cause shown, to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording, or other material, the prosecuting attorney may submit an application to the court for an order directing the witness to show why the witness should not be held in contempt. After submission of such application and a hearing at which the witness may be represented by counsel, the court may, if the court finds that such refusal was without just cause, hold the witness in contempt and order the witness to be confined or to pay a fine of not to exceed five hundred dollars. Such confinement shall continue until such time as the witness is willing to give such testimony or provide such information, except that the court may release the witness from confinement if the court determines that further confinement will not cause the witness to give such testimony or provide such information. No period of such confinement shall exceed the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, and in no event shall such confinement exceed six months.

(b) If a witness has been confined in accordance with subsection (1)(a) of this section, he or she may, upon petition filed with the court, request a hearing to be held within ten days to review the contempt order at which hearing he or she shall have the right to be represented by counsel. The court, at the hearing, may rescind, modify, or affirm the order.

(c) In any proceeding conducted under this section, counsel may be appointed for a person financially unable to obtain adequate assistance.

(2) No person who has been confined or fined by a court for refusal to testify or provide other information concerning any criminal incident or incidents in any proceeding before a grand jury impaneled before any district court shall again be confined or fined for a subsequent refusal to testify or provide other information concerning the same criminal incident or incidents before any grand jury.

Source:G.S.1873, c. 58, § 403, p. 815; R.S.1913, § 9042; C.S.1922, § 10066; C.S.1929, § 29-1412; R.S.1943, § 29-1412; Laws 1979, LB 524, § 7.    


29-1412.01. Grand jury; subpoena to testify or produce documents; not required to comply; when.

No person subpoenaed to testify or to produce books, papers, documents, or other objects in any proceeding before any grand jury shall be required to testify or to produce such objects, or be confined as provided in section 29-1412, for his or her failure to so testify or produce such object if, upon filing a motion and, upon an evidentiary hearing before the court which issued such subpoena or a court having jurisdiction under this section, the court finds that:

(1) A primary purpose or effect of requiring such person to so testify or to produce such objects before the grand jury is or will be to secure testimony for trial for which the defendant has already been charged by information, indictment, or criminal complaint;

(2) Compliance with a subpoena would be unreasonable or oppressive;

(3) A primary purpose of the issuance of the subpoena is to harass the witness;

(4) The witness has already been confined or fined under this section for his or her refusal to testify before any grand jury investigating the same transaction, set of transactions, event, or events; or

(5) The witness has not been advised of his or her rights as specified in subsection (2) of section 29-1409.

Source:Laws 1979, LB 524, § 8.    


29-1413. Vacancy; how filled.

In case of the sickness, death, discharge or nonattendance of any grand juror, after the grand jury shall be affirmed or sworn, it shall be lawful for the court, at its discretion to cause another to be sworn or affirmed in his stead.

Source:G.S.1873, c. 58, § 404, p. 815; R.S.1913, § 9043; C.S.1922, § 10067; C.S.1929, § 29-1413; R.S.1943, § 29-1413.


29-1414. Disclosure of indictment; when prohibited.

No grand juror or officer of the court shall disclose that an indictment has been found against any person not in custody or under bail, except by the issuing of process, until the indictment is filed.

Source:G.S.1873, c. 58, § 406, p. 815; R.S.1913, § 9044; C.S.1922, § 10068; C.S.1929, § 29-1414; R.S.1943, § 29-1414; Laws 2018, LB193, § 52.    


29-1415. Disclosure of juror's vote or opinion; prohibited.

No grand juror shall be allowed to state or testify in any court in what manner he or other members of the grand jury voted on any question before them, or what opinion was expressed by any juror in relation to such question.

Source:G.S.1873, c. 58, § 407, p. 815; R.S.1913, § 9045; C.S.1922, § 10069; C.S.1929, § 29-1415; R.S.1943, § 29-1415.


29-1416. Indictment; how found; endorsement; no true bill; effect.

(1) At least twelve of the grand jurors must concur in the finding of an indictment; when so found the foreman shall endorse on such indictment the words A true bill, and subscribe his or her name thereto as foreman.

(2) Once a grand jury has returned a no true bill based upon a transaction, set of transactions, event, or events, a grand jury inquiry into the same transaction or events shall not be initiated unless the court finds, upon a proper showing by the prosecuting attorney, that the prosecuting attorney has discovered additional evidence relevant to such inquiry.

Source:G.S.1873, c. 58, § 408, p. 816; R.S.1913, § 9046; C.S.1922, § 10070; C.S.1929, § 29-1416; R.S.1943, § 29-1416; Laws 1979, LB 524, § 9.    


Annotations

29-1417. County jail; examination; report.

The grand jury may at each term of the court at which they may be in attendance, visit the county jail, and examine and report its condition, as required by law.

Source:G.S.1873, c. 58, § 409, p. 816; R.S.1913, § 9047; C.S.1922, § 10071; C.S.1929, § 29-1417; R.S.1943, § 29-1417; Laws 1959, c. 118, § 5, p. 451.


Cross References

29-1418. Indictments; presentation; filing; finding of probable cause; dismissal; motions.

(1) Indictments returned by a grand jury shall be presented by their foreman to the court and shall be filed with the clerk, who shall endorse thereon the day of their filing and shall enter each case upon the register of actions and the date when the parties indicted have been arrested.

(2) Any grand jury may indict a person for an offense when the evidence before such grand jury provides probable cause to believe that such person committed such offense.

(3) The district court before which the indicted defendant is to be tried shall dismiss any indictment of the grand jury if such district court finds, upon the filing of a motion by the indicted defendant based upon the grand jury record without argument or further evidence, that the grand jury finding of probable cause is not supported by the record.

(4) Any other motions testing the validity of the indictment may be heard by the court based only on the record and argument of counsel, unless there is cause shown for the need for additional evidence.

Source:G.S.1873, c. 58, § 410, p. 816; R.S.1913, § 9048; C.S.1922, § 10072; C.S.1929, § 29-1418; R.S.1943, § 29-1418; Laws 1979, LB 524, § 10;    Laws 2018, LB193, § 53.    


Annotations

29-1419. Trial of indictments; recognizances; undisposed indictments; trial by special prosecutor; when.

The court shall assign such indictments for trial at as early a time in such term as is practicable. And the recognizances of parties and witnesses shall, in all such causes, be taken for their appearance at the time so assigned; and in case of the continuance of any cause to the next term of court, such recognizances shall be for the appearance of the parties and witnesses on such day thereof as the court may direct. At the end of the term the clerk shall deliver the indictments undisposed of to the prosecuting attorney for safekeeping; Provided, however, that where a special prosecutor shall have been appointed by the Governor of the state for the assistance of such grand jury, then the trials of indictments growing out of matters concerning which he has been appointed shall be conducted by such special prosecutor so appointed in all respects as though such special prosecutor were such county attorney; and all provisions relating to the acts of county attorneys shall be deemed to apply to such special prosecutor.

Source:G.S.1873, c. 58, § 411, p. 816; R.S.1913, § 9049; C.S.1922, § 10073; C.S.1929, § 29-1419; Laws 1939, c. 18, § 22, p. 112; C.S.Supp.,1941, § 29-1419; R.S.1943, § 29-1419.


Annotations

29-1420. Report; made public; when; transfer of evidence.

(1) Except as provided in subdivision (2)(g) of section 29-1406, the report of the grand jury shall not be made public except when the report is filed, including indictments, or when required by statute or except that all of the report or a portion thereof may be released if the judge of the district court finds that such a release will exonerate a person or persons who have requested such a release.

(2) A district judge under whose direction a grand jury has been impaneled may, upon good cause shown, transfer to a court of competent jurisdiction in another county or jurisdiction any evidence gathered by the grand jury that offenses have been committed in such other county or jurisdiction.

Source:Laws 1979, LB 524, § 11;    Laws 1990, LB 1246, § 11;    Laws 2016, LB1000, § 9.    


Annotations

29-1501. Indictment; when sufficient; irregularities.

No indictment shall be deemed invalid, nor shall the trial, judgment or other proceedings be stayed, arrested or in any manner affected (1) by the omission of the words with force and arms, or any words of similar import; (2) by omitting to charge any offense to have been contrary to a statute or statutes; or (3) for the omission of the words as appears by the record nor for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense; nor for stating the time imperfectly; nor for want of a statement of the value or price of any matter or thing, or the amount of damages, or injury in any case where the value or price, or the amount of damages or injury is not of the essence of the offense; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor that dates and numbers are represented by figures; nor for an omission to allege that the grand jurors were impaneled, sworn or charged; nor for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime or person charged; nor for want of the averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.

Source:G.S.1873, c. 58, § 412, p. 816; R.S.1913, § 9050; C.S.1922, § 10074; C.S.1929, § 29-1501; R.S.1943, § 29-1501.


Cross References

Annotations

29-1502. Variance in name or description; effect.

Whenever on trial of any indictment for any offense there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof in the given name or surname, or both given name and surname, or other description whatever of any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case or may be prejudicial to the defendant.

Source:G.S.1873, c. 58, § 413, p. 817; R.S.1913, § 9051; C.S.1922, § 10075; C.S.1929, § 29-1502; R.S.1943, § 29-1502; Laws 1999, LB 72, § 3.    


Annotations

29-1503. Forgery; instruments; how described.

In any indictment for falsely making, altering, forging, printing, photographing, uttering, disposing of or putting off any instrument, it shall be sufficient to set forth the purport and value thereof.

Source:G.S.1873, c. 58, § 414, p. 817; R.S.1913, § 9052; C.S.1922, § 10076; C.S.1929, § 29-1503; R.S.1943, § 29-1503.


Annotations

29-1504. Offenses other than forgery; instruments; how described.

In all cases other than those mentioned in section 29-1503, whenever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part of writing, print or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof.

Source:G.S.1873, c. 58, § 416, p. 817; R.S.1913, § 9053; C.S.1922, § 10077; C.S.1929, § 29-1504; R.S.1943, § 29-1504.


29-1505. Counterfeiting; instruments or means; how described.

In any indictment for engraving or making the whole or any part of any instrument, matter or thing, or for using or having the unlawful custody or possession of any plate or other material upon which the whole or any part of any instrument, matter or thing shall have been engraved or made, or for having the unlawful custody or possession of any paper upon which the whole or any part of any instrument, matter or thing shall have been made or printed, it shall be sufficient to describe such instruments, matter or thing by any name or designation by which the same may be usually known.

Source:G.S.1873, c. 58, § 415, p. 817; R.S.1913, § 9054; C.S.1922, § 10078; C.S.1929, § 29-1505; R.S.1943, § 29-1505.


29-1506. Intent to defraud; how alleged; proof.

It shall be sufficient in any indictment where it shall be necessary to allege an intent to defraud, to allege that the party accused did the act with intent to defraud without alleging an intent to defraud any particular person or body corporate, and on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with intent to defraud.

Source:G.S.1873, c. 58, § 417, p. 818; R.S.1913, § 9055; C.S.1922, § 10079; C.S.1929, § 29-1506; R.S.1943, § 29-1506.


Annotations

29-1507. Ownership by more than one person; how alleged.

When any offense is committed upon or in relation to any property belonging to several partners, limited liability company members, or owners, and an indictment for such offense is returned, the allegation of ownership therein shall be sufficient if it alleges that such property belonged to any one or more of such partners, limited liability company members, or owners, without naming all of them.

Source:G.S.1873, c. 58, § 418, p. 818; R.S.1913, § 9056; C.S.1922, § 10080; C.S.1929, § 29-1507; R.S.1943, § 29-1507; Laws 1993, LB 121, § 191;    Laws 1994, LB 884, § 55.    


Annotations

29-1508. Joinder of offenses with larceny; finding of guilty on any count.

An indictment for larceny may contain also a count for obtaining the same property by false pretenses, or a count for embezzlement thereof, and for receiving or concealing the same property, knowing it to have been stolen; and the jury may convict of either offense, and may find all or any of the persons indicted guilty of either of the offenses charged in the indictment.

Source:G.S.1873, c. 58, § 419, p. 818; R.S.1913, § 9057; C.S.1922, § 10081; C.S.1929, § 29-1508; R.S.1943, § 29-1508.


Annotations

29-1509. Money; how described; proof.

In every indictment in which it shall be necessary to make any averment as to any money or bank bills or notes, United States treasury notes, postal and fractional currency, or other bills, bonds or notes, issued by lawful authority and intended to pass and circulate as money, it shall be sufficient to describe such money or bills, notes, currency or bonds simply as money, without specifying any particular coin, note, bill or bond; and such allegation shall be sustained by proof of any amount of coin or of any such note, bill, currency or bond, although the particular species of coin of which such amount was composed, or the particular nature of such note, bill, currency or bond shall not be proved.

Source:G.S.1873, c. 58, § 420, p. 818; R.S.1913, § 9058; C.S.1922, § 10082; C.S.1929, § 29-1509; R.S.1943, § 29-1509.


Annotations

29-1510. Election cases; allegation of legality; sufficiency.

When an offense shall be committed in relation to any election and an indictment for such offense is returned, the allegation of the legality and regularity of such election shall be sufficient if it alleges that such election was authorized by law, without stating the names of the officers holding the election, or the persons voted for, or the offices to be filled at such election.

Source:G.S.1873, c. 58, § 421, p. 818; R.S.1913, § 9059; C.S.1922, § 10083; C.S.1929, § 29-1510; R.S.1943, § 29-1510.


29-1511. Perjury and subornation; allegations; sufficiency.

In every indictment for perjury or subornation of perjury it shall be sufficient to set forth the substance of the offense charged upon the defendant, and before what court the oath or affirmation was taken, averring such court or authority to have full power to administer the same, together with the proper averment or counts to falsify the matter or matters wherein the perjury is assigned, without setting forth any part of any record or proceeding, in law or equity, other than as aforesaid, and without setting forth the commission or authority of the court, or other authority before whom the perjury was committed.

Source:G.S.1873, c. 58, § 422, p. 818; R.S.1913, § 9060; C.S.1922, § 10084; C.S.1929, § 29-1511; R.S.1943, § 29-1511.


Annotations

29-1512. Manslaughter; allegations; sufficiency.

In any indictment for manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death was caused; but it shall be sufficient to charge that the defendant did unlawfully kill and slay the deceased.

Source:G.S.1873, c. 58, § 425, p. 819; R.S.1913, § 9061; C.S.1922, § 10085; C.S.1929, § 29-1512; R.S.1943, § 29-1512.


Annotations

29-1601. Prosecutions on information; authorized.

The several courts of this state shall possess and may exercise the same power and jurisdiction to hear, try and determine prosecutions upon information, for crimes, misdemeanors and offenses, to issue writs and process, and do all other acts therein, as they possess and may exercise in cases of the like prosecutions upon indictments.

Source:Laws 1885, c. 108, § 1, p. 397; R.S.1913, § 9062; C.S.1922, § 10086; C.S.1929, § 29-1601; R.S.1943, § 29-1601.


Annotations

29-1602. Information; by whom filed and subscribed; names of witnesses; endorsement.

All informations shall be filed in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant. The prosecuting attorney shall subscribe his or her name thereto and endorse thereon the names of the witnesses known to him or her at the time of filing. After the information has been filed, the prosecuting attorney shall endorse on the information the names of such other witnesses as shall then be known to him or her as the court in its discretion may prescribe, except that if a notice of aggravation is contained in the information as provided in section 29-1603, the prosecuting attorney may endorse additional witnesses at any time up to and including the thirtieth day prior to the trial of guilt.

Source:Laws 1885, c. 108, § 2, p. 397; R.S.1913, § 9063; Laws 1915, c. 164, § 1, p. 335; C.S.1922, § 10087; C.S.1929, § 29-1602; R.S.1943, § 29-1602; Laws 2002, Third Spec. Sess., LB 1, § 4;    Laws 2015, LB268, § 11;    Referendum 2016, No. 426.

Note: The changes made to section 29-1602 by Laws 2015, LB 268, section 11, have been omitted because of the vote on the referendum at the November 2016 general election.


Annotations

29-1603. Allegations; how made; joinder of offenses; rights of defendant.

(1) All informations shall be in writing and signed by the county attorney, complainant, or some other person, and the offenses charged therein shall be stated with the same fullness and precision in matters of substance as is required in indictments in like cases.

(2)(a) Any information charging a violation of section 28-303 and in which the death penalty is sought shall contain a notice of aggravation which alleges one or more aggravating circumstances, as such aggravating circumstances are provided in section 29-2523. The notice of aggravation shall be filed as provided in section 29-1602. It shall constitute sufficient notice to describe the alleged aggravating circumstances in the language provided in section 29-2523.

(b) The state shall be permitted to add to or amend a notice of aggravation at any time up to and including the thirtieth day prior to the trial of guilt.

(c) The existence or contents of a notice of aggravation shall not be disclosed to the jury until after the verdict is rendered in the trial of guilt.

(3) Different offenses and different degrees of the same offense may be joined in one information, in all cases in which the same might by different counts be joined in one indictment; and in all cases a defendant or defendants shall have the same right, as to proceedings therein, as the defendant or defendants would have if prosecuted for the same offense upon indictment.

Source:Laws 1885, c. 108, § 3, p. 397; R.S.1913, § 9064; C.S.1922, § 10088; C.S.1929, § 29-1603; R.S.1943, § 29-1603; Laws 2002, Third Spec. Sess., LB 1, § 5;    Laws 2011, LB669, § 22;    Laws 2015, LB268, § 12;    Referendum 2016, No. 426.

Note: The changes made to section 29-1603 by Laws 2015, LB 268, section 12, have been omitted because of the vote on the referendum at the November 2016 general election.


Annotations

29-1604. Information; procedure; law applicable.

The provisions of the criminal code in relation to indictments, and all other provisions of law, applying to prosecutions upon indictments to writs and process therein, and the issuing and service thereof, to motions, pleadings, trials and punishments or the execution of any sentence, and to all other proceedings in cases of indictments, whether in the court of original or appellate jurisdiction, shall in the same manner and to the same extent, as nearly as may be, apply to informations, and all prosecutions and proceedings thereon.

Source:Laws 1885, c. 108, § 4, p. 398; R.S.1913, § 9065; C.S.1922, § 10089; C.S.1929, § 29-1604; R.S.1943, § 29-1604.


Annotations

29-1605. Commitment and bail; law applicable.

Any person who may, according to law, be committed to jail or become recognized or held to bail with sureties for his appearance in court to answer to any indictment, may in like manner be committed to jail or become recognized and held to bail for his appearance, to answer to any information or indictment, as the case may be.

Source:Laws 1885, c. 108, § 5, p. 398; R.S.1913, § 9066; C.S.1922, § 10090; C.S.1929, § 29-1605; R.S.1943, § 29-1605.


29-1606. Persons committed or held to bail; preliminary hearing; failure of county attorney to file information; written statement required; power of court.

It shall be the duty of the county attorney of the proper county to inquire into and make full examination of all the facts and circumstances connected with any case on preliminary examination, as provided by law, touching the commission of any offense wherein the offender shall be committed to jail, or become recognized or held to bail. If the prosecuting attorney shall determine in any such case that an information ought not to be filed, he shall make, subscribe, and file with the clerk of the court a statement in writing, containing his reasons, in fact and in law, for not filing an information in such case; and such statement shall be filed at and during the term of court at which the offender shall be held for his appearance; Provided, in such case such court may examine the statement, together with the evidence filed in the case, and if, upon such examination, the court shall not be satisfied with the statement, the county attorney shall be directed by the court to file the proper information and bring the case to trial.

Source:Laws 1885, c. 108, § 6, p. 398; R.S.1913, § 9067; C.S.1922, § 10091; C.S.1929, § 29-1606; R.S.1943, § 29-1606.


Annotations

29-1607. Information; preliminary examination; required; when.

No information shall be filed against any person for any offense until such person shall have had a preliminary examination therefor, as provided by law, unless such person shall waive his or her right to such examination, except as otherwise provided in the Uniform Criminal Extradition Act. The preliminary examination shall be conducted as soon as the nature and the circumstances of the case will permit.

Source:Laws 1885, c. 108, § 8, p. 399; R.S.1913, § 9068; C.S.1922, § 10092; C.S.1929, § 29-1607; Laws 1935, c. 66, § 27, p. 231; C.S.Supp.,1941, § 29-1607; R.S.1943, § 29-1607; Laws 1972, LB 1032, § 175;    Laws 1980, LB 600, § 1.


Cross References

Annotations

29-1608. Indictment, complaint, or information against corporation; summons; service; return day; procedure.

Whenever an indictment is presented, or complaint or information filed against a corporation, a summons commanding the sheriff to notify the accused thereof, and returnable on the third day after its date, shall issue on the praecipe of the prosecuting attorney. Such summons, together with a copy of the indictment, information, or complaint, shall be served and returned in the manner provided for service of summons upon such corporation in a civil action. The corporation on or before the return day of a summons duly served may appear by one of its officers, or by counsel, and answer to the indictment, information, or complaint by motion, demurrer, or plea. Upon its failure to make such appearance and answer, the court clerk shall enter a plea of not guilty; and upon such appearance being made, or plea entered, the corporation shall be deemed thenceforth continuously present in the court until the case is finally disposed of.

Source:Laws 1903, c. 140, § 1, p. 646; R.S.1913, § 9069; C.S.1922, § 10093; C.S.1929, § 29-1608; R.S.1943, § 29-1608; Laws 1983, LB 447, § 44.    


29-1701. Warrant and arrest on indictment or presentment.

A warrant may be issued in term time or in vacation of the court, on an indictment found or presentment made in any county, and when directed to the sheriff of the county where such indictment was found, or presentment made, it shall be lawful for such officer to pursue and arrest the accused named in such warrant, in any county of this state where he may be found, and commit him to jail, or hold him to bail, as provided in this code.

Source:G.S.1873, c. 58, § 426, p. 819; R.S.1913, § 9070; C.S.1922, § 10094; C.S.1929, § 29-1701; R.S.1943, § 29-1701.


29-1702. Accused a nonresident of the county; how arrested.

When the party accused shall reside out of the county in which such indictment was found, it shall be lawful to issue a warrant thereon, directed to the sheriff of the county where the accused shall reside or may be found. It shall be the duty of such officer to arrest the accused and convey him to the county from which such writ was issued, and there commit him to the jail of such county, or hold him to bail, as provided in section 29-1701.

Source:G.S.1873, c. 58, § 427, p. 819; R.S.1913, § 9071; C.S.1922, § 10095; C.S.1929, § 29-1702; R.S.1943, § 29-1702.


Annotations

29-1703. Misdemeanors; recognizance for appearance; authority of sheriff to take.

When any sheriff or other officer shall be charged with the execution of a warrant issued on any indictment for a misdemeanor, he shall, during the vacation of the court from which the writ issued, have authority to take the recognizance of the person so indicted, together with sufficient sureties, resident and freeholders in the county from which such writ issued, in a sum of not less than fifty dollars nor more than five hundred dollars, conditioned for the appearance of such person on the first day of the next term of such court.

Source:G.S.1873, c. 58, § 428, p. 820; R.S.1913, § 9072; C.S.1922, § 10096; C.S.1929, § 29-1703; R.S.1943, § 29-1703.


Annotations

29-1704. Misdemeanors; recognizance; return.

The sheriff or other officer shall return such writ according to the command thereof, with the name of the surety or sureties, together with the recognizance taken as aforesaid; and the recognizance so taken and returned shall be filed and recorded by the clerk of the court to which the same was returned, and may be proceeded on in the same way as if such recognizance had been taken in the court during term time.

Source:G.S.1873, c. 58, § 429, p. 820; R.S.1913, § 9073; C.S.1922, § 10097; C.S.1929, § 29-1704; R.S.1943, § 29-1704.


29-1705. Felonies; recognizance ordered by court; authority.

When any person has been indicted for a felony and the person so indicted has not been arrested or recognized to appear before the court, the court may make an entry of the cause upon the record and may order the amount in which the party indicted may be recognized for his or her appearance by any officer charged with the duty of arresting him or her.

Source:G.S.1873, c. 58, § 430, p. 820; R.S.1913, § 9074; C.S.1922, § 10098; C.S.1929, § 29-1705; R.S.1943, § 29-1705; Laws 2018, LB193, § 54.    


Annotations

29-1706. Felonies; recognizance; amount; endorsement on warrant.

The clerk issuing a warrant on such an indictment shall endorse thereon the sum in which the recognizance of the accused was ordered as aforesaid to be taken.

Source:G.S.1873, c. 58, § 431, p. 820; R.S.1913, § 9075; C.S.1922, § 10099; C.S.1929, § 29-1706; R.S.1943, § 29-1706.


29-1707. Felonies; recognizance; conditions; return.

The officer charged with the execution of the warrant aforesaid shall take the recognizance of the party accused in the sum ordered as aforesaid, together with good and sufficient sureties, conditioned for the appearance of the accused at the return of the writ before the court out of which the same issued.

Such officer shall return such recognizance to the court to be recorded and proceeded on as provided in this code.

Source:G.S.1873, c. 58, § 432, p. 820; R.S.1913, § 9076; C.S.1922, § 10100; C.S.1929, § 29-1707; R.S.1943, § 29-1707.


29-1708. Recognizance; signature; certificate.

All recognizances taken during vacation of any court, by any judge or other officer thereof authorized to take them, shall be signed by the parties and certified to by the officer taking the same.

Source:G.S.1873, c. 58, § 433, p. 820; R.S.1913, § 9077; C.S.1922, § 10101; C.S.1929, § 29-1708; R.S.1943, § 29-1708.


29-1709. Indicted convicts; custody.

Whenever any convict in a Department of Correctional Services adult correctional facility is indicted for any offense committed while confined therein, such convict shall remain in the custody of the warden of the facility subject to the order of the district court of the county where the facility in which such convict is confined is situated.

Source:G.S.1873, c. 58, § 434, p. 820; R.S.1913, § 9078; C.S.1922, § 10102; C.S.1929, § 29-1709; R.S.1943, § 29-1709; Laws 1993, LB 31, § 8.    


29-1801. Repealed. Laws 1959, c. 119, § 1.

29-1802. Indictment; record; service of copy on defendant; arraignment, when had.

The clerk of the district court shall, upon the filing of any indictment with him or her and after the person indicted is in custody or let to bail, cause the same to be entered on the record of the court, and in case of the loss of the original, such record or a certified copy thereof shall be used in place thereof upon the trial of the cause. Within twenty-four hours after the filing of an indictment for felony, and in every other case on request, the clerk shall make and deliver to the sheriff and the defendant or his or her counsel a copy of the indictment, and the sheriff on receiving such copy shall serve the same upon the defendant. No one shall be, without his or her assent, arraigned or called on to answer to any indictment until one day has elapsed after receiving in person or by counsel or having an opportunity to receive a copy of such indictment.

Source:G.S.1873, c. 58, § 436, p. 821; Laws 1877, § 1, p. 4; R.S.1913, § 9080; C.S.1922, § 10104; C.S.1929, § 29-1802; R.S.1943, § 29-1802; Laws 2018, LB193, § 55.    


Annotations

29-1803. Repealed. Laws 1965, c. 151, § 5.

29-1803.01. Repealed. Laws 1972, LB 1463, § 13.

29-1803.02. Repealed. Laws 1972, LB 1463, § 13.

29-1803.03. Repealed. Laws 1972, LB 1463, § 13.

29-1804. Transferred to section 23-3401.

29-1804.01. Repealed. Laws 1972, LB 1463, § 13.

29-1804.02. Repealed. Laws 1972, LB 1463, § 13.

29-1804.03. Transferred to section 23-3402.

29-1804.04. Transferred to section 29-3901.

29-1804.05. Transferred to section 29-3902.

29-1804.06. Repealed. Laws 1979, LB 241, § 7.

29-1804.07. Transferred to section 29-3903.

29-1804.08. Transferred to section 29-3904.

29-1804.09. Transferred to section 29-3907.

29-1804.10. Transferred to section 29-3908.

29-1804.11. Transferred to section 23-3403.

29-1804.12. Transferred to section 29-3905.

29-1804.13. Transferred to section 29-3906.

29-1804.14. Repealed. Laws 1990, LB 822, § 40.

29-1805. Repealed. Laws 1972, LB 1463, § 13.

29-1805.01. Transferred to section 29-3909.

29-1805.02. Transferred to section 29-3910.

29-1805.03. Transferred to section 29-3911.

29-1805.04. Transferred to section 29-3912.

29-1805.05. Transferred to section 29-3913.

29-1805.06. Transferred to section 29-3914.

29-1805.07. Transferred to section 29-3915.

29-1805.08. Transferred to section 29-3916.

29-1805.09. Transferred to section 29-3917.

29-1805.10. Transferred to section 29-3918.

29-1805.11. Repealed. Laws 1990, LB 822, § 40.

29-1806. Exceptions to indictment; time allowed.

The court shall allow the accused a reasonable time to examine the indictment and prepare exceptions thereto.

Source:G.S.1873, c. 58, § 438, p. 822; R.S.1913, § 9082; C.S.1922, § 10107; C.S.1929, § 29-1805; R.S.1943, § 29-1806.


29-1807. Exceptions to indictment; how made.

The accused may except to an indictment by (1) a motion to quash, (2) a plea in abatement, or (3) a demurrer.

Source:G.S.1873, c. 58, § 439, p. 822; R.S.1913, § 9083; C.S.1922, § 10108; C.S.1929, § 29-1806; R.S.1943, § 29-1807.


Annotations

29-1808. Motion to quash; when made.

A motion to quash may be made in all cases when there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged.

Source:G.S.1873, c. 58, § 440, p. 822; R.S.1913, § 9084; C.S.1922, § 10109; C.S.1929, § 29-1807; R.S.1943, § 29-1808.


Annotations

29-1809. Plea in abatement; when made.

A plea in abatement may be made when there is a defect in the record which is shown by facts extrinsic thereto.

Source:G.S.1873, c. 58, § 441, p. 822; R.S.1913, § 9085; C.S.1922, § 10110; C.S.1929, § 29-1808; R.S.1943, § 29-1809.


Annotations

29-1810. Demurrer to indictment; when made.

The accused may demur when the facts stated in the indictment do not constitute an offense punishable by the laws of this state, or when the intent is not alleged, when proof of it is necessary to make out the offense charged.

Source:G.S.1873, c. 58, § 442, p. 822; R.S.1913, § 9086; C.S.1922, § 10111; C.S.1929, § 29-1809; R.S.1943, § 29-1810.


Annotations

29-1811. Indictment defective; accused committed or held to bail.

When a motion to quash, or a plea in abatement, has been adjudged in favor of the accused, he may be committed or held to bail in such sum as the court may require for his appearance at the first day of the next term of said court.

Source:G.S.1873, c. 58, § 443, p. 822; R.S.1913, § 9087; C.S.1922, § 10112; C.S.1929, § 29-1810; R.S.1943, § 29-1811.


Annotations

29-1812. Defects; when considered waived.

The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue.

Source:G.S.1873, c. 58, § 444, p. 822; R.S.1913, § 9088; C.S.1922, § 10113; C.S.1929, § 29-1811; R.S.1943, § 29-1812.


Annotations

29-1813. Plea in abatement; misnomer; procedure.

If the accused shall plead in abatement that he is not indicted by his true name, he must plead what his true name is, which shall be entered on the minutes of the court, and after such entry the trial and all other proceedings on the indictment shall be had against him by that name, referring also to the name by which he is indicted, in the same manner in all respects as if he had been indicted by his true name.

Source:G.S.1873, c. 58, § 445, p. 822; R.S.1913, § 9089; C.S.1922, § 10114; C.S.1929, § 29-1812; R.S.1943, § 29-1813.


29-1814. Demurrer or reply to plea in abatement; when made.

To any plea in abatement the county attorney may demur if it is not sufficient in substance, or he may reply setting forth any facts which may show that there is no defect in the record as charged in the plea.

Source:G.S.1873, c. 58, § 446, p. 822; R.S.1913, § 9090; C.S.1922, § 10115; C.S.1929, § 29-1813; R.S.1943, § 29-1814.


Annotations

29-1815. Plea after overruling of demurrer to indictment.

After a demurrer to an indictment has been overruled, the accused may plead not guilty, or in bar.

Source:G.S.1873, c. 58, § 447, p. 822; R.S.1913, § 9091; C.S.1922, § 10116; C.S.1929, § 29-1814; R.S.1943, § 29-1815.


Cross References

Annotations

29-1816. Arraignment of accused; when considered waived; accused younger than eighteen years of age; move court to waive jurisdiction to juvenile court; findings for decision; transfer to juvenile court; effect; appeal; admission, confession, or statement made by the accused; inadmissible; when.

(1)(a) The accused may be arraigned in county court or district court:

(i) If the accused was eighteen years of age or older when the alleged offense was committed;

(ii) If the accused was younger than eighteen years of age and was fourteen years of age or older when an alleged offense punishable as a Class I, IA, IB, IC, ID, II, or IIA felony was committed; or

(iii) If the alleged offense is a traffic offense as defined in section 43-245.

(b) Arraignment in county court or district court shall be by reading to the accused the complaint or information, unless the reading is waived by the accused when the nature of the charge is made known to him or her. The accused shall then be asked whether he or she is guilty or not guilty of the offense charged. If the accused appears in person and by counsel and goes to trial before a jury regularly impaneled and sworn, he or she shall be deemed to have waived arraignment and a plea of not guilty shall be deemed to have been made.

(2) At the time of the arraignment, the county court or district court shall advise the accused, if the accused was younger than eighteen years of age at the time the alleged offense was committed, that the accused may move the county court or district court at any time not later than thirty days after arraignment, unless otherwise permitted by the court for good cause shown, to waive jurisdiction in such case to the juvenile court for further proceedings under the Nebraska Juvenile Code. This subsection does not apply if the case was transferred to county court or district court from juvenile court.

(3) For motions to transfer a case from the county court or district court to juvenile court:

(a) The county court or district court shall schedule a hearing on such motion within fifteen days. The customary rules of evidence shall not be followed at such hearing. The accused shall be represented by an attorney. The criteria set forth in section 43-276 shall be considered at such hearing. After considering all the evidence and reasons presented by both parties, the case shall be transferred to juvenile court unless a sound basis exists for retaining the case in county court or district court; and

(b) The county court or district court shall make a decision on such motion within thirty days after the hearing and shall set forth findings for the reason for its decision. If the county court or district court determines that the accused should be transferred to the juvenile court, the complete file in the county court or district court shall be transferred to the juvenile court and the complaint, indictment, or information may be used in place of a petition therein. The county court or district court making a transfer shall order the accused to be taken forthwith to the juvenile court and designate where the juvenile shall be kept pending determination by the juvenile court. The juvenile court shall then proceed as provided in the Nebraska Juvenile Code.

(4) An order granting or denying transfer of the case from county or district court to juvenile court shall be considered a final order for the purposes of appeal. Upon entry of an order, any party may appeal to the Court of Appeals within ten days. Such review shall be advanced on the court docket without an extension of time granted to any party except upon a showing of exceptional cause. Appeals shall be submitted, assigned, and scheduled for oral argument as soon as the appellee's brief is due to be filed. The Court of Appeals shall conduct its review in an expedited manner and shall render the judgment and opinion, if any, as speedily as possible. During the pendency of an appeal from an order transferring the case to juvenile court, the juvenile court may enter temporary orders in the best interests of the juvenile.

(5)(a) Except as provided in subdivision (5)(b) of this section, any admission, confession, or statement made by the accused to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of a motion to transfer a case from county court or district court to juvenile court shall be inadmissible in any criminal or civil proceeding.

(b) Subdivision (5)(a) of this section does not prevent any such admission, confession, or statement from being:

(i) Admissible in proceedings relating to such motion to transfer;

(ii) Admissible in disposition proceedings of such accused under the Nebraska Juvenile Code if the case is transferred to juvenile court;

(iii) Included in any presentence investigation report for such accused if the case is not transferred to juvenile court; and

(iv) Admissible in such case to impeach such accused during cross-examination if the accused testifies at trial or during juvenile court proceedings and such testimony is materially inconsistent with a prior statement made by the accused to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of the motion to transfer such case.

(6) When the accused was younger than eighteen years of age when an alleged offense was committed, the county attorney or city attorney shall proceed under section 43-274.

Source:G.S.1873, c. 58, § 448, p. 822; R.S.1913, § 9092; C.S.1922, § 10117; Laws 1925, c. 105, § 1, p. 294; C.S.1929, § 29-1815; R.S.1943, § 29-1816; Laws 1947, c. 103, § 1(1), p. 291; Laws 1974, LB 620, § 6;    Laws 1975, LB 288, § 2;    Laws 1987, LB 34, § 1;    Laws 2008, LB1014, § 16;    Laws 2010, LB800, § 5;    Laws 2014, LB464, § 4;    Laws 2015, LB265, § 1;    Laws 2015, LB605, § 59;    Laws 2017, LB11, § 1;    Laws 2021, LB307, § 1;    Laws 2024, LB184, § 1;    Laws 2024, LB1051, § 1.    
Effective Date: July 19, 2024


Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB184, section 1, with LB1051, section 1, to reflect all amendments.


Cross References

Annotations

29-1816.01. Arraignment of accused; record of proceedings; filing; evidence.

On the arraignment in the district court of any person accused of a felony, the court may require the official reporter of the court to make a record of the proceedings in such court incident to such arraignment and the disposition of the charge made against the accused including sentence in the event of conviction. The court may further require the court reporter to prepare a transcript of the report of such proceedings, authenticate the transcript with an appropriate certificate to be attached thereto, and cause the same to be filed in the office of the clerk of the court. Such transcript shall be kept in a special file and not removed from the office of the clerk of the district court, except on an order of a judge of the court expressly authorizing removal. In the event that the transcript is so made, authenticated and filed, it, or a duly certified copy thereof, shall become and be competent and lawful evidence and admissible as such in any of the courts of this state.

Source:Laws 1947, c. 103, § 1(2), p. 292; Laws 2018, LB193, § 56.    


29-1817. Plea in bar; allegations; reply to plea; how issues tried.

The accused may then offer a plea in bar to the indictment that he has before had judgment of acquittal, or been convicted, or been pardoned for the same offense; and to this plea the county attorney may reply that there is no record of such acquittal or conviction, or that there has been no pardon. On the trial of such issue to the court or to a jury, if the court desires to submit such issue to a jury, the accused must produce the record of such conviction or acquittal, or the pardon, and prove that he is the same person charged in the record or mentioned in the pardon; and shall be permitted to adduce such other evidence as may be necessary to establish the identity of the offense.

Source:G.S.1873, c. 58, § 449, p. 822; R.S.1913, § 9093; C.S.1922, § 10118; Laws 1927, c. 61, § 1, p. 222; C.S.1929, § 29-1816; R.S.1943, § 29-1817.


Annotations

29-1818. Plea in bar or abatement; verification by accused required.

No plea in bar or abatement shall be received by the court unless it be in writing, signed by the accused, and sworn to before some competent officer.

Source:G.S.1873, c. 58, § 450, p. 823; R.S.1913, § 9094; C.S.1922, § 10119; C.S.1929, § 29-1817; R.S.1943, § 29-1818.


Annotations

29-1819. Pleas of guilty, not guilty, or nolo contendere; when required; failure to plead; effect.

If the issue on the plea in bar be found against the defendant, or if upon arraignment the accused offers no plea in bar, he shall plead guilty, not guilty, or nolo contendere; but if he pleads evasively or stands mute, he shall be taken to have pleaded not guilty.

Source:G.S.1873, c. 58, § 451, p. 823; R.S.1913, § 9095; C.S.1922, § 10120; C.S.1929, § 29-1818; R.S.1943, § 29-1819; Laws 1953, c. 92, § 1, p. 264.


Annotations

29-1819.01. Plea of nolo contendere; acceptance by court; when.

The accused may, at any time before conviction, enter a plea of nolo contendere with the consent of the court. The court may refuse to accept the plea, and shall not accept the plea without first determining that the plea is made voluntarily with an understanding of the nature of the charge.

Source:Laws 1953, c. 92, § 2, p. 264.


29-1819.02. Plea of guilty or nolo contendere; advisement required; effect.

(1) Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:

IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES.

(2) Upon request, the court shall allow the defendant additional time to consider the appropriateness of the plea in light of the advisement as described in this section. If, on or after July 20, 2002, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of removal from the United States, or denial of naturalization pursuant to the laws of the United States, the court, on the defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty. Absent a record that the court provided the advisement required by this section, the defendant shall be presumed not to have received the required advisement.

(3) With respect to pleas accepted prior to July 20, 2002, it is not the intent of the Legislature that a court's failure to provide the advisement required by subsection (1) of this section should require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid. Nothing in this section, however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea.

Source:Laws 2002, LB 82, § 13.    


Annotations

29-1819.03. Plea of guilty or nolo contendere; legislative findings and intent.

The Legislature finds and declares that in many instances involving an individual who is not a citizen of the United States and who is charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for removal from the United States, or denial of naturalization pursuant to the laws of the United States. Therefor, it is the intent of the Legislature in enacting this section and section 29-1819.02 to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea. It is also the intent of the Legislature that the court in such cases shall grant the defendant a reasonable amount of time to negotiate with the prosecuting agency in the event the defendant or the defendant's counsel was unaware of the possibility of removal from the United States, or denial of naturalization as a result of conviction. It is further the intent of the Legislature that at the time of the plea no defendant shall be required to disclose his or her legal status to the court.

Source:Laws 2002, LB 82, § 14.    


29-1820. Plea of guilty; record; accused; custody.

If the accused pleads guilty the plea shall be recorded on the indictment, and the accused may be placed in the custody of the sheriff until sentence.

Source:G.S.1873, c. 58, § 452, p. 823; R.S.1913, § 9096; C.S.1922, § 10121; C.S.1929, § 29-1819; R.S.1943, § 29-1820; Laws 1963, c. 162, § 1, p. 575.


Annotations

29-1821. Plea of not guilty; record; day of trial; designation; continuance; when.

If the accused pleads not guilty, the plea shall be entered on the indictment, and the prosecuting attorney shall, under the direction of the court, designate a day for trial, which shall be a day of the term at which the plea is made, unless the court, for good reasons, continues the case to a subsequent term.

Source:G.S.1873, c. 58, § 453, p. 823; R.S.1913, § 9097; C.S.1922, § 10122; C.S.1929, § 29-1820; R.S.1943, § 29-1821.


Annotations

29-1822. Mental incompetency of accused after crime commission; effect; death penalty; stay of execution.

(1) A person who becomes mentally incompetent after the commission of an offense shall not be tried for the offense until such disability is removed as provided in section 29-1823.

(2) If, after a verdict of guilty, but before judgment is pronounced, a defendant becomes mentally incompetent, then no judgment shall be given until such disability is removed.

(3) If a defendant is sentenced to death and, after judgment, but before execution of the sentence, such person becomes mentally incompetent, execution of the sentence shall be stayed until such disability is removed.

Source:G.S.1873, c. 58, § 454, p. 823; R.S.1913, § 9098; C.S.1922, § 10123; C.S.1929, § 29-1821; R.S.1943, § 29-1822; Laws 1986, LB 1177, § 7;    Laws 2015, LB268, § 13;    Referendum 2016, No. 426; Laws 2020, LB881, § 17.    


Annotations

29-1823. Mental incompetency of defendant before or during trial; determination by judge; effect; costs; hearing; commitment proceeding; treatment; department; duties; motion to discharge; considerations; reimbursement to counties for lodging.

(1) If at any time prior to or during trial it appears that the defendant has become mentally incompetent to stand trial, such disability may be called to the attention of the district or county court by the county attorney or city attorney, by the defendant, or by any person for the defendant. The judge of the district or county court of the county where the defendant is to be tried shall have the authority to determine whether or not the defendant is competent to stand trial. The judge may also cause such medical, psychiatric, or psychological examination of the defendant to be made as he or she deems warranted and hold such hearing as he or she deems necessary. The cost of the examination, when ordered by the court, shall be the expense of the county in which the crime is charged. The judge may allow any physician, psychiatrist, or psychologist a reasonable fee for his or her services, which amount, when determined by the judge, shall be certified to the county board which shall cause payment to be made. Should the judge determine after a hearing that the defendant is mentally incompetent to stand trial and that there is a substantial probability that the defendant will become competent within the reasonably foreseeable future, the judge shall order the defendant to be committed to the Department of Health and Human Services to provide appropriate treatment to restore competency. This may include commitment to a state hospital for the mentally ill, another appropriate state-owned or state-operated facility, or a contract facility or provider pursuant to an alternative treatment plan proposed by the department and approved by the court under subsection (2) of this section until such time as the disability may be removed.

(2)(a) If the department determines that treatment by a contract facility or provider is appropriate, the department shall file a report outlining its determination and such alternative treatment plan with the court. Within twenty-one days after the filing of such report, the court shall hold a hearing to determine whether such treatment is appropriate. The court may approve or deny such alternative treatment plan.

(b) A defendant shall not be eligible for treatment by a contract facility or provider under this subsection if the judge determines that the public's safety would be at risk.

(3) Within sixty days after entry of the order committing the defendant to the department, and every sixty days thereafter until either the disability is removed or other disposition of the defendant has been made, the court shall hold a hearing to determine (a) whether the defendant is competent to stand trial or (b) whether or not there is a substantial probability that the defendant will become competent within the reasonably foreseeable future.

(4) If it is determined that there is not a substantial probability that the defendant will become competent within the reasonably foreseeable future, then the state shall either (a) commence the applicable civil commitment proceeding that would be required to commit any other person for an indefinite period of time or (b) release the defendant. If during the period of time between the sixty-day review hearings set forth in subsection (3) of this section it is the opinion of the department that the defendant is competent to stand trial, the department shall file a report outlining its opinion with the court and within seven days after such report being filed the court shall hold a hearing to determine whether or not the defendant is competent to stand trial. The state shall pay the cost of maintenance and care of the defendant during the period of time ordered by the court for treatment to remove the disability.

(5) The defendant, by and through counsel, may move to be discharged from the offenses charged in the complaint or information for the reason that there is not a substantial probability that the defendant will become competent within the reasonably foreseeable future.

(6) In determining whether there is a substantial probability that a defendant will become competent in the reasonably foreseeable future, the court shall take into consideration the likely length of any sentence that would be imposed upon the defendant. If the court discharges the defendant, the court shall state whether such discharge is with or without prejudice.

(7)(a) If a judge orders a defendant to be committed to the Department of Health and Human Services to receive treatment to restore competency and such defendant remains lodged in the county jail, the department shall reimburse the county for lodging the defendant.

(b) Costs of lodging the defendant shall include the daily rate of lodging the defendant, food, medical services, transportation, and any other necessary costs incurred by the county to lodge the defendant.

(c) The daily rate of lodging the defendant shall be one hundred dollars per day for each day or portion thereof after the first thirty days that the defendant is lodged in the county jail after a determination by a judge that the defendant is required to be restored to competency. On July 1, 2023, and each July 1 thereafter, the department shall adjust the amount to be reimbursed to the county jails by an amount equal to the percentage increase, if any, in the Consumer Price Index for All Urban Consumers, as published by the United States Department of Labor, Bureau of Labor Statistics, for the twelve months ending on June 30 of such year.

(d) For purposes of this section, medical services has the same meaning as provided in subsection (2) of section 47-701.

Source:Laws 1967, c. 174, § 1, p. 489; Laws 1997, LB 485, § 1;    Laws 2017, LB259, § 4;    Laws 2019, LB686, § 5;    Laws 2020, LB881, § 18;    Laws 2022, LB921, § 1.    


Cross References

Annotations

29-1824. Competency restoration treatment; network of contract facilities and providers; department; powers.

The Department of Health and Human Services may establish a network of contract facilities and providers to provide competency restoration treatment pursuant to alternative treatment plans under section 29-1823. The department may create criteria for participation in such network and establish training in competency restoration treatment for participating contract facilities and providers.

Source:Laws 2020, LB881, § 19.    


29-1825. Transferred to section 23-3405.

29-1826. Transferred to section 23-3406.

29-1827. Transferred to section 23-3407.

29-1828. Transferred to section 23-3408.

29-1901. Subpoenas in traffic and criminal cases; provisions applicable.

(1) The statutes governing subpoenas in civil actions and proceedings shall also govern subpoenas in traffic and criminal cases, except that subsections (1), (3), and (4) of section 25-1228 shall not apply to those cases. The payment of compensation and mileage to witnesses in those cases shall be governed by section 29-1903.

(2) A trial subpoena in a traffic and criminal case shall contain the statement specified in subsection (5) of section 25-1223.

Source:G.S.1873, c. 58, § 459, p. 824; R.S.1913, § 9099; C.S.1922, § 10124; C.S.1929, § 29-1901; R.S.1943, § 29-1901; Laws 1990, LB 87, § 3;    Laws 1992, LB 435, § 1;    Laws 1992, LB 1059, § 23; Laws 2017, LB509, § 5.    


Annotations

29-1902. Return of subpoenas.

If the subpoena be served by such special deputy, it shall be his duty, after serving the same, to return thereon the manner in which the same was served; and also to make oath or affirmation to the truth of such return, before some person competent to administer oaths, which shall be endorsed on such writ; and the same shall be returned according to the command thereof by the person serving the same through the post office or otherwise.

Source:G.S.1873, c. 58, § 460, p. 824; R.S.1913, § 9100; C.S.1922, § 10125; C.S.1929, § 29-1902; R.S.1943, § 29-1902.


29-1903. Traffic, criminal, and juvenile cases; witness fees and mileage.

(1) The amount of the witness fee and mileage in traffic, criminal, and juvenile cases is governed by section 33-139.

(2) A witness in a traffic, criminal, or juvenile case shall be entitled to a witness fee and mileage after appearing in court in response to a subpoena. The clerk of the court shall immediately submit a claim for payment of witness fees and mileage on behalf of all such witnesses to the county clerk in cases involving a violation of state law or to the city clerk in cases involving a violation of a city ordinance. All witness fees and mileage paid by a defendant as part of the court costs ordered by the court to be paid shall be reimbursed to the county or city treasurer as appropriate.

(3) Any person accused of crime amounting to a misdemeanor or felony shall have compulsory process to enforce the attendance of witnesses in his or her behalf.

Source:G.S.1873, c. 58, § 461, p. 825; Laws 1885, c. 106, § 1, p. 394; R.S.1913, § 9101; C.S.1922, § 10126; C.S.1929, § 29-1903; R.S.1943, § 29-1903; Laws 1981, LB 204, § 40;    Laws 2017, LB509, § 6.    


Annotations

29-1904. Depositions; certain witnesses; application by defendant; when granted; interrogatories; notice to county attorney.

Where any issue of fact is joined on any indictment, and any material witness for the defendant resides out of the state, or, residing within the state, is sick or infirm or is about to leave the state, such defendant may apply in writing to the court in term time, or the judge thereof in vacation, for a commission to examine such witness upon interrogatories thereto annexed, and such court or judge may grant the same, and order what and for how long a time notice shall be given the prosecuting attorney before the witness shall be examined.

Source:G.S.1873, c. 58, § 462, p. 825; R.S.1913, § 9102; C.S.1922, § 10127; C.S.1929, § 29-1904; R.S.1943, § 29-1904.


Cross References

Annotations

29-1905. Depositions; how taken.

The proceedings in taking the examination of such witness and returning it to court shall be governed in all respects as the taking of depositions in all civil cases.

Source:G.S.1873, c. 58, § 463, p. 825; R.S.1913, § 9103; C.S.1922, § 10128; C.S.1929, § 29-1905; R.S.1943, § 29-1905.


Annotations

29-1906. Terms, defined.

(1) The word witness as used in sections 29-1906 to 29-1911 shall include a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding; (2) the word state shall include any territory of the United States and the District of Columbia; (3) the word summons shall include a subpoena, order or other notice requiring the appearance of a witness.

Source:Laws 1937, c. 71, § 1, p. 257; C.S.Supp.,1941, § 29-1906; R.S.1943, § 29-1906.


29-1907. Person in this state required as witness in another state; procedure to secure attendance; fees; failure to testify; punishment.

If a judge of a court of record in any state, which by its laws has made provision for commanding persons within that state to attend and testify in this state, certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and that his or her presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing. If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence and of any other state through which the witness may be required to pass by ordinary course of travel, will give to him or her protection from arrest and the service of civil and criminal process, he or she shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein. If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his or her attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him or her for such hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability, may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state. If the witness, who is summoned as above provided, after being paid or tendered by some properly authorized person an amount equal to the rate authorized in section 81-1176 for mileage for state employees for each mile by the ordinary traveled route to and from the court where the prosecution is pending and five dollars for each day that he or she is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he or she shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Source:Laws 1937, c. 71, § 2, p. 257; C.S.Supp.,1941, § 29-1907; R.S.1943, § 29-1907; Laws 1981, LB 204, § 41.    


29-1908. Person in another state required as witness in this state; procedure to secure attendance; fees; failure to testify; punishment.

If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. Such certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his or her attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found. If the witness is summoned to attend and testify in this state he or she shall be tendered an amount equal to the rate authorized in section 81-1176 for mileage for state employees for each mile by the ordinary traveled route to and from the court where the prosecution is pending, and five dollars for each day that he or she is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he or she shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Source:Laws 1937, c. 71, § 3, p. 259; C.S.Supp.,1941, § 29-1908; R.S.1943, § 29-1908; Laws 1981, LB 204, § 42.    


Cross References

Annotations

29-1909. Witness from another state; not subject to arrest or civil process while in this state.

If a person comes into this state in obedience to a summons directing him to attend and testify in this state, he shall not while in this state pursuant to such summons be subject to arrest for the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons. If a person passes through this state while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he shall not while so passing through this state be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this state under the summons.

Source:Laws 1937, c. 71, § 4, p. 259; C.S.Supp.,1941, § 29-1909; R.S.1943, § 29-1909.


29-1910. Sections, how construed.

Sections 29-1906 to 29-1911 shall be so interpreted and construed as to effectuate their general purpose to make uniform the law of the states which enact them. They shall be construed as supplemental to and cumulative with section 29-1904.

Source:Laws 1937, c. 71, § 5, p. 260; C.S.Supp.,1941, § 29-1910; R.S.1943, § 29-1910.


29-1911. Act, how cited.

Sections 29-1906 to 29-1911 may be cited as the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings.

Source:Laws 1937, c. 71, § 6, p. 260; C.S.Supp.,1941, § 29-1911; R.S.1943, § 29-1911.


29-1912. Request by defendant to inspect and make copies of evidence; granted; when; findings; possibility of harm; effect.

(1) When a defendant is charged with a felony or when a defendant is charged with a misdemeanor or a violation of a city or village ordinance for which imprisonment is a possible penalty, he or she may request the court where the case is to be tried, at any time after the filing of the indictment, information, or complaint, to order the prosecuting attorney to permit the defendant to inspect and copy or photograph:

(a) The defendant's statement, if any. For purposes of this subdivision, statement includes any of the following which relate to the investigation of the underlying charge or charges in the case and which were developed or received by law enforcement agencies:

(i) Written or recorded statements;

(ii) Written summaries of oral statements; and

(iii) The substance of oral statements;

(b) The defendant's prior criminal record, if any;

(c) The defendant's recorded testimony before a grand jury;

(d) The names and addresses of witnesses on whose evidence the charge is based;

(e) The results and reports, in any form, of physical or mental examinations, and of scientific tests, or experiments made in connection with the particular case, or copies thereof;

(f) Documents, papers, books, accounts, letters, photographs, objects, or other tangible things of whatsoever kind or nature which could be used as evidence by the prosecuting authority; and

(g) Reports developed or received by law enforcement agencies when such reports directly relate to the investigation of the underlying charge or charges in the case.

(2) The court may issue such an order pursuant to the provisions of this section. In the exercise of its judicial discretion, the court shall consider, among other things, whether:

(a) The request is material to the preparation of the defense;

(b) The request is not made primarily for the purpose of harassing the prosecution or its witnesses;

(c) The request, if granted, would not unreasonably delay the trial of the offense and an earlier request by the defendant could not have reasonably been made;

(d) There is no substantial likelihood that the request, if granted, would preclude a just determination of the issues at the trial of the offense; or

(e) The request, if granted, would not result in the possibility of bodily harm to, or coercion of, witnesses.

(3) Whenever the court refuses to grant an order pursuant to the provisions of this section, it shall render its findings in writing together with the facts upon which the findings are based.

(4) Whenever the prosecuting attorney believes that the granting of an order under the provisions of this section will result in the possibility of bodily harm to witnesses or that witnesses will be coerced, the court may permit him or her to make such a showing in the form of a written statement to be inspected by the court alone. The statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal by the defendant.

(5) This section does not apply to jailhouse informants as defined in section 29-4701. Sections 29-4701 to 29-4706 govern jailhouse informants.

Source:Laws 1969, c. 235, § 1, p. 867; Laws 1983, LB 110, § 1;    Laws 2009, LB63, § 25;    Laws 2010, LB771, § 17;    Laws 2019, LB352, § 7;    Laws 2019, LB496, § 4.    


Annotations

29-1913. Discovery; evidence of prosecuting authority; test or analysis by defense; when allowed; when inadmissible.

(1) When in any felony prosecution or any prosecution for a misdemeanor or a violation of a city or village ordinance for which imprisonment is a possible penalty, the evidence of the prosecuting authority consists of scientific tests or analyses of ballistics, firearms identification, fingerprints, blood, semen, or other stains, upon motion of the defendant the court where the case is to be tried may order the prosecuting attorney to make available to the defense such evidence necessary to allow the defense to conduct like tests or analyses with its own experts. The order shall specify the time, place, and manner of making such tests or analyses by the defense. Such an order shall not be entered if the tests or analyses by the defense cannot be made because of the natural deterioration of the evidence.

(2) If the evidence necessary to conduct the tests or analyses by the defense is unavailable because of the neglect or intentional alteration by representatives of the prosecuting authority, other than alterations necessary to conduct the initial tests, the tests or analyses by the prosecuting authority shall not be admitted into evidence.

Source:Laws 1969, c. 235, § 2, p. 868; Laws 1983, LB 110, § 2.    


Annotations

29-1914. Discovery order; limitation.

Whenever an order is issued pursuant to the provisions of section 29-1912 or 29-1913, it shall be limited to items or information that:

(1) Directly relate to the investigation of the underlying charge or charges in the case;

(2) Are within the possession, custody, or control of the state or local subdivisions of government; and

(3) Are known to exist by the prosecution or that, by the exercise of due diligence, may become known to the prosecution.

Source:Laws 1969, c. 235, § 3, p. 869; Laws 2019, LB496, § 5.    


Annotations

29-1915. Discovery order; specify time, place, and manner of inspections and making copies.

An order issued pursuant to the provisions of sections 29-1912 to 29-1921 shall specify the time, place, and manner of making the inspections and of making copies or photographs and may prescribe such terms and conditions as are just.

Source:Laws 1969, c. 235, § 4, p. 869.


Annotations

29-1916. Discovery order; reciprocity to prosecution; waiver of privilege of self-incrimination.

(1) Whenever the court issues an order pursuant to the provisions of sections 29-1912 and 29-1913, the court may condition its order by requiring the defendant to grant the prosecution like access to comparable items or information included within the defendant's request which:

(a) Are in the possession, custody, or control of the defendant;

(b) The defendant intends to produce at the trial; and

(c) Are material to the preparation of the prosecution's case.

(2) Whenever a defendant is granted an order under sections 29-1912 to 29-1921, the defendant shall be deemed to have waived the privilege of self-incrimination for the purposes of the operation of this section.

Source:Laws 1969, c. 235, § 5, p. 869; Laws 2019, LB496, § 6.    


Annotations

29-1917. Deposition of witness or sexual assault victim; when; procedure; use at trial.

(1) Except as provided in section 29-1926, at any time after the filing of an indictment or information in a felony prosecution, the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a witness in the trial of the offense. The court may order the taking of the deposition when it finds the testimony of the witness:

(a) May be material or relevant to the issue to be determined at the trial of the offense; or

(b) May be of assistance to the parties in the preparation of their respective cases.

(2) An order granting the taking of a deposition shall include the time and place for taking such deposition and such other conditions as the court determines to be just.

(3) Except as provided in subsection (4) of this section, the proceedings in taking the deposition of a witness pursuant to this section and returning it to the court shall be governed in all respects as the taking of depositions in civil cases, including section 25-1223.

(4)(a) A sexual assault victim may request to have an advocate of the victim's choosing present during a deposition under this section. The prosecuting attorney shall inform the victim that the victim may make such request as soon as reasonably practicable prior to the deposition. If the victim wishes to have an advocate present, the victim shall, if reasonably practicable, inform the prosecuting attorney if an advocate will be present, and, if known, the advocate's identity and contact information. If so informed by the victim, the prosecuting attorney shall notify the defendant as soon as reasonably practicable.

(b) An advocate present at a deposition under this section shall not interfere with the deposition or provide legal advice.

(c) For purposes of this subsection, the terms sexual assault victim, victim, and advocate have the same meanings as in section 29-4309.

(5) A deposition taken pursuant to this section may be used at the trial by any party solely for the purpose of contradicting or impeaching the testimony of the deponent as a witness.

Source:Laws 1969, c. 235, § 6, p. 870; Laws 1988, LB 90, § 2;    Laws 1993, LB 178, § 1;    Laws 2011, LB667, § 6;    Laws 2019, LB496, § 7;    Laws 2020, LB43, § 10.    


Cross References

Annotations

29-1918. Discovery of additional evidence; notify other party and court.

If, subsequent to compliance with an order for discovery under the provisions of sections 29-1912 to 29-1921, and prior to or during trial, a party discovers additional material which the party would have been under a duty to disclose or produce at the time of such previous compliance, the party shall promptly notify the other party or the other party's attorney and the court of the existence of the additional material. Such notice shall be given at the time of the discovery of such additional material.

Source:Laws 1969, c. 235, § 7, p. 870; Laws 2019, LB496, § 8.    


29-1919. Discovery; failure to comply; effect.

If, at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with sections 29-1912 to 29-1921 or an order issued pursuant to sections 29-1912 to 29-1921, the court may:

(1) Order such party to permit the discovery or inspection of materials not previously disclosed;

(2) Grant a continuance;

(3) Prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed; or

(4) Enter such other order as it deems just under the circumstances.

Source:Laws 1969, c. 235, § 8, p. 870; Laws 2019, LB496, § 9.    


Annotations

29-1920. Indigent defendant; costs; how taxed.

Whenever a defendant is adjudged indigent, the reasonable costs incurred in the operation of the provisions of sections 29-1912 to 29-1921 shall be taxed as costs against the prosecuting authority.

Source:Laws 1969, c. 235, § 9, p. 871.


29-1921. Attorney-client privilege protected.

Nothing in sections 29-1912 to 29-1921 shall be construed to authorize any disclosure which would violate the attorney-client privilege.

Source:Laws 1969, c. 235, § 10, p. 871.


29-1922. Motion to produce statement of defendant and names of eyewitnesses; filing; order.

Any defendant may file a motion to produce any statement made by the defendant, or furnish the name of every eyewitness who has identified the defendant at a lineup or showup. The motion shall be filed in the court where the case is to be tried and may be made at any time after the information, indictment, or complaint is filed, and must be filed at least ten days before trial or at the time of arraignment, whichever is the later, unless otherwise permitted by the court for good cause shown. Upon a showing that the items requested by the defendant may be material to the preparation of his or her defense and that the request is reasonable, the court shall entertain such motion and upon sufficient showing may at any time order that the discovery or the inspection be denied, restricted, or deferred or may specify the time, place, and manner of the making of the examination and the taking of copies of items requested and may prescribe such other terms and conditions as are just.

Source:Laws 1969, c. 230, § 1, p. 857; Laws 1983, LB 110, § 3.    


29-1923. Additional statement of defendant or name of eyewitness; prosecutor; notification required; failure to comply; effect.

If, subsequent to compliance with an order issued pursuant to section 29-1922, and prior to or during trial, the prosecuting authority discovers any additional statement made by the defendant or the name of any eyewitness who has identified the defendant at a lineup or showup previously requested or ordered which is subject to discovery or inspection under section 29-1922, he or she shall promptly notify the defendant or his or her attorney or the court of the existence of this additional material. Such notice shall be given at the time of the discovery of such additional material. If at any time during the course of the proceedings it is brought to the attention of the court that the prosecuting authority has failed to comply with this section or with an order issued pursuant to section 29-1922, the court may order the prosecuting authority to permit the discovery or inspection of materials or witnesses not previously disclosed, grant a continuance, or prohibit the prosecuting authority from introducing in evidence the material or the testimony of the witness or witnesses not disclosed, or it may enter such other order as it deems just under the circumstances.

Source:Laws 1969, c. 230, § 2, p. 857; Laws 1983, LB 110, § 4;    Laws 2019, LB496, § 10.    


29-1924. Statement, defined.

For purposes of sections 29-1922 and 29-1923, statement made by the defendant includes any of the following statements made by the defendant which relate to the investigation of the underlying charge or charges in the case and which were developed or received by law enforcement agencies:

(1) Written or recorded statements;

(2) Written summaries of oral statements; and

(3) The substance of oral statements.

Source:Laws 1969, c. 230, § 3, p. 858; Laws 1983, LB 110, § 5;    Laws 2019, LB496, § 11.    


29-1925. Child victim or child witness; testimony; legislative intent.

The Legislature recognizes that obtaining testimony in a criminal prosecution from a child victim of or a child witness to a felony offense may be a delicate matter and may require some special considerations. It is the intent of the Legislature to promote, facilitate, and preserve the testimony of such child victim or child witness in a criminal prosecution to the fullest extent possible consistent with the constitutional right to confrontation guaranteed by the Sixth Amendment of the Constitution of the United States and Article I, section 11, of the Nebraska Constitution.

Source:Laws 1988, LB 90, § 1.    


29-1926. Child victim or child witness; video deposition and in camera testimony; conditions; use; findings by court; release; procedure; violation; penalty.

(1)(a) Upon request of the prosecuting or defense attorney and upon a showing of compelling need, the court shall order the taking of a video deposition of a child victim of or child witness to any offense punishable as a felony. The deposition ordinarily shall be in lieu of courtroom or in camera testimony by the child. If the court orders a video deposition, the court shall:

(i) Designate the time and place for taking the deposition. The deposition may be conducted in the courtroom, the judge's chambers, or any other location suitable for video recording;

(ii) Assure adequate time for the defense attorney to complete discovery before taking the deposition; and

(iii) Preside over the taking of the video deposition in the same manner as if the child were called as a witness for the prosecution during the course of the trial.

(b) Unless otherwise required by the court, the deposition shall be conducted in the presence of the prosecuting attorney, the defense attorney, the defendant, and any other person deemed necessary by the court, including the parent or guardian of the child victim or child witness, an advocate as defined in section 29-4309, or a counselor or other person with whom the child is familiar. Such parent, guardian, advocate, counselor, or other person shall be allowed to sit with or near the child unless the court determines that such person would be disruptive to the child's testimony.

(c) At any time subsequent to the taking of the original video deposition and upon sufficient cause shown, the court shall order the taking of additional video depositions to be admitted at the time of the trial.

(d) If the child testifies at trial in person rather than by video deposition, the taking of the child's testimony may, upon request of the prosecuting attorney and upon a showing of compelling need, be conducted in camera.

(e) Unless otherwise required by the court, the child shall testify in the presence of the prosecuting attorney, the defense attorney, the defendant, and any other person deemed necessary by the court, including the parent or guardian of the child victim or child witness, an advocate as defined in section 29-4309, or a counselor or other person with whom the child is familiar. Such parent, guardian, advocate, counselor, or other person shall be allowed to sit with or near the child unless the court determines that such person would be disruptive to the child's testimony. Unless waived by the defendant, all persons in the room shall be visible on camera except the camera operator.

(f) If deemed necessary to preserve the constitutionality of the child's testimony, the court may direct that during the testimony the child shall at all times be in a position to see the defendant live or on camera.

(g) For purposes of this section, child means a person eleven years of age or younger at the time the motion to take the deposition is made or at the time of the taking of in camera testimony at trial.

(h) Nothing in this section shall restrict the court from conducting the pretrial deposition or in camera proceedings in any manner deemed likely to facilitate and preserve a child's testimony to the fullest extent possible, consistent with the right to confrontation guaranteed in the Sixth Amendment of the Constitution of the United States and Article I, section 11, of the Nebraska Constitution. In deciding whether there is a compelling need that child testimony accommodation is required by pretrial video deposition, in camera live testimony, in camera video testimony, or any other accommodation, the court shall make particularized findings on the record of:

(i) The nature of the offense;

(ii) The significance of the child's testimony to the case;

(iii) The likelihood of obtaining the child's testimony without modification of trial procedure or with a different modification involving less substantial digression from trial procedure than the modification under consideration;

(iv) The child's age;

(v) The child's psychological maturity and understanding; and

(vi) The nature, degree, and duration of potential injury to the child from testifying.

(i) The court may order an independent examination by a psychologist or psychiatrist if the defense attorney requests the opportunity to rebut the showing of compelling need produced by the prosecuting attorney. Such examination shall be conducted in the child's county of residence.

(j) After a finding of compelling need by the court, neither party may call the child witness to testify as a live witness at the trial before the jury unless that party demonstrates that the compelling need no longer exists.

(k) Nothing in this section shall limit the right of access of the media or the public to open court.

(l) Nothing in this section shall preclude discovery by the defendant as set forth in section 29-1912.

(m) The Supreme Court may adopt and promulgate rules of procedure to administer this section, which rules shall not be in conflict with laws governing such matters.

(2)(a) No custodian of a video recording of a child victim or child witness alleging, explaining, denying, or describing an act of sexual assault pursuant to section 28-319, 28-319.01, or 28-320.01 or child abuse pursuant to section 28-707 as part of an investigation or evaluation of the abuse or assault shall release or use a video recording or copies of a video recording or consent, by commission or omission, to the release or use of a video recording or copies of a video recording to or by any other party without a court order, notwithstanding the fact that the child victim or child witness has consented to the release or use of the video recording or that the release or use is authorized under law, except as provided in section 28-730 or pursuant to an investigation under the Office of Inspector General of Nebraska Child Welfare Act. Any custodian may release or consent to the release or use of a video recording or copies of a video recording to law enforcement agencies or agencies authorized to prosecute such abuse or assault cases on behalf of the state.

(b) The court order may govern the purposes for which the video recording may be used, the reproduction of the video recording, the release of the video recording to other persons, the retention and return of copies of the video recording, and any other requirements reasonably necessary for the protection of the privacy and best interests of the child victim or child witness.

(c)(i) Pursuant to section 29-1912, the defendant described in the video recording may petition the district court in the county where the alleged offense took place or where the custodian of the video recording resides for an order requiring the custodian of the video recording to provide a physical copy to the defendant or the defendant's attorney. Such order shall include a protective order prohibiting further distribution of the video recording without a court order.

(ii) Upon obtaining the copy of the video recording pursuant to subdivision (2)(c)(i) of this section, the defendant or the defendant's attorney may request that the recording be transcribed by filing a motion with the court identifying the court reporter or transcriber and the address or location where the transcription will occur. Upon receipt of such request, the court shall enter an order authorizing the distribution of a copy of the video recording to such reporter or transcriber and requiring the copy of the video recording be returned by the reporter or transcriber upon completion of the transcription. Such order may include a protective order related to the distribution of the video recording or information contained in the video recording, including an order that identifying information of the child victim or child witness be redacted from the transcript prepared pursuant to this subsection. Upon return of such copy, the defendant or the defendant's attorney shall certify to the court and the parties that such copy has been returned.

(iii) After obtaining the copy of the video recording pursuant to subdivision (2)(c)(i) of this section, the defendant or the defendant's attorney may file a motion with the court requesting permission to release such copy to an expert or investigator. If the defendant or the defendant's attorney believes that including the name or identifying information of such expert or investigator will prejudice the defendant, the court shall permit the defendant or the defendant's attorney to include such information in the form of a written statement to be inspected by the court alone. The statement shall be sealed and preserved in the records of the court. Upon granting such motion, the court shall enter an order authorizing the distribution of a copy of the video recording to such expert or investigator and requiring the copy of the video recording be returned by the expert or investigator upon the completion of services of the expert or investigator. The order shall not include the name or identifying information of the expert or investigator. Such order may include a protective order related to the distribution of the video recording or information contained in the video recording. Upon return of such copy, the defendant or the defendant's attorney shall certify to the court and the parties that such copy has been returned. Such certification shall not include the name or identifying information of the expert or the investigator.

(d) Any person who releases or uses a video recording except as provided in this section shall be guilty of a Class I misdemeanor.

Source:Laws 1988, LB 90, § 3;    Laws 1997, LB 643, § 1;    Laws 2006, LB 1199, § 12;    Laws 2015, LB347, § 1;    Laws 2020, LB43, § 11;    Laws 2020, LB1148, § 8.    


Cross References

Annotations

29-1927. Admission of evidence of alibi; notice required; waiver.

No evidence offered by a defendant for the purpose of establishing an alibi to an offense shall be admitted in the trial of the case unless notice of intention to rely upon an alibi is given to the county attorney and filed with the court at least thirty days before trial, except that such notice shall be waived by the presiding judge if necessary in the interests of justice.

Source:Laws 1993, LB 430, § 4.    


Annotations

29-1928. Repealed. Laws 2009, LB 63, § 50.

29-1929. Repealed. Laws 2009, LB 63, § 50.

29-2001. Trial; presence of accused required; exceptions.

No person indicted for a felony shall be tried unless personally present during the trial. Persons indicted for a misdemeanor may, at their own request, by leave of the court be put on trial in their absence. The request shall be in writing and entered on the record of the court.

Source:G.S.1873, c. 58, § 464, p. 825; R.S.1913, § 9104; C.S.1922, § 10129; C.S.1929, § 29-2001; R.S.1943, § 29-2001; Laws 2018, LB193, § 57.    


Annotations

29-2002. Joinder of offenses; joint trial; separate trials; when permitted; procedure.

(1) Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

(2) The court may order two or more indictments, informations, or complaints, or any combination thereof, to be tried together if the offenses could have been joined in a single indictment, information, or complaint or if the defendants, if there is more than one, are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The procedure shall be the same as if the prosecution were under such single indictment, information, or complaint.

(3) If it appears that a defendant or the state would be prejudiced by a joinder of offenses in an indictment, information, or complaint or by such joinder of offenses in separate indictments, informations, or complaints for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.

Source:G.S.1873, c. 58, § 462, p. 825; R.S.1913, § 9105; C.S.1922, § 10130; C.S.1929, § 29-2002; R.S.1943, § 29-2002; Laws 1957, c. 105, § 1, p. 366; Laws 1992, LB 434, § 1.    


Annotations

29-2003. Joint indictment; special venire; when required; how drawn.

When two or more persons have been charged together in the same indictment or information with a crime, and one or more have demanded a separate trial and had the same, and when the court is satisfied by reason of the same evidence being required in the further trial of parties to the same indictment or information, that the petit jurors from the jury panel and bystanders are incompetent, because of having heard the evidence, to sit in further causes in the same indictment or information, then the court may require the jury commissioner to draw in the same manner as described in section 25-1656 such number of names as the court may direct as a separate jury panel from which a jury may be selected, which panel shall be notified and summoned for the day and hour as ordered by the court. The jurors whose names are so drawn shall be summoned to forthwith appear before the court, and, after having been examined, such as are found qualified and have no lawful excuse for not serving as jurors shall constitute a special venire from which the court shall proceed to have a jury impaneled for the trial of the cause. The court may repeat the exercise of this power until all the parties charged in the same indictment or information have been tried.

Source:Laws 1881, c. 34, § 1, p. 213; R.S.1913, § 9106; C.S.1922, § 10131; C.S.1929, § 29-2003; R.S.1943, § 29-2003; Laws 2020, LB387, § 42.    


Annotations

29-2004. Jury; how drawn and selected; alternate jurors.

(1) All parties may stipulate that the jury may be selected up to thirty-one days prior to the date of trial. The stipulation must be unanimous among all parties and evidenced by a joint stipulation to the county court.

(2) In all cases, except as may be otherwise expressly provided, the accused shall be tried by a jury drawn, summoned, and impaneled according to provisions of the code of civil procedure, except that whenever in the opinion of the court the trial is likely to be a protracted one, the court may, immediately after the jury is impaneled and sworn, direct the calling of additional jurors, to be known as alternate jurors.

(3)(a) The court may impanel up to six alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(b) Alternate jurors must have the same qualifications and shall be selected and sworn in the same manner as any other juror.

(c) Unless a party objects, alternate jurors shall replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

(4) The alternate jurors shall take the proper oath or affirmation and shall be seated near the regular jurors with equal facilities for seeing and hearing the proceedings in the cause, and shall attend at all times upon the trial of the cause in company with the regular jurors. They shall obey all orders and admonitions of the court, and if the regular jurors are ordered to be kept in the custody of an officer during the trial of the cause, the alternate jurors shall also be kept with the other jurors.

(5)(a) The court may retain alternate jurors after the jury retires to deliberate, except that if an information charging a violation of section 28-303 and in which the death penalty is sought contains a notice of aggravation, the alternate jurors shall be retained as provided in section 29-2520.

(b) The court shall ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.

(6)(a) Each party is entitled to the following number of additional peremptory challenges to prospective alternate jurors:

(i) One additional peremptory challenge is permitted when one or two alternates are impaneled;

(ii) Two additional peremptory challenges are permitted when three or four alternates are impaneled; and

(iii) Three additional peremptory challenges are permitted when five or six alternates are impaneled.

(b) The additional peremptory challenges provided in this subsection may only be used to remove alternate jurors.

(7) In construing and applying this section, courts shall consider Federal Rule of Criminal Procedure 24 and case law interpreting such rule.

Source:G.S.1873, c. 58, § 466, p. 825; R.S.1913, § 9107; C.S.1922, § 10132; C.S.1929, § 29-2004; Laws 1933, c. 38, § 1, p. 242; C.S.Supp.,1941, § 29-2004; R.S.1943, § 29-2004; Laws 1996, LB 1249, § 2;    Laws 2002, Third Spec. Sess., LB 1, § 6;    Laws 2015, LB268, § 14;    Referendum 2016, No. 426; Laws 2020, LB881, § 20.    


Cross References

Annotations

29-2005. Peremptory challenges.

Except as otherwise provided in section 29-2004 for peremptory challenges to alternate jurors:

(1) Every person arraigned for any crime punishable with death, or imprisonment for life, shall be admitted on his or her trial to a peremptory challenge of twelve jurors, and no more;

(2) Every person arraigned for any offense that may be punishable by imprisonment for a term exceeding eighteen months and less than life, shall be admitted to a peremptory challenge of six jurors;

(3) In all other criminal trials, the defendant shall be allowed a peremptory challenge of three jurors; and

(4) The attorney prosecuting on behalf of the state shall be admitted to a peremptory challenge of twelve jurors in all cases when the offense is punishable with death or imprisonment for life, six jurors when the offense is punishable by imprisonment for a term exceeding eighteen months and less than life, and three jurors in all other cases.

Source:G.S.1873, c. 58, § 467, p. 826; R.S.1913, § 9108; Laws 1915, c. 166, § 1, p. 337; C.S.1922, § 10133; C.S.1929, § 29-2005; Laws 1933, c. 38, § 2, p. 243; C.S.Supp.,1941, § 29-2005; R.S.1943, § 29-2005; Laws 1981, LB 213, § 1;    Laws 2015, LB268, § 15;    Referendum 2016, No. 426; Laws 2020, LB881, § 21.    


Annotations

29-2006. Challenges for cause.

The following shall be good causes for challenge to any person called as a juror or alternate juror, on the trial of any indictment: (1) That he was a member of the grand jury which found the indictment; (2) that he has formed or expressed an opinion as to the guilt or innocence of the accused; Provided, if a juror or alternate juror shall state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine, on oath, such juror or alternate juror as to the ground of such opinion; and if it shall appear to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify, and the juror or alternate juror shall say on oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that such juror or alternate juror is impartial and will render such verdict, may, in its discretion, admit such juror or alternate juror as competent to serve in such case; (3) in indictments for an offense the punishment whereof is capital, that his opinions are such as to preclude him from finding the accused guilty of an offense punishable with death; (4) that he is a relation within the fifth degree to the person alleged to be injured or attempted to be injured, or to the person on whose complaint the prosecution was instituted, or to the defendant; (5) that he has served on the petit jury which was sworn in the same cause against the same defendant and which jury either rendered a verdict which was set aside or was discharged, after hearing the evidence; (6) that he has served as a juror in a civil case brought against the defendant for the same act; (7) that he has been in good faith subpoenaed as a witness in the case; (8) that he is a habitual drunkard; (9) the same challenges shall be allowed in criminal prosecutions that are allowed to parties in civil cases.

Source:G.S.1873, c. 58, § 468, p. 826; R.S.1913, § 9109; C.S.1922, § 10134; C.S.1929, § 29-2006; Laws 1933, c. 38, § 3, p. 243; C.S.Supp.,1941, § 29-2006; R.S.1943, § 29-2006; Laws 2015, LB268, § 16;    Referendum 2016, No. 426.

Note: The changes made to section 29-2006 by Laws 2015, LB 268, section 16, have been omitted because of the vote on the referendum at the November 2016 general election.


Annotations

29-2007. Challenges for cause; how tried.

All challenges for cause shall be tried by the court, on the oath of the person challenged, or on other evidence, and such challenge shall be made before the jury is sworn, and not afterward.

Source:G.S.1873, c. 58, § 469, p. 827; R.S.1913, § 9110; C.S.1922, § 10135; C.S.1929, § 29-2007; R.S.1943, § 29-2007.


Annotations

29-2008. Defendants tried together; number of peremptory challenges allowed.

If two or more persons be put on trial at the same time, each must be allowed his separate peremptory challenge, and in such cases the attorney prosecuting on behalf of the state shall be allowed such peremptory challenges for each of such defendants as are allowed by law.

Source:G.S.1873, c. 58, § 470, p. 827; R.S.1913, § 9111; Laws 1915, c. 167, § 1, p. 338; C.S.1922, § 10136; C.S.1929, § 29-2008; R.S.1943, § 29-2008.


Annotations

29-2009. Jurors; oath; form.

When all challenges have been made, the following oath shall be administered: You shall well and truly try, and true deliverance make, between the State of Nebraska and the prisoner at the bar (giving his name), so help you God.

Source:G.S.1873, c. 58, § 471, p. 827; R.S.1913, § 9112; C.S.1922, § 10137; C.S.1929, § 29-2009; R.S.1943, § 29-2009.


Annotations

29-2010. Juror; affirmation; form.

Any juror shall be allowed to make affirmation, and the words this you do as you shall answer under the pains and penalties of perjury shall be substituted instead of the words so help you God.

Source:G.S.1873, c. 58, § 472, p. 827; R.S.1913, § 9113; C.S.1922, § 10138; C.S.1929, § 29-2010; R.S.1943, § 29-2010.


29-2011. Jurors; permitted to take notes; use; destruction.

Jurors shall be permitted, but not required, to take notes. The notes may be used during the jury's deliberations and shall be treated as confidential between the juror making them and the other jurors. The trial judge shall ensure the confidentiality of the notes during the course of the trial and the jury's deliberations and shall instruct the bailiff to immediately mutilate and destroy such notes upon return of the verdict.

Source:Laws 2008, LB1014, § 72;    Laws 2020, LB387, § 43.    


29-2011.01. Repealed. Laws 1982, LB 525, § 3.

29-2011.02. Witnesses; refusal to testify or provide information; court order for testimony or information; limitation on use.

Whenever a witness refuses, on the basis of the privilege against self-incrimination, to testify or to provide other information in a criminal proceeding or investigation before a court, a grand jury, the Auditor of Public Accounts, the Legislative Council, or a standing committee or a special legislative investigative or oversight committee of the Legislature, the court, on motion of the county attorney, other prosecuting attorney, Auditor of Public Accounts, chairperson of the Executive Board of the Legislative Council, or chairperson of a standing or special committee of the Legislature, may order the witness to testify or to provide other information. The witness may not refuse to comply with such an order of the court on the basis of the privilege against self-incrimination, but no testimony or other information compelled under the court's order or any information directly or indirectly derived from such testimony or other information may be used against the witness in any criminal case except in a prosecution for perjury, giving a false statement, or failing to comply with the order of the court.

Source:Laws 1982, LB 525, § 1;    Laws 1990, LB 1246, § 12;    Laws 2015, LB539, § 1;    Laws 2020, LB681, § 1.    


Cross References

Annotations

29-2011.03. Order for testimony or information of witness; request; when.

The county attorney, other prosecuting attorney, Auditor of Public Accounts, or chairperson of the Executive Board of the Legislative Council or chairperson of a standing committee or a special legislative investigative or oversight committee of the Legislature upon an affirmative vote of a majority of the board or committee, may request an order pursuant to section 29-2011.02 when in such person's judgment:

(1) The testimony or other information from such individual may be necessary to the public interest; and

(2) Such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination.

Source:Laws 1982, LB 525, § 2;    Laws 1990, LB 1246, § 13;    Laws 2015, LB539, § 2;    Laws 2020, LB681, § 2.    


29-2012. Joint defendants; discharge of one or more; when authorized; effect.

When two or more persons shall be indicted together, the court may, at any time before the defendant has gone into his defense, direct any one of the defendants to be discharged that he may be a witness for the state. An accused may, also, when there is not sufficient evidence to put him upon his defense, be discharged by the court; or, if not discharged by the court, shall be entitled to the immediate verdict of the jury, for the purpose of giving evidence for others accused with him. Such order of discharge in either case shall be a bar to another prosecution for the same offense.

Source:G.S.1873, c. 58, § 474, p. 827; R.S.1913, § 9115; C.S.1922, § 10140; C.S.1929, § 29-2012; R.S.1943, § 29-2012.


Annotations

29-2013. Repealed. Laws 1989, LB 443,§2.

29-2014. Conspiracy; overt acts; allegations required; proof.

In trials for conspiracy, in cases where an overt act is required by law to consummate the offense, no conviction shall be had unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts so alleged be proved on trial; but other overt acts not alleged in the indictment may be given in evidence on the part of the prosecution.

Source:G.S.1873, c. 58, § 476, p. 828; R.S.1913, § 9117; C.S.1922, § 10142; C.S.1929, § 29-2014; R.S.1943, § 29-2014.


Annotations

29-2015. Repealed. Laws 1978, LB 748, § 61.

29-2016. Trial; order of procedure.

After the jury has been impaneled and sworn, the trial shall proceed in the following order: (1) The counsel for the state must state the case of the prosecution and may briefly state the evidence by which he expects to sustain it; (2) the defendant or his counsel must then state his defense and may briefly state the evidence he expects to offer in support of it; (3) the state must first produce its evidence; the defendant will then produce his evidence; (4) the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall permit it to offer evidence in chief; (5) when the evidence is concluded, either party may request instructions to the jury on the points of law, which shall be given or refused by the court, which instructions shall be reduced to writing if either require it; (6) when the evidence is concluded, unless the case is submitted without argument, the counsel for the state shall commence, the defendant or his counsel follow, and the counsel for the state conclude the argument to the jury; (7) the court after the argument is concluded shall immediately and before proceeding with other business charge the jury, which charge or any charge given after the conclusion of the argument shall be reduced to writing by the court, if either party requests it before the argument to the jury is commenced; and such charge or charges or any other charge or instruction provided for in this section, when so written and given, shall in no case be orally qualified, modified or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jury in their retirement and returned with their verdict into court, and shall remain on file with the papers of the case.

Source:G.S.1873, c. 58, § 478, p. 828; R.S.1913, § 9119; C.S.1922, § 10144; C.S.1929, § 29-2016; R.S.1943, § 29-2016.


Annotations

29-2017. Jury; view place of occurrence of material fact; restrictions.

Whenever in the opinion of the court it is proper for the jury to have a view of the place in which any material fact occurred, it may order them to be conducted in a body, under charge of the bailiff, to the place which shall be shown to them by the bailiff, an individual appointed by the court, or both. While the jury are thus absent, no person other than the bailiff or individual appointed by the court shall speak to them on any subject connected with the trial.

Source:G.S.1873, c. 58, § 479, p. 829; R.S.1913, § 9120; C.S.1922, § 10145; C.S.1929, § 29-2017; R.S.1943, § 29-2017; Laws 2020, LB387, § 44.    


Annotations

29-2018. Mistake in charging offense; prior to verdict; procedure.

When it shall appear at any time before the verdict that a mistake has been made in charging the proper offense, the accused shall not be discharged if there appears to be good cause to detain him in custody; but the court must recognize him to answer to the offense on the first day of the next term of such court, and shall, if necessary, likewise recognize the witnesses to appear and testify.

Source:G.S.1873, c. 58, § 480, p. 829; R.S.1913, § 9121; C.S.1922, § 10146; C.S.1929, § 29-2018; R.S.1943, § 29-2018.


Annotations

29-2019. Mistake in charging offense; jury; discharge prior to verdict.

When a jury has been impaneled in a case contemplated by section 29-2018, such jury may be discharged without prejudice to the prosecution.

Source:G.S.1873, c. 58, § 481, p. 829; R.S.1913, § 9122; C.S.1922, § 10147; C.S.1929, § 29-2019; R.S.1943, § 29-2019.


29-2020. Bill of exceptions by defendant; request; procedure; exception in capital cases.

Except as provided in section 29-2525 for cases when the punishment is capital, in all criminal cases when a defendant feels aggrieved by any opinion or decision of the court, he or she may order a bill of exceptions. The ordering, preparing, signing, filing, correcting, and amending of the bill of exceptions shall be governed by the rules established in such matters in civil cases.

Source:G.S.1873, c. 58, § 482, p. 829; R.S.1913, § 9123; C.S.1922, § 10148; C.S.1929, § 29-2020; R.S.1943, § 29-2020; Laws 1959, c. 120, § 1, p. 452; Laws 1961, c. 135, § 2, p. 390; Laws 1990, LB 829, § 1;    Laws 2015, LB268, § 17;    Referendum 2016, No. 426.

Note: The changes made to section 29-2020 by Laws 2015, LB 268, section 17, have been omitted because of the vote on the referendum at the November 2016 general election.


Cross References

Annotations

29-2021. Repealed. Laws 1959, c. 121,§4.

29-2022. Jury; conduct after submission.

When a case is finally submitted to the jury, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court. The officer having them in charge shall not suffer any communication to be made to them, or make any himself, except to ask them whether they have agreed upon a verdict, unless by order of the court; nor shall he communicate to anyone, before the verdict is delivered, any matter in relation to the state of their deliberations. If the jury are permitted to separate during the trial, they shall be admonished by the court that it is their duty not to converse with or suffer themselves to be addressed by any other person on the subject of the trial, nor to listen to any conversation on the subject; and it is their duty not to form or express an opinion thereon until the cause is finally submitted to them.

Source:G.S.1873, c. 58, § 484, p. 830; R.S.1913, § 9125; C.S.1922, § 10150; C.S.1929, § 29-2022; R.S.1943, § 29-2022.


Annotations

29-2023. Jury; discharged before verdict; effect; record.

In case a jury is discharged on account of sickness of a juror, or other accident or calamity requiring their discharge, or after they have been kept so long together that there is no probability of agreeing, the court shall, upon directing the discharge, order that the reasons for such discharge be entered upon the record and such discharge shall be without prejudice to the prosecution.

Source:G.S.1873, c. 58, § 485, p. 830; R.S.1913, § 9126; C.S.1922, § 10151; C.S.1929, § 29-2023; R.S.1943, § 29-2023; Laws 2018, LB193, § 58;    Laws 2020, LB387, § 45.    


Annotations

29-2024. Verdict; poll.

When the jury have agreed upon their verdict they must be conducted into court by the officer having them in charge. Before the verdict is accepted the jury may be polled at the request of either the prosecuting attorney or the defendant.

Source:G.S.1873, c. 58, § 486, p. 830; R.S.1913, § 9127; C.S.1922, § 10152; C.S.1929, § 29-2024; R.S.1943, § 29-2024.


Annotations

29-2025. Lesser included offense; attempt to commit; form of verdict.

Upon an indictment for an offense consisting of different degrees the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto; and upon an indictment for any offense the jury may find the defendant not guilty of the offense but guilty of an attempt to commit the same, where such an attempt is an offense.

Source:G.S.1873, c. 58, § 487, p. 830; R.S.1913, § 9128; C.S.1922, § 10153; C.S.1929, § 29-2025; R.S.1943, § 29-2025.


Annotations

29-2026. Repealed. Laws 1963, c. 163, § 1.

29-2026.01. Verdict; finding of value of property; when required.

When the indictment charges an offense against the property of another by larceny, embezzlement or obtaining under false pretenses, the jury, on conviction, shall ascertain and declare in its verdict the value of the property stolen, embezzled, or falsely obtained.

Source:Laws 1965, c. 146, § 1, p. 488.


Annotations

29-2027. Verdict in trials for murder; conviction by confession; sentencing procedure.

In all trials for murder the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it is murder in the first or second degree or manslaughter; and if such person is convicted by confession in open court, the court shall proceed by examination of witnesses in open court, to determine the degree of the crime, and shall pronounce sentence accordingly or as provided in sections 29-2519 to 29-2524 for murder in the first degree.

Source:G.S.1873, c. 58, § 489, p. 830; R.S.1913, § 9130; C.S.1922, § 10155; C.S.1929, § 29-2027; R.S.1943, § 29-2027; Laws 2002, Third Spec. Sess., LB 1, § 7;    Laws 2015, LB268, § 18;    Referendum 2016, No. 426.

Note: The changes made to section 29-2027 by Laws 2015, LB 268, section 18, have been omitted because of the vote on the referendum at the November 2016 general election.


Annotations

29-2028. Sexual assault; testimony; corroboration not required.

The testimony of a person who is a victim of a sexual assault as defined in sections 28-319 to 28-320.01 shall not require corroboration.

Source:Laws 1989, LB 443, § 1;    Laws 2006, LB 1199, § 13.    


Annotations

29-2101. New trial; grounds.

A new trial, after a verdict of conviction, may be granted, on the application of the defendant, for any of the following grounds affecting materially his or her substantial rights: (1) Irregularity in the proceedings of the court, of the prosecuting attorney, or of the witnesses for the state or in any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial; (2) misconduct of the jury, of the prosecuting attorney, or of the witnesses for the state; (3) accident or surprise which ordinary prudence could not have guarded against; (4) the verdict is not sustained by sufficient evidence or is contrary to law; (5) newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial; (6) newly discovered exculpatory DNA or similar forensic testing evidence obtained under the DNA Testing Act; or (7) error of law occurring at the trial.

Source:G.S.1873, c. 58, § 490, p. 831; R.S.1913, § 9131; C.S.1922, § 10156; C.S.1929, § 29-2101; R.S.1943, § 29-2101; Laws 2001, LB 659, § 11.    


Cross References

Annotations

29-2102. New trial; affidavits; when required; motion; hearing.

(1) The grounds set forth in subdivisions (2), (3), and (6) of section 29-2101 shall be supported by affidavits showing the truth of such grounds, and the grounds may be controverted by affidavits. The ground set forth in subdivision (5) of section 29-2101 shall be supported by evidence of the truth of the ground in the form of affidavits, depositions, or oral testimony.

(2) If the motion for new trial and supporting documents fail to set forth sufficient facts, the court may, on its own motion, dismiss the motion without a hearing. If the motion for new trial and supporting documents set forth facts which, if true, would materially affect the substantial rights of the defendant, the court shall cause notice of the motion to be served on the prosecuting attorney, grant a hearing on the motion, and determine the issues and make findings of fact and conclusions of law with respect thereto.

(3) In considering a motion for new trial based on the grounds set forth in subdivision (5) of section 29-2101, if the court finds that there is evidence materially affecting the substantial rights of the defendant which he or she could not with reasonable diligence have discovered and produced at trial, the court may, upon the motion of any party and following a hearing, vacate and set aside the judgment and release the person from custody or grant a new trial as appropriate.

Source:G.S.1873, c. 58, § 492, p. 831; R.S.1913, § 9132; C.S.1922, § 10157; C.S.1929, § 29-2102; R.S.1943, § 29-2102; Laws 2001, LB 659, § 12;    Laws 2015, LB245, § 1.    


Annotations

29-2103. New trial; motion; how and when made.

(1) A motion for new trial shall be made by written application and may be filed either during or after the term of the court at which the verdict was rendered.

(2) A motion for a new trial shall state the grounds under section 29-2101 which are the basis for the motion and shall be supported by evidence as provided in section 29-2102.

(3) A motion for new trial based on the grounds set forth in subdivision (1), (2), (3), (4), or (7) of section 29-2101 shall be filed within ten days after the verdict was rendered unless such filing is unavoidably prevented, and the grounds for such motion may be stated by directly incorporating the appropriate language of section 29-2101 without further particularity.

(4) A motion for new trial based on the grounds set forth in subdivision (5) of section 29-2101 shall be filed within a reasonable time after the discovery of the new evidence and cannot be filed more than five years after the date of the verdict, unless the motion and supporting documents show the new evidence could not with reasonable diligence have been discovered and produced at trial and such evidence is so substantial that a different result may have occurred.

(5) A motion for new trial based on the grounds set forth in subdivision (6) of section 29-2101 shall be filed within ninety days after a final order is issued under section 29-4123 or within ninety days after the hearing if no final order is entered, whichever occurs first.

Source:G.S.1873, c. 58, § 491, p. 831; Laws 1881, c. 33, § 1, p. 212; R.S.1913, § 9133; C.S.1922, § 10158; C.S.1929, § 29-2103; Laws 1935, c. 65, § 1, p. 223; C.S.Supp.,1941, § 29-2103; R.S.1943, § 29-2103; Laws 1947, c. 104, § 1, p. 293; Laws 2001, LB 659, § 13;    Laws 2015, LB245, § 2.    


Annotations

29-2104. Arrest of judgment; grounds.

A motion in arrest of judgment may be granted by the court for either of the following causes: (1) That the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; or (2) that the facts stated in the indictment do not constitute an offense.

Source:G.S.1873, c. 58, § 493, p. 831; R.S.1913, § 9134; C.S.1922, § 10159; C.S.1929, § 29-2104; R.S.1943, § 29-2104.


Annotations

29-2105. Arrest of judgment; defect of form insufficient.

No judgment can be arrested for a defect of form.

Source:G.S.1873, c. 58, § 494, p. 832; R.S.1913, § 9135; C.S.1922, § 10160; C.S.1929, § 29-2105; R.S.1943, § 29-2105.


Annotations

29-2106. Arrest of judgment; effect.

The effect of allowing a motion in arrest of judgment shall be to place the defendant in the same position with respect to the prosecution as before the indictment was found. If, from the evidence on the trial, there shall be sufficient reason to believe him guilty of an offense, the court shall order him to enter into a recognizance with sufficient security, conditioned for his appearance at the first day of the next term of the same court; otherwise the defendant shall be discharged.

Source:G.S.1873, c. 58, § 494, p. 832; R.S.1913, § 9135; C.S.1922, § 10160; C.S.1929, § 29-2105; R.S.1943, § 29-2106.


29-2201. Verdict of guilty; accused to be notified before sentence.

Before the sentence is pronounced, the defendant must be informed by the court of the verdict of the jury, and asked whether he has anything to say why judgment should not be passed against him.

Source:G.S.1873, c. 58, § 495, p. 832; R.S.1913, § 9136; C.S.1922, § 10161; C.S.1929, § 29-2201; R.S.1943, § 29-2201.


Annotations

29-2202. Verdict of guilty; judgment; when pronounced; suspension of sentence; when; bail.

Except as provided in sections 29-2292 to 29-2294 or 29-4801 to 29-4804, if the defendant has nothing to say, or if he or she shows no good and sufficient cause why judgment should not be pronounced, the court shall proceed to pronounce judgment as provided by law. The court, in its discretion, may for any cause deemed by it good and sufficient, suspend execution of sentence for a period not to exceed ninety days from the date judgment is pronounced. If the defendant is not at liberty under bail, he or she may be admitted to bail during the period of suspension of sentence as provided in section 29-901.

Source:G.S.1873, c. 58, § 496, p. 832; R.S.1913, § 9137; C.S.1922, § 10162; C.S.1929, § 29-2202; R.S.1943, § 29-2202; Laws 1951, c. 87, § 2, p. 251; Laws 2019, LB686, § 6;    Laws 2024, LB253, § 9.    
Operative Date: July 1, 2025


Cross References

Annotations

29-2203. Defense of not responsible by reason of insanity; how pleaded; burden of proof; notice before trial; examination of defendant; acquittal; further proceedings.

(1) Any person prosecuted for an offense may plead that he or she is not responsible by reason of insanity at the time of the offense and in such case the burden shall be upon the defendant to prove the defense of not responsible by reason of insanity by a preponderance of the evidence. No evidence offered by the defendant for the purpose of establishing his or her insanity shall be admitted in the trial of the case unless notice of intention to rely upon the insanity defense is given to the county attorney and filed with the court not later than sixty days before trial.

(2) Upon the filing of the notice the court, on motion of the state, may order the defendant to be examined at a time and place designated in the order, by one or more qualified experts, appointed by the court, to inquire into the sanity or insanity of the defendant at the time of the commission of the alleged offense. The court may order that the examination be conducted at one of the regional centers or at any appropriate facility. The presence of counsel at the examination shall be within the discretion of the court. The results of such examination shall be sent to the court and to the prosecuting attorney. In misdemeanor or felony cases, the defendant may request the court to order the prosecuting attorney to permit the defendant to inspect and copy the results of such examination pursuant to the procedures set forth in sections 29-1912 to 29-1921. In the interest of justice and good cause shown the court may waive the requirements provided in this section.

(3) If the trier of fact acquits the defendant on the grounds of insanity, the verdict shall reflect whether the trier acquits him or her on that ground alone or on other grounds as well. When the defendant is acquitted solely on the ground of insanity, the court shall have exclusive jurisdiction over the defendant for disposition consistent with the terms of this section and sections 29-3701 to 29-3704.

(4) For purposes of this section, insanity does not include any temporary condition that was proximately caused by the voluntary ingestion, inhalation, injection, or absorption of intoxicating liquor, any drug or other mentally debilitating substance, or any combination thereof.

Source:Laws 1909, c. 74, § 1, p. 333; R.S.1913, § 9139; C.S.1922, § 10164; C.S.1929, § 29-2204; R.S.1943, § 29-2203; Laws 1973, LB 501, § 1;    Laws 1976, LB 806, § 17; Laws 1981, LB 213, § 2;    Laws 1984, LB 183, § 1;    Laws 2011, LB100, § 2.    


Cross References

Annotations

29-2204. Sentence for felony other than Class III, IIIA, or IV felony; court; duties; study of offender; when; defendant under eighteen years of age; disposition.

(1) Except when a term of life imprisonment is required by law, in imposing a sentence upon an offender for any class of felony other than a Class III, IIIA, or IV felony, the court shall fix the minimum and the maximum terms of the sentence to be served within the limits provided by law. The maximum term shall not be greater than the maximum limit provided by law, and:

(a) The minimum term fixed by the court shall be any term of years less than the maximum term imposed by the court; or

(b) The minimum term shall be the minimum limit provided by law.

(2) When a maximum term of life is imposed by the court for a Class IB felony, the minimum term fixed by the court shall be:

(a) Any term of years not less than the minimum limit provided by law; or

(b) A term of life imprisonment.

(3) When a maximum term of life is imposed by the court for a Class IA felony, the minimum term fixed by the court shall be:

(a) A term of life imprisonment; or

(b) Any term of years not less than the minimum limit provided by law after consideration of the mitigating factors in section 28-105.02, if the defendant was under eighteen years of age at the time he or she committed the crime for which he or she was convicted.

(4) When the court is of the opinion that imprisonment may be appropriate but desires more detailed information as a basis for determining the sentence to be imposed than has been provided by the presentence report required by section 29-2261, the court may commit an offender to the Department of Correctional Services. During that time, the department shall conduct a complete study of the offender as provided in section 29-2204.03.

(5) Except when a term of life is required by law, whenever the defendant was under eighteen years of age at the time he or she committed the crime for which he or she was convicted, the court may, in its discretion, instead of imposing the penalty provided for the crime, make such disposition of the defendant as the court deems proper under the Nebraska Juvenile Code.

(6)(a) When imposing an indeterminate sentence upon an offender under this section, the court shall:

(i) Advise the offender on the record the time the offender will serve on his or her minimum term before attaining parole eligibility assuming that no good time for which the offender will be eligible is lost; and

(ii) Advise the offender on the record the time the offender will serve on his or her maximum term before attaining mandatory release assuming that no good time for which the offender will be eligible is lost.

(b) If any discrepancy exists between the statement of the minimum limit of the sentence and the statement of parole eligibility or between the statement of the maximum limit of the sentence and the statement of mandatory release, the statements of the minimum limit and the maximum limit shall control the calculation of the offender's term.

(c) If the court imposes more than one sentence upon an offender or imposes a sentence upon an offender who is at that time serving another sentence, the court shall state whether the sentences are to be concurrent or consecutive.

Source:G.S.1873, c. 58, § 498, p. 832; R.S.1913, § 9140; C.S.1922, § 10165; C.S.1929, § 29-2205; R.S.1943, § 29-2204; Laws 1974, LB 620, § 7;    Laws 1988, LB 790, § 3;    Laws 1993, LB 31, § 9;    Laws 1993, LB 529, § 1;    Laws 1993, LB 627, § 1;    Laws 1994, LB 988, § 8;    Laws 1995, LB 371, § 12;    Laws 1997, LB 364, § 14;    Laws 1998, LB 1073, § 10;    Laws 2002, Third Spec. Sess., LB 1, § 8;    Laws 2011, LB12, § 2;    Laws 2013, LB561, § 2;    Laws 2015, LB268, § 19;    Laws 2015, LB605, § 60;    Referendum 2016, No. 426.

Note: The changes made to section 29-2204 by Laws 2015, LB 268, section 19, have been omitted because of the vote on the referendum at the November 2016 general election.


Cross References

Annotations

29-2204.01. Repealed. Laws 2015, LB 605, § 112.

29-2204.02. Sentence for Class III, IIIA, or IV felony; court; duties; defendant under eighteen years of age; disposition.

(1) Except when a term of probation is required by law as provided in subsection (2) of this section or except as otherwise provided in subsection (4) of this section, in imposing a sentence upon an offender for a Class III, IIIA, or IV felony, the court shall:

(a) Impose a determinate sentence of imprisonment within the applicable range in section 28-105; and

(b) Impose a sentence of post-release supervision, under the jurisdiction of the Office of Probation Administration, within the applicable range in section 28-105.

(2) If the criminal offense is a Class IV felony, the court shall impose a sentence of probation unless:

(a) The defendant is concurrently or consecutively sentenced to imprisonment for any felony other than another Class IV felony;

(b) The defendant has been deemed a habitual criminal pursuant to section 29-2221; or

(c) There are substantial and compelling reasons why the defendant cannot effectively and safely be supervised in the community, including, but not limited to, the criteria in subsections (2) and (3) of section 29-2260. Unless other reasons are found to be present, that the offender has not previously succeeded on probation is not, standing alone, a substantial and compelling reason.

(3) If a sentence of probation is not imposed, the court shall state its reasoning on the record, advise the defendant of his or her right to appeal the sentence, and impose a sentence as provided in subsection (1) of this section.

(4) For any sentence of imprisonment for a Class III, IIIA, or IV felony for an offense committed on or after August 30, 2015, imposed consecutively or concurrently with (a) a sentence for a Class III, IIIA, or IV felony for an offense committed prior to August 30, 2015, or (b) a sentence of imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony, the court shall impose an indeterminate sentence within the applicable range in section 28-105 that does not include a period of post-release supervision, in accordance with the process set forth in section 29-2204.

(5) For any sentence of imprisonment for a misdemeanor imposed consecutively or concurrently with a sentence of imprisonment for a Class III, IIIA, or IV felony for an offense committed on or after August 30, 2015, the court shall impose a determinate sentence within the applicable range in section 28-106 unless the person is also committed to the Department of Correctional Services in accordance with section 29-2204 for (a) a sentence of imprisonment for a Class III, IIIA, or IV felony committed prior to August 30, 2015, or (b) a sentence of imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony.

(6) If the defendant was under eighteen years of age at the time he or she committed the crime for which he or she was convicted, the court may, in its discretion, instead of imposing the penalty provided for the crime, make such disposition of the defendant as the court deems proper under the Nebraska Juvenile Code.

(7)(a) When imposing a determinate sentence upon an offender under this section, the court shall:

(i) Advise the offender on the record the time the offender will serve on his or her term of imprisonment before his or her term of post-release supervision assuming that no good time for which the offender will be eligible is lost;

(ii) Advise the offender on the record the time the offender will serve on his or her term of post-release supervision; and

(iii) When imposing a sentence following revocation of post-release supervision, advise the offender on the record the time the offender will serve on his or her term of imprisonment, including credit for time served, assuming that no good time for which the offender will be eligible is lost.

(b) If a period of post-release supervision is required but not imposed by the sentencing court, the term of post-release supervision shall be the minimum provided by law.

(c) If the court imposes more than one sentence upon an offender or imposes a sentence upon an offender who is at that time serving another sentence, the court shall state whether the sentences are to be concurrent or consecutive.

(d) If the offender has been sentenced to two or more determinate sentences and one or more terms of post-release supervision, the offender shall serve all determinate sentences before being released on post-release supervision.

Source:Laws 2015, LB605, § 61;    Laws 2016, LB1094, § 11.    


Cross References

Annotations

29-2204.03. Study of offender; commitment to Department of Correctional Services; written report; costs.

(1) When the court is of the opinion that imprisonment may be appropriate but desires more detailed information as a basis for determining the sentence to be imposed than has been provided by the presentence report required by section 29-2261, the court shall commit an offender to the Department of Correctional Services for a period not exceeding ninety days. The department shall conduct a complete study of the offender during that time, inquiring into such matters as his or her previous delinquency or criminal experience, social background, capabilities, and mental, emotional, and physical health and the rehabilitative resources or programs which may be available to suit his or her needs.

(2) By the expiration of the period of commitment or by the expiration of such additional time as the court shall grant, not exceeding a further period of ninety days, the offender shall be returned to the court for sentencing and the court shall be provided with a written report of the results of the study, including whatever recommendations the department believes will be helpful to a proper resolution of the case. After receiving the report and the recommendations, the court shall proceed to sentence the offender in accordance with section 29-2204 or 29-2204.02. The term of the sentence shall run from the date of original commitment under this section.

(3) In order to encourage the use of this procedure in appropriate cases, all costs incurred during the period the defendant is held in a state institution under this section shall be a responsibility of the state and the county shall be liable only for the cost of delivering the defendant to the institution and the cost of returning him or her to the appropriate court for sentencing or such other disposition as the court may then deem appropriate.

Source:Laws 2015, LB605, § 62.    


Annotations

29-2205. Repealed. Laws 1987, LB 665, § 3.

29-2206. Fine and costs; commitment until paid; installments; deduction from bond; suspension or revocation of motor vehicle operator's license.

(1)(a) In all cases in which courts or magistrates have now or may hereafter have the power to punish offenses, either in whole or in part, by requiring the offender to pay fines or costs, or both, such courts or magistrates may make it a part of the sentence that the party stand committed and be imprisoned in the jail of the proper county until the fines or costs are paid or secured to be paid or the offender is otherwise discharged according to law if the court or magistrate determines that the offender has the financial ability to pay such fines or costs. The court or magistrate may make such determination at the sentencing hearing or at a separate hearing prior to sentencing. A separate hearing shall not be required. In making such determination, the court or magistrate may consider the information or evidence adduced in an earlier proceeding pursuant to section 29-3902, 29-3903, 29-3906, or 29-3916. At any such hearing, the offender shall have the opportunity to present information as to his or her income, assets, debts, or other matters affecting his or her financial ability to pay. Following such hearing and prior to imposing sentence, the court or magistrate shall determine the offender's financial ability to pay the fines or costs, including his or her financial ability to pay in installments under subsection (2) of this section.

(b) If the court or magistrate determines that the offender is financially able to pay the fines or costs and the offender refuses to pay, the court or magistrate may:

(i) Make it a part of the sentence that the offender stand committed and be imprisoned in the jail of the proper county until the fines or costs are paid or secured to be paid or the offender is otherwise discharged according to law; or

(ii) Order the offender, in lieu of paying such fines or costs, to complete community service for a specified number of hours pursuant to sections 29-2277 to 29-2279.

(c) If the court or magistrate determines that the offender is financially unable to pay the fines or costs, the court or magistrate:

(i) Shall either:

(A) Impose a sentence without such fines or costs; or

(B) Enter an order pursuant to subdivision (1)(d) of this section discharging the offender of such fines or costs; and

(ii) May order, as a term of the offender's sentence or as a condition of probation, that he or she complete community service for a specified number of hours pursuant to sections 29-2277 to 29-2279.

(d) An order discharging the offender of any fines or costs shall be set forth in or accompanied by a judgment entry. Such order shall operate as a complete release of such fines or costs.

(2) If the court or magistrate determines, pursuant to subsection (1) of this section, that an offender is financially unable to pay such fines or costs in one lump sum but is financially capable of paying in installments, the court or magistrate shall make arrangements suitable to the court or magistrate and to the offender by which the offender may pay in installments. The court or magistrate shall enter an order specifying the terms of such arrangements and the dates on which payments are to be made. When the judgment of conviction provides for the suspension or revocation of a motor vehicle operator's license and the court authorizes the payment of fines or costs by installments, the revocation or suspension shall be effective as of the date of judgment.

(3) As an alternative to a lump-sum payment or as an alternative or in conjunction with installment payments, the court or magistrate may deduct costs from a bond posted by the offender to the extent that such bond is not otherwise encumbered by a valid lien, levy, execution, or assignment to counsel of record or the person who posted the bond. As an alternative to a lump-sum payment or as an alternative or in conjunction with installment payments, the court or magistrate may, with the consent of the offender, deduct fines from a bond posted by the offender to the extent that such bond is not otherwise encumbered by a valid lien, levy, execution, or assignment to counsel of record or the person who posted the bond.

Source:G.S.1873, c. 58, § 500, p. 833; R.S.1913, § 9142; C.S.1922, § 10167; C.S.1929, § 29-2207; R.S.1943, § 29-2206; Laws 1971, LB 1010, § 2;    Laws 1974, LB 966, § 1;    Laws 1979, LB 111, § 1;    Laws 1988, LB 370, § 6;    Laws 2012, LB722, § 1;    Laws 2017, LB259, § 5;    Laws 2020, LB881, § 23.    


Annotations

29-2206.01. Fine and costs; payment of installments; violation; penalty; hearing.

Installments provided for in section 29-2206 shall be paid pursuant to the order entered by the court or magistrate. Any person who fails to comply with the terms of such order shall be liable for punishment for contempt, unless such person has the leave of the court or magistrate in regard to such noncompliance or such person requests a hearing pursuant to section 29-2412 and establishes at such hearing that he or she is financially unable to pay.

Source:Laws 1971, LB 1010, § 3;    Laws 2017, LB259, § 6.    


29-2207. Judgment for costs upon conviction; requirement.

In every case of conviction of any person for any felony or misdemeanor, it shall be the duty of the court or magistrate to render judgment for the costs of prosecution against the person convicted and remit the assessment as provided in section 33-157.

Source:G.S.1873, c. 58, § 501, p. 833; R.S.1913, § 9143; C.S.1922, § 10168; C.S.1929, § 29-2208; R.S.1943, § 29-2207; Laws 2010, LB510, § 2.    


Annotations

29-2208. Fines or costs; person financially unable to pay; hearing; determination; court or magistrate; powers; order; operate as release.

(1) A person who has been ordered to pay fines or costs and who has not been arrested or brought into custody as described in subdivision (1)(a) of section 29-2412 but who believes himself or herself to be financially unable to pay such fines or costs may request a hearing to determine such person's financial ability to pay such fines or costs. The hearing shall be scheduled on the first regularly scheduled court date following the date of the request. Pending the hearing, the person shall not be arrested or brought into custody for failure to pay such fines or costs or failure to appear before a court or magistrate on the due date of such fines or costs.

(2) At the hearing, the person shall have the opportunity to present information as to his or her income, assets, debts, or other matters affecting his or her financial ability to pay. Following the hearing, the court or magistrate shall determine the person's financial ability to pay the fines or costs, including his or her financial ability to pay in installments as described in section 29-2206.

(3) If the court or magistrate determines that the person is financially able to pay the fines or costs and the person refuses to pay, the court or magistrate may:

(a) Deny the person's request for relief; or

(b) Enter an order pursuant to subsection (5) of this section discharging the person of such fines or costs and order the person to complete community service for a specified number of hours pursuant to sections 29-2277 to 29-2279.

(4) If the court or magistrate determines that the person is financially unable to pay the fines or costs, the court or magistrate:

(a) Shall either:

(i) Enter an order pursuant to subsection (5) of this section discharging the person of such fines or costs; or

(ii) If the person is subject to an order to pay installments pursuant to section 29-2206, the court or magistrate shall either enter an order pursuant to subsection (5) of this section discharging the person of such obligation or make any necessary modifications to the order specifying the terms of the installment payments as justice may require and that will enable the person to pay the fines or costs; and

(b) May order the person to complete community service for a specified number of hours pursuant to sections 29-2277 to 29-2279.

(5) An order discharging the person of fines or costs shall be set forth in or accompanied by a judgment entry. Such order shall operate as a complete release of such fines or costs.

Source:Laws 2017, LB259, § 12.    


29-2209. Repealed. Laws 1984, LB 13, § 90.

29-2210. Repealed. Laws 1971, LB 680, § 32.

29-2211. Repealed. Laws 1957, c. 106, § 22.

29-2212. Repealed. Laws 1961, c. 113, § 3.

29-2213. Repealed. Laws 1957, c. 106, § 22.

29-2214. Repealed. Laws 1957, c. 106, § 22.

29-2215. Repealed. Laws 1984, LB 13, § 90.

29-2216. Repealed. Laws 1984, LB 13, § 90.

29-2217. Repealed. Laws 1971, LB 680, § 32.

29-2218. Repealed. Laws 1971, LB 680, § 32.

29-2219. Repealed. Laws 1984, LB 13, § 90.

29-2220. Repealed. Laws 1957, c. 106, § 22.

29-2221. Habitual criminal, defined; procedure for determination; hearing; penalties; effect of pardon.

(1) Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state or by the United States or once in this state and once at least in any other state or by the United States, for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be a habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult correctional facility for a mandatory minimum term of ten years and a maximum term of not more than sixty years, except that:

(a) If the felony committed is in violation of section 28-303, 28-304, 28-308, 28-313, 28-319, 28-319.01, 28-502, 28-929, or 28-1222, and at least one of the habitual criminal's prior felony convictions was for a violation of one of the sections listed in this subdivision or of a similar statute in another state or of the United States, the mandatory minimum term shall be twenty-five years and the maximum term not more than sixty years;

(b) If the felony committed is in violation of subsection (3) of section 28-306 and at least one of the prior convictions is in violation of subsection (3) of section 28-306 and the other is in violation of one of the sections set forth in subdivision (a) of this subsection or if the felony committed is in violation of one of the sections set forth in subdivision (a) of this subsection and both of the prior convictions are in violation of subsection (3) of section 28-306, the mandatory minimum term shall be twenty-five years and the maximum term not more than sixty years;

(c) If the felony committed and at least one of the prior felony convictions do not involve sexual contact, sexual penetration, the threat to inflict serious bodily injury or death on another person, the infliction of serious bodily injury on another person, a deadly or dangerous weapon, or a firearm, the mandatory minimum term shall be three years and the maximum term not more than the maximum term for the felony committed or twenty years, whichever is greater. For this subdivision (1)(c) to apply, no prior felony conviction may be a violation described in subdivision (1)(a) of this section; and

(d) If a greater punishment is otherwise provided by statute, the law creating the greater punishment shall govern.

(2) When punishment of an accused as a habitual criminal is sought, the facts with reference thereto shall be charged in the indictment or information which contains the charge of the felony upon which the accused is prosecuted, but the fact that the accused is charged with being a habitual criminal shall not be an issue upon the trial of the felony charge and shall not in any manner be disclosed to the jury. If the accused is convicted of a felony, before sentence is imposed a hearing shall be had before the court alone as to whether such person has been previously convicted of prior felonies. The court shall fix a time for the hearing and notice thereof shall be given to the accused at least three days prior thereto. At the hearing, if the court finds from the evidence submitted that the accused has been convicted two or more times of felonies and sentences imposed therefor by the courts of this or any other state or by the United States, the court shall sentence such person so convicted as a habitual criminal.

(3) If the person so convicted shows to the satisfaction of the court before which the conviction was had that he or she was released from imprisonment upon either of such sentences upon a pardon granted for the reason that he or she was innocent, such conviction and sentence shall not be considered as such under this section and section 29-2222.

Source:Laws 1921, c. 131, § 1, p. 543; C.S.1922, § 10177; C.S.1929, § 29-2217; Laws 1937, c. 68, § 1, p. 252; C.S.Supp.,1941, § 29-2217; R.S.1943, § 29-2221; Laws 1947, c. 105, § 1, p. 294; Laws 1967, c. 179, § 1, p. 497; Laws 1993, LB 31, § 10;    Laws 1995, LB 371, § 13;    Laws 2006, LB 1199, § 14;    Laws 2023, LB50, § 7.    


Annotations

29-2222. Hearing; copy of former judgment as evidence.

At the hearing of any person charged with being a habitual criminal, a duly authenticated copy of the former judgment and commitment, from any court in which such judgment and commitment was had, for any of such crimes formerly committed by the party so charged, shall be competent and prima facie evidence of such former judgment and commitment.

Source:Laws 1921, c. 131, § 2, p. 543; C.S.1922, § 10178; C.S.1929, § 29-2218; Laws 1937, c. 68, § 2, p. 252; C.S.Supp.,1941, § 29-2218; R.S.1943, § 29-2222; Laws 1947, c. 105, § 2, p. 295.


Annotations

29-2223. Repealed. Laws 1971, LB 680, § 32.

29-2224. Repealed. Laws 1971, LB 680, § 32.

29-2225. Repealed. Laws 1971, LB 680, § 32.

29-2226. Repealed. Laws 1971, LB 680, § 32.

29-2227. Repealed. Laws 1971, LB 680, § 32.

29-2228. Repealed. Laws 1971, LB 680, § 32.

29-2229. Repealed. Laws 1971, LB 680, § 32.

29-2230. Repealed. Laws 1971, LB 680, § 32.

29-2231. Repealed. Laws 1971, LB 680, § 32.

29-2232. Repealed. Laws 1971, LB 680, § 32.

29-2233. Repealed. Laws 1971, LB 680, § 32.

29-2234. Repealed. Laws 1971, LB 680, § 32.

29-2235. Repealed. Laws 1971, LB 680, § 32.

29-2236. Repealed. Laws 1971, LB 680, § 32.

29-2237. Repealed. Laws 1971, LB 680, § 32.

29-2238. Repealed. Laws 1971, LB 680, § 32.

29-2239. Repealed. Laws 1971, LB 680, § 32.

29-2240. Repealed. Laws 1971, LB 680, § 32.

29-2241. Repealed. Laws 1971, LB 680, § 32.

29-2242. Repealed. Laws 1971, LB 680, § 32.

29-2243. Probation officers; performance metrics.

The office shall establish performance metrics for probation officers. Such metrics should measure efficacy in providing rehabilitative and reentry services to probationers. Such metrics should:

(1) Reflect a balanced approach that considers both compliance and enforcement measures as well as outcomes related to rehabilitation, reintegration, and public safety;

(2) Include indicators of progress for probationers, such as successful completion of treatment programs, educational attainment, employment status, and compliance with conditions of supervision;

(3) Emphasize the importance of providing supportive services, fostering positive relationships with probationers, and promoting successful community reentry; and

(4) Be aligned with best practices, stakeholder input, and the evolving goals and priorities of the criminal justice system.

Source:Laws 2024, LB631, § 24.    
Effective Date: July 19, 2024


29-2244. Assistant probation officers; pilot program; purpose; report.

(1) The probation administrator shall create a pilot program to hire additional assistant probation officers as provided in this section.

(2) The pilot program shall be limited to a single probation district.

(3) Assistant probation officers hired under this section shall assist probation officers in the supervision of high-risk caseloads.

(4) The purpose of the pilot program is to determine whether additional support for probation officers results in probationers completing their terms of probation with fewer violations.

(5) On or before June 1, 2024, the probation administrator shall electronically submit a report to the Judiciary Committee of the Legislature regarding the pilot program. The report shall include the total number of persons admitted into the pilot program, including demographic information, criminal history, and top needs according to the results of a risk assessment; conditions of supervision; the total number of violations of supervision conditions; the number of supervision discharges by type of discharge; and recidivism rates.

Source:Laws 2023, LB50, § 13.    


29-2245. Probationer incentive program; pilot program; report.

(1) The probation administrator shall create a pilot program to establish a probationer incentive program as provided in this section.

(2) The pilot program shall be limited to a single probation district. Such district shall be chosen by the State Court Administrator.

(3) The pilot program shall establish an incentive fund to be used for the purchase of gift cards, vouchers, and other tangible rewards for probationers who are succeeding at probation, in order to encourage continued success and reduce recidivism. The incentives shall be awarded at the discretion of probation officers, subject to policies and guidelines of the office.

(4) On or before June 1, 2024, the probation administrator shall electronically submit a report to the Judiciary Committee of the Legislature regarding the pilot program.

Source:Laws 2023, LB50, § 14.    


29-2246. Terms, defined.

For purposes of the Nebraska Probation Administration Act and sections 43-2,123.01 and 83-1,102 to 83-1,104, unless the context otherwise requires:

(1) Association means the Nebraska District Court Judges Association;

(2) Court means a district court, county court, or juvenile court as defined in section 43-245;

(3) Office means the Office of Probation Administration;

(4) Probation means a sentence under which a person found guilty of a crime upon verdict or plea or adjudicated delinquent or in need of special supervision is released by a court subject to conditions imposed by the court and subject to supervision. Probation includes post-release supervision and supervision ordered by a court pursuant to a deferred judgment under section 29-2292 or 29-4803;

(5) Probationer means a person sentenced to probation or post-release supervision;

(6) Probation officer means an employee of the system who supervises probationers and conducts presentence, predisposition, or other investigations as may be required by law or directed by a court in which he or she is serving or performs such other duties as authorized pursuant to section 29-2258, except unpaid volunteers from the community;

(7) Juvenile probation officer means any probation officer who supervises probationers of a separate juvenile court;

(8) Juvenile intake probation officer means an employee of the system who is called upon by a law enforcement officer in accordance with section 43-250 to make a decision regarding the furtherance of a juvenile's detention;

(9) Chief probation officer means the probation officer in charge of a probation district;

(10) System means the Nebraska Probation System;

(11) Administrator means the probation administrator;

(12) Non-probation-based program or service means a program or service established within the district, county, or juvenile courts and provided to individuals not sentenced to probation who have been charged with or convicted of a crime for the purpose of diverting the individual from incarceration or to provide treatment for issues related to the individual's criminogenic needs. Non-probation-based programs or services include, but are not limited to, problem solving courts established pursuant to section 24-1302 and the treatment of problems relating to substance abuse, mental health, sex offenses, or domestic violence;

(13) Post-release supervision means the portion of a split sentence following a period of incarceration under which a person found guilty of a crime upon verdict or plea is released by a court subject to conditions imposed by the court and subject to supervision by the office; and

(14) Rules and regulations means policies and procedures written by the office and approved by the Supreme Court.

Source:Laws 1971, LB 680, § 1;    Laws 1972, LB 1051, § 1;    Laws 1984, LB 13, § 61;    Laws 1986, LB 529, § 32;    Laws 2001, LB 451, § 1;    Laws 2005, LB 538, § 5;    Laws 2008, LB1014, § 18;    Laws 2015, LB605, § 63;    Laws 2016, LB919, § 3;    Laws 2019, LB686, § 7;    Laws 2024, LB253, § 10.    
Operative Date: July 1, 2025


29-2247. Nebraska District Court Judges Association; created; duties.

The Nebraska District Court Judges Association is hereby created which shall consist of all the active judges of the district courts of this state and their successors in office. The association shall:

(1) Meet at least once during each calendar year;

(2) Select from its membership officers thereof; and

(3) Adopt such bylaws and rules as may be necessary or proper for the conduct of its meetings, the exercise of its powers, and the performance of its duties and delegate to one or more of its members such powers as the association deems necessary to carry out its responsibilities.

Source:Laws 1971, LB 680, § 2.    


29-2248. Association; duties.

The association shall:

(1) Encourage development and implementation of uniform criteria for sentencing criminals;

(2) Participate in planning and presenting institutes and seminars for all judges in this state who sentence criminals or juveniles to discuss problems related to sentencing criminals or juveniles;

(3) Participate in planning and presenting orientation programs for new judges, such programs to include discussions of sentencing alternatives, procedures, and purposes;

(4) Visit from time to time correctional facilities of this state;

(5) Encourage creation and development of community resources of value to the probation system;

(6) Conduct such other programs of whatever nature of interest to its members;

(7) Exercise all powers and perform all duties necessary and proper to carry out its responsibilities; and

(8) Participate in planning and presenting institutes and seminars for all county employees who work in the judicial branch of government.

Source:Laws 1971, LB 680, § 3;    Laws 1979, LB 536, § 2;    Laws 2001, LB 489, § 9.    


29-2249. Office of Probation Administration; created; personnel.

The Office of Probation Administration is hereby created within the judicial branch of government and directly responsible to the Supreme Court. The office shall consist of the probation administrator, the Nebraska Probation System, and such other employees as may be necessary to carry out the functions of the Nebraska Probation System.

Source:Laws 1971, LB 680, § 4;    Laws 1978, LB 625, § 7;    Laws 1979, LB 536, § 3;    Laws 1986, LB 529, § 33.    


29-2249.01. Repealed. Laws 1986, LB 529, § 58.

29-2249.02. Repealed. Laws 1986, LB 529, § 58.

29-2249.03. Repealed. Laws 1986, LB 529, § 58.

29-2249.04. Transferred employees; benefits.

Accrued leave and benefits for separate juvenile court probation employees and municipal court employees who have become state employees pursuant to law shall be subject to this section.

(1) The city or county shall transfer all accrued sick leave of such employees up to the maximum number of accumulated hours for sick leave allowed by the state for state probation officers and the city or county shall reimburse the state in an amount equal to twenty-five percent of the value of such accrued sick leave hours based on the straight-time rate of pay for the employee. For any accrued sick leave hours of an employee which are in excess of the amount that can be transferred, the city or county shall reimburse the employee for twenty-five percent of the value of the sick leave hours based on the straight-time rate of pay for the employee.

(2) The transferred employee may transfer the maximum amount of accrued annual leave earned as an employee of the city or county allowed by the state. The city or county shall reimburse the state in an amount equal to one hundred percent of the value of the hours of accrued annual leave transferred. The city or county shall reimburse the transferred employee in an amount equal to one hundred percent of the hours of any accrued annual leave in excess of the amount which may be transferred based on the employee's straight-time rate of pay at the time of transfer.

(3) Any employee transferred to the Office of Probation Administration shall not lose any accrual rate value for his or her sick leave or vacation leave as a result of such transfer. The employee may use each year's service with the city or county as credit in qualifying for accrual rates with the state's sick leave and vacation leave programs.

(4) When accrued sick leave and vacation leave for a transferred employee are at a greater rate value than allowed by the state's sick leave and vacation leave plans, the city or county shall pay to the state on July 1, 1985, an amount equal to the difference between the value of such benefits allowed by the city or county and by the state based on, at the time of transfer, twenty-five percent of the employee's straight-time rate of pay for the sick leave and one hundred percent of the employee's straight-time rate of pay for vacation leave. The state may receive reimbursement based on such difference in rate values not later than July 1, 1990.

(5) The transferred employee shall not receive any additional accrual rate value for state benefits until the employee meets the qualifications for the increased accrual rates pursuant to the state's requirements.

(6) The transferred employee shall participate in and be covered by the Nebraska State Insurance Program, sections 84-1601 to 84-1615, on July 1, 1985.

Source:Laws 1984, LB 13, § 64;    Laws 1986, LB 529, § 34.    


Cross References

29-2250. Office of Probation Administration; duties.

The office shall:

(1) Supervise and administer the system;

(2) Establish probation policies and standards for the system, with the concurrence of the Supreme Court; and

(3) Supervise offenders placed on probation in another state who are within the state pursuant to the Interstate Compact for Adult Offender Supervision.

Source:Laws 1971, LB 680, § 5;    Laws 1978, LB 625, § 8;    Laws 1979, LB 536, § 4;    Laws 1986, LB 529, § 35;    Laws 2003, LB 46, § 4.    

Note: Laws 2003, LB 46, section 51, provided this section became operative "when thirty-five states have adopted the Interstate Compact for Adult Offender Supervision". By June 2002, the compact had reached this threshold. (See www.interstatecompact.org.) LB 46 became effective May 24, 2003.


Cross References

29-2251. Probation administrator; appointment; qualifications.

The Supreme Court shall appoint a probation administrator who shall be a person with appropriate experience in the field of probation or with training in relevant disciplines at a recognized college or university and who shall serve at the pleasure of the Supreme Court.

Source:Laws 1971, LB 680, § 6;    Laws 1979, LB 536, § 5;    Laws 1986, LB 529, § 36.    


29-2252. Probation administrator; duties.

The administrator shall:

(1) Supervise and administer the office;

(2) Establish and maintain policies, standards, and procedures for the system, with the concurrence of the Supreme Court;

(3) Prescribe and furnish such forms for records and reports for the system as shall be deemed necessary for uniformity, efficiency, and statistical accuracy;

(4) Establish minimum qualifications for employment as a probation officer in this state and establish and maintain such additional qualifications as he or she deems appropriate for appointment to the system. Qualifications for probation officers shall be established in accordance with subsection (4) of section 29-2253. An ex-offender released from a penal complex or a county jail may be appointed to a position of deputy probation or parole officer. Such ex-offender shall maintain a record free of arrests, except for minor traffic violations, for one year immediately preceding his or her appointment;

(5) Establish and maintain advanced periodic inservice training requirements for the system;

(6) Cooperate with all agencies, public or private, which are concerned with treatment or welfare of persons on probation. All information provided to the Nebraska Commission on Law Enforcement and Criminal Justice for the purpose of providing access to such information to law enforcement agencies through the state's criminal justice information system shall be provided in a manner that allows such information to be readily accessible through the main interface of the system;

(7) Organize and conduct training programs for probation officers. Training shall include the proper use of a risk and needs assessment, risk-based supervision strategies, relationship skills, cognitive behavioral interventions, community-based resources, criminal risk factors, and targeting criminal risk factors to reduce recidivism and the proper use of a matrix of administrative sanctions, custodial sanctions, and rewards developed pursuant to subdivision (18) of this section. All probation officers employed on or after August 30, 2015, shall complete the training requirements set forth in this subdivision;

(8) Collect, develop, and maintain statistical information concerning probationers, probation practices, and the operation of the system and provide the Community Corrections Division of the Nebraska Commission on Law Enforcement and Criminal Justice with the information needed to compile the report required in section 47-624;

(9) Interpret the probation program to the public with a view toward developing a broad base of public support;

(10) Conduct research for the purpose of evaluating and improving the effectiveness of the system. Subject to the availability of funding, the administrator shall contract with an independent contractor or academic institution for evaluation of existing community corrections facilities and programs operated by the office;

(11) Adopt and promulgate such rules and regulations as may be necessary or proper for the operation of the office or system. The administrator shall adopt and promulgate rules and regulations for transitioning individuals on probation across levels of supervision and discharging them from supervision consistent with evidence-based practices. The rules and regulations shall ensure supervision resources are prioritized for individuals who are high risk to reoffend, require transitioning individuals down levels of supervision intensity based on assessed risk and months of supervision without a reported major violation, and establish incentives for earning discharge from supervision based on compliance;

(12) Transmit a report during each even-numbered year to the Supreme Court on the operation of the office for the preceding two calendar years which shall include a historical analysis of probation officer workload, including participation in non-probation-based programs and services. The report shall be transmitted by the Supreme Court to the Governor and the Clerk of the Legislature. The report submitted to the Clerk of the Legislature shall be submitted electronically;

(13) Administer the payment by the state of all salaries, travel, and expenses authorized under section 29-2259 incident to the conduct and maintenance of the office;

(14) Use the funds provided under section 29-2262.07 to augment operational or personnel costs associated with the development, implementation, and evaluation of enhanced probation-based programs and non-probation-based programs and services in which probation personnel or probation resources are utilized pursuant to an interlocal agreement authorized by subdivision (16) of this section and to purchase services to provide such programs aimed at enhancing adult probationer or non-probation-based program participant supervision in the community and treatment needs of probationers and non-probation-based program participants. Enhanced probation-based programs include, but are not limited to, specialized units of supervision, related equipment purchases and training, and programs that address a probationer's vocational, educational, mental health, behavioral, or substance abuse treatment needs;

(15) Ensure that any risk or needs assessment instrument utilized by the system be periodically validated;

(16) Have the authority to enter into interlocal agreements in which probation resources or probation personnel may be utilized in conjunction with or as part of non-probation-based programs and services. Any such interlocal agreement shall comply with section 29-2255;

(17) Collaborate with the Community Corrections Division of the Nebraska Commission on Law Enforcement and Criminal Justice and the Division of Parole Supervision to develop rules governing the participation of parolees in community corrections programs operated by the Office of Probation Administration;

(18) Develop a matrix of rewards for compliance and positive behaviors and graduated administrative sanctions and custodial sanctions for use in responding to and deterring substance abuse violations and technical violations. As applicable under sections 29-2266.02 and 29-2266.03, custodial sanctions of up to thirty days in jail shall be designated as the most severe response to a violation in lieu of revocation and custodial sanctions of up to three days in jail shall be designated as the second most severe response;

(19) Adopt and promulgate rules and regulations for the creation of individualized post-release supervision plans, collaboratively with the Department of Correctional Services and county jails, for probationers sentenced to post-release supervision; and

(20) Exercise all powers and perform all duties necessary and proper to carry out his or her responsibilities.

Each member of the Legislature shall receive an electronic copy of the report required by subdivision (12) of this section by making a request for it to the administrator.

Source:Laws 1971, LB 680, § 7;    Laws 1973, LB 126, § 2;    Laws 1978, LB 625, § 9;    Laws 1979, LB 322, § 9;    Laws 1979, LB 536, § 6;    Laws 1981, LB 545, § 6; Laws 1984, LB 13, § 65;    Laws 1986, LB 529, § 37;    Laws 1990, LB 663, § 16;    Laws 1992, LB 447, § 5;    Laws 2003, LB 46, § 5;    Laws 2005, LB 538, § 7;    Laws 2011, LB390, § 1;    Laws 2012, LB782, § 32;    Laws 2015, LB605, § 64;    Laws 2016, LB1094, § 12;    Laws 2018, LB841, § 2;    Laws 2020, LB381, § 22;    Laws 2023, LB50, § 8.    


29-2252.01. Probation administrator; report required.

On January 15 and July 15 of each fiscal year, the administrator shall provide a report to the budget division of the Department of Administrative Services, the Legislative Fiscal Analyst, and the Supreme Court which shall include, but not be limited to:

(1) The total number of felony cases supervised by the office in the previous six months for both regular and intensive supervision probation;

(2) The total number of misdemeanor cases supervised by the office in the previous six months for both regular and intensive supervision probation;

(3) The felony caseload per officer for both regular and intensive supervision probation on the last day of the reporting period;

(4) The misdemeanor caseload per officer for both regular and intensive supervision probation on the last day of the reporting period;

(5) The total number of juvenile cases supervised by the office in the previous six months for both regular and intensive supervision probation;

(6) The total number of predisposition investigations completed by the office in the previous six months;

(7) The total number of presentence investigations completed by the office in the previous six months;

(8) The total number of juvenile intake screening interviews conducted and detentions authorized by the office in the previous six months, using the detention screening instrument described in section 43-260.01; and

(9) The total number of probationers with restitution judgments, the number of restitution payments made to clerks of the court, the average amount of payments, and the total amount of restitution collected.

The report submitted to the Legislative Fiscal Analyst shall be submitted electronically.

Source:Laws 1990, LB 220, § 4;    Laws 2001, LB 451, § 2;    Laws 2012, LB782, § 33;    Laws 2015, LB605, § 65;    Laws 2016, LB1094, § 13.    


29-2253. Probation administrator; probation districts; employees; appointment; principal office.

(1) The administrator, with the concurrence of the Supreme Court, shall divide the state into probation districts and may from time to time alter the boundaries of such districts in order to maintain the most economical, efficient, and effective utilization of the system.

(2) The administrator shall appoint temporary and permanent probation officers and employees for each probation district as may be required to provide adequate probation services.

(3) The administrator shall appoint a chief probation officer with the concurrence of the majority of all judges within a probation district.

(4) The administrator shall, with the concurrence of all of the separate juvenile court judges within each separate juvenile court, (a) appoint for each separate juvenile court a chief juvenile probation officer, any deputy juvenile probation officers required, and such other employees as may be required to provide adequate probation services for such court and (b) set the salaries of such officers and employees. The chief and deputy juvenile probation officers shall be selected with reference to experience and understanding of problems of family life and child welfare, juvenile delinquency, community organizations, and training in the recognition and treatment of behavior disorders.

(5) The administrator may direct a probation officer of one probation district to temporarily act as probation officer for a court in another probation district, and such probation officer while so serving shall have all the powers and responsibilities as if he or she were serving in the probation district to which he or she was originally appointed.

(6) The administrator, with the concurrence of the Supreme Court, shall designate the location of the principal office of the system within each probation district.

Source:Laws 1971, LB 680, § 8;    Laws 1979, LB 536, § 7;    Laws 1984, LB 13, § 66;    Laws 1986, LB 529, § 38.    


Cross References

29-2254. Interstate Compact for Adult Offender Supervision; administrators; duties.

The compact administrator appointed pursuant to the Interstate Compact for Adult Offender Supervision shall delegate to the probation administrator authority and responsibility for:

(1) Implementation and administration of the compact as it affects probationers; and

(2) Supervision of probationers either sentenced to probation within the state and supervised in another state or placed on probation in another state and supervised within this state pursuant to the compact.

Source:Laws 1971, LB 680, § 9;    Laws 2003, LB 46, § 6.    

Note: Laws 2003, LB 46, section 51, provided this section became operative "when thirty-five states have adopted the Interstate Compact for Adult Offender Supervision". By June 2002, the compact had reached this threshold. (See www.interstatecompact.org.) LB 46 became effective May 24, 2003.


Cross References

29-2255. Interlocal agreement; costs; requirements.

Any interlocal agreement authorized by subdivision (16) of section 29-2252 shall require the political subdivision party to the agreement to provide sufficient resources to cover all costs associated with the participation of probation personnel or use of probation resources other than costs covered by funds provided pursuant to section 29-2262.07 or substance abuse treatment costs covered by funds appropriated for such purpose.

Source:Laws 2005, LB 538, § 6;    Laws 2011, LB390, § 2.    


29-2255.01. Repealed. Laws 1986, LB 529, § 58.

29-2255.02. Repealed. Laws 1984, LB 639, § 1.

29-2256. Volunteers; use of.

Nothing in the Nebraska Probation Administration Act shall be construed to prohibit any court or probation office from utilizing volunteers from the community for probation supervision. The volunteer program shall be supervised by a full-time probation officer who meets the minimum qualifications established by the office.

Source:Laws 1971, LB 680, § 11;    Laws 2016, LB1094, § 14.    


29-2257. Nebraska Probation System; established; duties; salary equalization.

The Nebraska Probation System is established which shall consist of the probation administrator, chief probation officers, probation officers, and support staff. The system shall be responsible for juvenile intake services, for preadjudication juvenile supervision services under section 43-254, for presentence and other probation investigations, for the direct supervision of persons placed on probation, and for non-probation-based programs and services authorized by an interlocal agreement pursuant to subdivision (16) of section 29-2252. The system shall be sufficient in size to assure that no probation officer carries a caseload larger than is compatible with adequate probation investigation or supervision. Probation officers shall be compensated with salaries substantially equal to other state employees who have similar responsibilities.

This provision for salary equalization shall apply only to probation officers and support staff and shall not apply to chief probation officers, the probation administrator, the chief deputy administrator, the deputy probation administrator, or any other similarly established management positions.

Source:Laws 1971, LB 680, § 12;    Laws 1986, LB 529, § 39;    Laws 1995, LB 371, § 14;    Laws 2001, LB 451, § 3;    Laws 2005, LB 538, § 8;    Laws 2013, LB561, § 3;    Laws 2024, LB1051, § 2.    
Effective Date: July 19, 2024


29-2258. District probation officer; duties; powers.

A district probation officer shall:

(1) Conduct juvenile intake interviews and investigations in accordance with sections 43-253 and 43-260.01 and supervise delivery of preadjudication juvenile services under subdivision (1)(f) of section 43-254;

(2) Make presentence and other investigations, as may be required by law or directed by a court in which he or she is serving;

(3) Supervise probationers in accordance with the rules and regulations of the office and the directions of the sentencing court;

(4) Advise the sentencing court, in accordance with the Nebraska Probation Administration Act and such rules and regulations of the office, of violations of the conditions of probation by individual probationers;

(5) Advise the sentencing court, in accordance with the rules and regulations of the office and the direction of the court, when the situation of a probationer may require a modification of the conditions of probation or when a probationer's adjustment is such as to warrant termination of probation;

(6) Provide each probationer with a statement of the period and conditions of his or her probation;

(7) Whenever necessary, exercise the power of arrest as provided in sections 29-2266.01 and 29-2266.02 or exercise the power of temporary custody as provided in section 43-286.01;

(8) Establish procedures for the direction and guidance of deputy probation officers under his or her jurisdiction and advise such officers in regard to the most effective performance of their duties;

(9) Supervise and evaluate deputy probation officers under his or her jurisdiction;

(10) Delegate such duties and responsibilities to a deputy probation officer as he or she deems appropriate;

(11) Make such reports as required by the administrator, the judges of the probation district in which he or she serves, or the Supreme Court;

(12) Keep accurate and complete accounts of all money or property collected or received from probationers and give receipts therefor;

(13) Cooperate fully with and render all reasonable assistance to other probation officers;

(14) In counties with a population of less than twenty-five thousand people, participate in pretrial diversion programs established pursuant to sections 29-3601 to 29-3604 and juvenile pretrial diversion programs established pursuant to sections 43-260.02 to 43-260.07 as requested by judges of the probation district in which he or she serves or as requested by a county attorney and approved by the judges of the probation district in which he or she serves, except that participation in such programs shall not require appointment of additional personnel and shall be consistent with the probation officer's current caseload;

(15) Participate, at the direction of the probation administrator pursuant to an interlocal agreement which meets the requirements of section 29-2255, in non-probation-based programs and services;

(16) Perform such other duties not inconsistent with the Nebraska Probation Administration Act or the rules and regulations of the office as a court may from time to time direct; and

(17) Exercise all powers and perform all duties necessary and proper to carry out his or her responsibilities.

Source:Laws 1971, LB 680, § 13;    Laws 1979, LB 536, § 8;    Laws 1986, LB 529, § 40;    Laws 2001, LB 451, § 4;    Laws 2003, LB 43, § 10;    Laws 2005, LB 538, § 9;    Laws 2010, LB800, § 6;    Laws 2011, LB463, § 2;    Laws 2013, LB561, § 4;    Laws 2016, LB1094, § 15;    Laws 2024, LB1051, § 3.    
Effective Date: July 19, 2024


Annotations

29-2259. Probation administrator; office; salaries; expenses; office space; prepare budget; interpreter services.

(1) The salaries and expenses incident to the conduct and maintenance of the office shall be paid by the state. Other expenses shall be paid by the state as provided in sections 81-1174 to 81-1177.

(2) The salaries and travel expenses of the probation service shall be paid by the state. Travel expenses shall be paid as provided in sections 81-1174 to 81-1177.

(3) Except as provided in sections 29-2262 and 29-2262.04, the costs of drug testing and equipment incident to the electronic surveillance of individuals on probation shall be paid by the state.

(4) The expenses incident to the conduct and maintenance of the principal office within each probation district shall in the first instance be paid by the county in which it is located, but such county shall be reimbursed for such expenses by all other counties within the probation district to the extent and in the proportions determined by the Supreme Court based upon population, number of investigations, and probation cases handled or upon such other basis as the Supreme Court deems fair and equitable.

(5) Each county shall provide office space and necessary facilities for probation officers performing their official duties and shall bear the costs incident to maintenance of such offices other than salaries, travel expenses, and data processing and word processing hardware and software that is provided on the state computer network.

(6) The cost of interpreter services for deaf and hard of hearing persons and for persons unable to communicate the English language shall be paid by the state with money appropriated to the Supreme Court for that purpose or from other funds, including grant money, made available to the Supreme Court for such purpose. Interpreter services shall include auxiliary aids for deaf and hard of hearing persons as defined in section 20-151 and interpreters to assist persons unable to communicate the English language as defined in section 25-2402. Interpreter services shall be provided under this section for the purposes of conducting a presentence investigation and for ongoing supervision by a probation officer of such persons placed on probation.

(7) The probation administrator shall prepare a budget and request for appropriations for the office and shall submit such request to the Supreme Court and with its approval to the appropriate authority in accordance with law.

Source:Laws 1971, LB 680, § 14;    Laws 1979, LB 536, § 9;    Laws 1981, LB 204, § 43;    Laws 1986, LB 529, § 41;    Laws 1989, LB 2, § 1;    Laws 1990, LB 220, § 5;    Laws 1992, LB 1059, § 24; Laws 1999, LB 54, § 4;    Laws 2011, LB669, § 23;    Laws 2020, LB381, § 23.    


29-2259.01. Probation Cash Fund; created; use; investment.

(1) There is hereby created the Probation Cash Fund. All money collected pursuant to subdivisions (2)(m) and (2)(o) of section 29-2262 shall be remitted to the State Treasurer for credit to the fund.

(2) Expenditures from the money in the fund collected pursuant to subdivisions (2)(m) and (2)(o) of section 29-2262 shall include, but not be limited to, supplementing any state funds necessary to support the costs of the services for which the money was collected.

(3) Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

(4) The State Treasurer shall transfer any remaining money in the fund collected pursuant to subdivisions (4)(a) and (4)(b) of section 60-4,115 on January 1, 2012, to the Department of Motor Vehicles Ignition Interlock Fund.

Source:Laws 1990, LB 220, § 6;    Laws 1992, LB 1059, § 25; Laws 1994, LB 1066, § 20;    Laws 2001, Spec. Sess., LB 3, § 2; Laws 2003, LB 46, § 7;    Laws 2009, LB497, § 1;    Laws 2011, LB667, § 7.    


Cross References

29-2259.02. State Probation Contractual Services Cash Fund; created; use; investment.

The State Probation Contractual Services Cash Fund is created. The fund shall consist only of payments received by the state pursuant to contractual agreements with local political subdivisions for probation services provided by the Office of Probation Administration. Except as otherwise directed by the Supreme Court during the period from November 21, 2009, until June 30, 2013, the fund shall only be used to pay for probation services provided by the Office of Probation Administration to local political subdivisions which enter into contractual agreements with the Office of Probation Administration. The fund shall be administered by the probation administrator. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 2000, LB 1216, § 29;    Laws 2009, First Spec. Sess., LB3, § 14;    Laws 2011, LB378, § 19.    


Cross References

29-2260. Certain juveniles; disposition; certain offenders; sentence of probation, when.

(1) Whenever a person is adjudicated to be as described in subdivision (1), (2), (3)(b), or (4) of section 43-247, his or her disposition shall be governed by the Nebraska Juvenile Code.

(2) Whenever a court considers sentence for an offender convicted of either a misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is not specifically required, the court may withhold sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of the offender, the court finds that imprisonment of the offender is necessary for protection of the public because:

(a) The risk is substantial that during the period of probation the offender will engage in additional criminal conduct;

(b) The offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or

(c) A lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for law.

(3) The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of withholding sentence of imprisonment:

(a) The crime neither caused nor threatened serious harm;

(b) The offender did not contemplate that his or her crime would cause or threaten serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse or justify the crime, though failing to establish a defense;

(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate the victim of his or her crime for the damage or injury the victim sustained;

(g) The offender has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the crime;

(h) The crime was the result of circumstances unlikely to recur;

(i) The character and attitudes of the offender indicate that he or she is unlikely to commit another crime;

(j) The offender is likely to respond affirmatively to probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

(4) When an offender who has been convicted of a crime is not sentenced to imprisonment, the court may sentence him or her to probation.

Source:Laws 1971, LB 680, § 15;    Laws 1982, LB 568, § 3;    Laws 1986, LB 153, § 2;    Laws 1988, LB 790, § 4;    Laws 2015, LB605, § 66;    Laws 2016, LB1094, § 16.    


Cross References

Annotations

29-2260.01. Juvenile intake services; duties; intent.

It is the intent of the Legislature to ensure that a consistent and objective method of juvenile intake occur throughout the state for juveniles held in temporary custody by a law enforcement officer, in accordance with section 43-250, to avoid either inappropriate or unnecessary detention of juveniles which may result in inordinately high detention rates, overcrowding of local detention facilities, excessive detention costs for counties, and adverse consequences for the juvenile, the juvenile's family, or the community. Juvenile intake services shall be administered by probation officers acting as juvenile probation intake officers and shall be available to all juvenile courts in the state, both county courts sitting as juvenile courts and separate juvenile courts. Such probation officers shall be appointed by the probation administrator and designated within respective probation districts based upon the need for such services as the probation administrator determines. In order to adequately provide juvenile intake services statewide and in accordance with the Juvenile Detention and Probation Services Implementation Team Interim Report and Recommendations filed with the Legislature December 15, 2000, it is the intent of the Legislature to appropriate funds to the system to provide seven additional probation officers to act in the capacity of juvenile probation intake officers.

Source:Laws 2001, LB 451, § 8.    


29-2260.02. Department of Health and Human Services; administer Title IV-E state plan; Office of Probation Administration; powers and duties.

The Department of Health and Human Services, as the single state agency administering the Title IV-E state plan, has the authority to enter into the agreement with the Office of Probation Administration to act as a surrogate of the Department of Health and Human Services to administer the Title IV-E state plan for children it has placement and care authority of. The Department of Health and Human Services as the public agency administering or supervising the administration of the Title IV-E state plan in accordance with section 472(a)(2)(B)(ii) of the federal Social Security Act, 42 U.S.C. 672(a)(2)(B)(ii), to obtain federal reimbursement for allowable maintenance, administrative, and training expenses in accordance with Title IV-E of the federal Social Security Act, Public Law 96-272, Public Law 105-89, and Public Law 110-351, maintains the ultimate responsibility to supervise the Office of Probation Administration's activities regarding the Title IV-E requirements for eligible children served under the agreement.

The Office of Probation Administration has placement and care responsibility for juveniles in out-of-home placement, also known as foster care, described in subdivision (1), (2), (3)(b), or (4) of section 43-247. Placement and care constitutes accountability for the day-to-day care and protection of juveniles. The responsibility of having placement and care includes the development of an individual case plan for the juvenile, including periodic review of the appropriateness and suitability of the plan and the foster care placement, to ensure that proper care and services are provided to facilitate return to the juvenile's own home or to make an alternative placement. The case plan activities include such items as assessing family strength and needs, identifying and using community resources, and the periodic review and determination of continued appropriateness of placement. Placement and care does not include rights retained by the legal custodian, including, but not limited to, provisions and decisions surrounding education, morality, religion, discipline, and medical care.

Source:Laws 2014, LB464, § 5.    


29-2261. Presentence investigation, when; contents; psychiatric examination; persons having access to records; reports authorized.

(1) Unless it is impractical to do so, when an offender has been convicted of a felony other than murder in the first degree, the court shall not impose sentence without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation. When an offender has been convicted of murder in the first degree and (a) a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520 or (b)(i) the information contains a notice of aggravation as provided in section 29-1603 and (ii) the offender waives his or her right to a jury determination of the alleged aggravating circumstances, the court shall not commence the sentencing determination proceeding as provided in section 29-2521 without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation.

(2) A court may order a presentence investigation in any case, except in cases in which an offender has been convicted of a Class IIIA misdemeanor, a Class IV misdemeanor, a Class V misdemeanor, a traffic infraction, or any corresponding city or village ordinance.

(3) The presentence investigation and report shall include, when available, an analysis of the circumstances attending the commission of the crime, the offender's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits, and any other matters that the probation officer deems relevant or the court directs to be included. All local and state police agencies and Department of Correctional Services adult correctional facilities shall furnish to the probation officer copies of such criminal records, in any such case referred to the probation officer by the court of proper jurisdiction, as the probation officer shall require without cost to the court or the probation officer.

Such investigation shall also include:

(a) Any written statements submitted to the county attorney by a victim; and

(b) Any written statements submitted to the probation officer by a victim.

(4) If there are no written statements submitted to the probation officer, he or she shall certify to the court that:

(a) He or she has attempted to contact the victim; and

(b) If he or she has contacted the victim, such officer offered to accept the written statements of the victim or to reduce such victim's oral statements to writing.

For purposes of subsections (3) and (4) of this section, the term victim shall be as defined in section 29-119.

(5) Before imposing sentence, the court may order the offender to submit to psychiatric observation and examination for a period of not exceeding sixty days or such longer period as the court determines to be necessary for that purpose. The offender may be remanded for this purpose to any available clinic or mental hospital, or the court may appoint a qualified psychiatrist to make the examination. The report of the examination shall be submitted to the court.

(6)(a) Any presentence report, substance abuse evaluation, or psychiatric examination shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge; probation officers to whom an offender's file is duly transferred; the probation administrator or his or her designee; alcohol and drug counselors, mental health practitioners, psychiatrists, and psychologists licensed or certified under the Uniform Credentialing Act to conduct substance abuse evaluations and treatment; or others entitled by law to receive such information, including personnel and mental health professionals for the Nebraska State Patrol specifically assigned to sex offender registration and community notification for the sole purpose of using such report, evaluation, or examination for assessing risk and for community notification of registered sex offenders.

(b) For purposes of this subsection, mental health professional means (i) a practicing physician licensed to practice medicine in this state under the Medicine and Surgery Practice Act, (ii) a practicing psychologist licensed to engage in the practice of psychology in this state as provided in section 38-3111 or as provided under similar provisions of the Psychology Interjurisdictional Compact, (iii) a practicing mental health professional licensed or certified in this state as provided in the Mental Health Practice Act, or (iv) a practicing professional counselor holding a privilege to practice in Nebraska under the Licensed Professional Counselors Interstate Compact.

(7) The court shall permit inspection of the presentence report, substance abuse evaluation, or psychiatric examination or parts of the report, evaluation, or examination, as determined by the court, by the prosecuting attorney and defense counsel. Such inspection shall be by electronic access only unless the court determines such access is not available to the prosecuting attorney or defense counsel. The State Court Administrator shall determine and develop the means of electronic access to such presentence reports, evaluations, and examinations. Upon application by the prosecuting attorney or defense counsel, the court may order that addresses, telephone numbers, and other contact information for victims or witnesses named in the report, evaluation, or examination be redacted upon a showing by a preponderance of the evidence that such redaction is warranted in the interests of public safety. The court may permit inspection of the presentence report, substance abuse evaluation, or psychiatric examination or examination of parts of the report, evaluation, or examination by any other person having a proper interest therein whenever the court finds it is in the best interest of a particular offender. The court may allow fair opportunity for an offender to provide additional information for the court's consideration.

(8) If an offender is sentenced to imprisonment, a copy of the report of any presentence investigation, substance abuse evaluation, or psychiatric examination shall be transmitted immediately to the Department of Correctional Services. Upon request, the department shall provide a copy of the report to the Board of Parole, the Division of Parole Supervision, and the Board of Pardons.

(9) Notwithstanding subsections (6) and (7) of this section, the Supreme Court or an agent of the Supreme Court acting under the direction and supervision of the Chief Justice shall have access to psychiatric examinations, substance abuse evaluations, and presentence investigations and reports for research purposes. The Supreme Court and its agent shall treat such information as confidential, and nothing identifying any individual shall be released.

Source:Laws 1971, LB 680, § 16;    Laws 1974, LB 723, § 1;    Laws 1983, LB 78, § 4;    Laws 2000, LB 1008, § 1;    Laws 2002, LB 564, § 1;    Laws 2002, Third Spec. Sess., LB 1, § 9;    Laws 2003, LB 46, § 8;    Laws 2004, LB 1207, § 17;    Laws 2007, LB463, § 1129;    Laws 2011, LB390, § 3;    Laws 2015, LB268, § 20;    Laws 2015, LB504, § 1;    Referendum 2016, No. 426; Laws 2018, LB841, § 3;    Laws 2018, LB1034, § 3;    Laws 2022, LB752, § 4;    Laws 2023, LB50, § 9.    


Cross References

Annotations

29-2262. Probation; conditions; court order; information accessible through criminal justice information system.

(1) When a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life. No offender shall be sentenced to probation if he or she is deemed to be a habitual criminal pursuant to section 29-2221.

(2) The court may, as a condition of a sentence of probation, require the offender:

(a) To refrain from unlawful conduct;

(b) To be confined periodically in the county jail or to return to custody after specified hours but not to exceed the lesser of ninety days or the maximum jail term provided by law for the offense;

(c) To meet his or her family responsibilities;

(d) To devote himself or herself to a specific employment or occupation;

(e) To undergo medical or psychiatric treatment and to enter and remain in a specified institution for such purpose;

(f) To pursue a prescribed secular course of study or vocational training;

(g) To attend or reside in a facility established for the instruction, recreation, or residence of persons on probation;

(h) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;

(i) To possess no firearm or other dangerous weapon if convicted of a felony, or if convicted of any other offense, to possess no firearm or other dangerous weapon unless granted written permission by the court;

(j) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his or her address or his or her employment and to agree to waive extradition if found in another jurisdiction;

(k) To report as directed to the court or a probation officer and to permit the officer to visit his or her home;

(l) To pay a fine in one or more payments as ordered;

(m) To pay for tests to determine the presence of drugs or alcohol, psychological evaluations, offender assessment screens, and rehabilitative services required in the identification, evaluation, and treatment of offenders if such offender has the financial ability to pay for such services;

(n) To perform community service as outlined in sections 29-2277 to 29-2279 under the direction of his or her probation officer;

(o) To be monitored by an electronic surveillance device or system and to pay the cost of such device or system if the offender has the financial ability;

(p) To participate in a community correctional facility or program as provided in the Community Corrections Act;

(q) To satisfy any other conditions reasonably related to the rehabilitation of the offender;

(r) To make restitution as described in sections 29-2280 and 29-2281; or

(s) To pay for all costs imposed by the court, including court costs and the fees imposed pursuant to section 29-2262.06.

(3) When jail time is imposed as a condition of probation under subdivision (2)(b) of this section, the court shall advise the offender on the record the time the offender will serve in jail assuming no good time for which the offender will be eligible under section 47-502 is lost and assuming none of the jail time imposed as a condition of probation is waived by the court.

(4) Jail time may only be imposed as a condition of probation under subdivision (2)(b) of this section if:

(a) The court would otherwise sentence the defendant to a term of imprisonment instead of probation; and

(b) The court makes a finding on the record that, while probation is appropriate, periodic confinement in the county jail as a condition of probation is necessary because a sentence of probation without a period of confinement would depreciate the seriousness of the offender's crime or promote disrespect for law.

(5) In all cases in which the offender is guilty of violating section 28-416, a condition of probation shall be mandatory treatment and counseling as provided by such section.

(6) In all cases in which the offender is guilty of a crime covered by the DNA Identification Information Act, a condition of probation shall be the collecting of a DNA sample pursuant to the act and the paying of all costs associated with the collection of the DNA sample prior to release from probation.

(7) For any offender sentenced to probation, the court shall enter an order to provide the offender's (a) name, (b) probation officer, and (c) conditions of probation to the Nebraska Commission on Law Enforcement and Criminal Justice which shall provide access to such information to law enforcement agencies through the state's criminal justice information system.

Source:Laws 1971, LB 680, § 17;    Laws 1975, LB 289, § 1;    Laws 1978, LB 623, § 29;    Laws 1979, LB 292, § 1;    Laws 1986, LB 504, § 2;    Laws 1986, LB 528, § 4;    Laws 1986, LB 956, § 14;    Laws 1989, LB 592, § 3;    Laws 1989, LB 669, § 1;    Laws 1990, LB 220, § 8;    Laws 1991, LB 742, § 2; Laws 1993, LB 627, § 2;    Laws 1995, LB 371, § 15;    Laws 1997, LB 882, § 1;    Laws 1998, LB 218, § 16;    Laws 2003, LB 46, § 9;    Laws 2006, LB 385, § 1;    Laws 2010, LB190, § 1;    Laws 2015, LB605, § 67;    Laws 2016, LB1094, § 17;    Laws 2019, LB340, § 1;    Laws 2023, LB50, § 10.    


Cross References

Annotations

29-2262.01. Repealed. Laws 2009, LB 63, § 50.

29-2262.02. Intensive supervision probation programs; legislative findings and intent.

The Legislature finds and declares that intensive supervision probation programs are an effective and desirable alternative to imprisonment. It is the Legislature's intent to encourage the establishment of programs for the intensive supervision of selected probationers. It is further the intent of the Legislature that such programs be formulated to protect the safety and welfare of the public in the community where the programs are operating and throughout the State of Nebraska.

Source:Laws 1990, LB 220, § 1.    


29-2262.03. Court; order of intensive supervision probation; when; laws applicable.

(1) Whenever the court considers the sentence for an offender convicted of any crime for which a term of imprisonment of six months or more is possible and mandatory minimum imprisonment is not specifically required, the court may withhold the sentence of imprisonment and sentence the offender to intensive supervision probation. The decision whether to sentence an offender to intensive supervision probation shall be guided by the criteria for withholding a sentence of imprisonment as set forth in subsection (2) of this section and subsections (2) and (3) of section 29-2260.

(2) Intensive supervision probation shall be governed by the laws governing probation except as required by specific provisions of this section and sections 29-2252.01, 29-2262.02, 29-2262.04, and 29-2262.05.

Source:Laws 1990, LB 220, § 7.    


29-2262.04. Intensive supervision probation programs; contents; supervision required; electronic device or system; cost.

Selected offenders in intensive supervision probation programs shall receive the highest level of supervision that is provided to probationers. Such programs may include, but shall not be limited to, highly restricted activities, daily contact between the offender and the probation officer, monitored curfew, home visitation, employment visitation and monitoring, drug and alcohol screening, treatment referrals and monitoring, and restitution and community service. Selected offenders monitored by an electronic device or system shall be required to pay the cost of such a device or system if the offender has the financial ability. It is the intent of the Legislature that such programs shall minimize any risk to the public.

Source:Laws 1990, LB 220, § 2.    


29-2262.05. Intensive supervision probation programs; Supreme Court; duties.

The Supreme Court shall establish and enforce the standards and criteria for the administration of the intensive supervision probation programs.

Source:Laws 1990, LB 220, § 3.    


29-2262.06. Fees; waiver; when; failure to pay; effect.

(1) Except as otherwise provided in this section, whenever a district court or county court sentences an adult offender to probation, the court shall require the probationer to pay a one-time administrative enrollment fee and thereafter a monthly probation programming fee.

(2) Participants in non-probation-based programs or services in which probation personnel or probation resources are utilized pursuant to an interlocal agreement authorized by subdivision (16) of section 29-2252 and in which all or a portion of the costs of such probation personnel or such probation resources are covered by funds provided pursuant to section 29-2262.07 shall pay the one-time administrative enrollment fee described in subdivision (3)(a) of this section and the monthly probation programming fee described in subdivision (3)(c) of this section. In addition, the provisions of subsections (4), (7), and (10) of this section applicable to probationers apply to participants in non-probation-based programs or services. Any participant in a non-probation-based program or service who defaults on the payment of any such fees may, at the discretion of the court, be subject to removal from such non-probation-based program or service. This subdivision does not preclude a court or other governmental entity from charging additional local fees for participation in such non-probation-based programs and services or other similar non-probation-based programs and services.

(3) The court shall establish the administrative enrollment fee and monthly probation programming fees as follows:

(a) Adult probationers placed on either probation or intensive supervision probation and participants in non-probation-based programs or services shall pay a one-time administrative enrollment fee of thirty dollars. The fee shall be paid in a lump sum upon the beginning of probation supervision or participation in a non-probation-based program or service;

(b) Adult probationers placed on probation shall pay a monthly probation programming fee of twenty-five dollars, not later than the tenth day of each month, for the duration of probation; and

(c) Adult probationers placed on intensive supervision probation and participants in non-probation-based programs or services shall pay a monthly probation programming fee of thirty-five dollars, not later than the tenth day of each month, for the duration of probation or participation in a non-probation-based program or service.

(4) The court shall waive payment of the monthly probation programming fees in whole or in part if after a hearing a determination is made that such payment would constitute an undue hardship on the offender due to limited income, employment or school status, or physical or mental handicap. Such waiver shall be in effect only during the period of time that the probationer or participant in a non-probation-based program or service is unable to pay his or her monthly probation programming fee.

(5) If a probationer defaults in the payment of monthly probation programming fees or any installment thereof, the court may revoke his or her probation for nonpayment, except that probation shall not be revoked nor shall the offender be imprisoned for such nonpayment if the probationer is financially unable to make the payment, if he or she so states to the court in writing under oath, and if the court so finds after a hearing.

(6) If the court determines that the default in payment described in subsection (5) of this section was not attributable to a deliberate refusal to obey the order of the court or to failure on the probationer's part to make a good faith effort to obtain the funds required for payment, the court may enter an order allowing the probationer additional time for payment, reducing the amount of each installment, or revoking the fees or the unpaid portion in whole or in part.

(7) No probationer or participant in a non-probation-based program or service shall be required to pay more than one monthly probation programming fee per month. This subsection does not preclude local fees as provided in subsection (2) of this section.

(8) The imposition of monthly probation programming fees in this section shall be considered separate and apart from the fees described in subdivisions (2)(m) and (o) of section 29-2262.

(9) Any adult probationer received for supervision pursuant to section 29-2637 or the Interstate Compact for Adult Offender Supervision shall be assessed both a one-time administrative enrollment fee and monthly probation programming fees during the period of time the probationer is actively supervised by Nebraska probation authorities.

(10) The probationer or participant in a non-probation-based program or service shall pay the fees described in this section to the clerk of the court. The clerk of the court shall remit all fees so collected to the State Treasurer for credit to the Probation Program Cash Fund.

Source:Laws 2003, LB 46, § 12;    Laws 2005, LB 538, § 10.    


Cross References

Annotations

29-2262.07. Probation Program Cash Fund; created; use; investment.

The Probation Program Cash Fund is created. All funds collected pursuant to section 29-2262.06 shall be remitted to the State Treasurer for credit to the fund. Except as otherwise directed by the Supreme Court during the period from November 21, 2009, until June 30, 2013, the fund shall be utilized by the administrator for the purposes stated in subdivisions (14) and (17) of section 29-2252, except that the State Treasurer shall, on or before June 30, 2011, on such date as directed by the budget administrator of the budget division of the Department of Administrative Services, transfer the amount set forth in Laws 2009, LB1, One Hundred First Legislature, First Special Session. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

On July 15, 2010, the State Treasurer shall transfer three hundred fifty thousand dollars from the Probation Program Cash Fund to the Violence Prevention Cash Fund. The Office of Violence Prevention shall distribute such funds as soon as practicable after July 15, 2010, to organizations or governmental entities that have submitted violence prevention plans and that best meet the intent of reducing street and gang violence and reducing homicides and injuries caused by firearms.

Source:Laws 2003, LB 46, § 13;    Laws 2009, First Spec. Sess., LB3, § 15;    Laws 2010, LB800, § 8;    Laws 2011, LB378, § 20;    Laws 2011, LB390, § 4.    


Cross References

29-2262.08. Transferred to section 43-286.01.

29-2263. Probation; term; court; duties; powers; post-release supervision; term; probation obligation satisfied, when; probation officer; duties; probationer outside of jurisdiction without permission; effect.

(1)(a) Except as provided in subsection (2) of this section, when a court has sentenced an offender to probation, the court shall specify the term of such probation which shall be not more than five years upon conviction of a felony or second offense misdemeanor and two years upon conviction of a first offense misdemeanor.

(b) At sentencing, the court shall provide notice to the offender that the offender may be eligible to have the conviction set aside as provided in subsection (2) of section 29-2264 and shall provide information on how to file such a petition. The State Court Administrator shall develop standardized advisement language and any forms necessary to carry out this subdivision.

(c) The court, on application of a probation officer or of the probationer or on its own motion, may discharge a probationer at any time.

(2) When a court has sentenced an offender to post-release supervision, the court shall specify the term of such post-release supervision as provided in section 28-105. The court, on application of a probation officer or of the probationer or on its own motion, may discharge a probationer at any time.

(3) During the term of probation, the court on application of a probation officer or of the probationer, or its own motion, may modify or eliminate any of the conditions imposed on the probationer or add further conditions authorized by section 29-2262. This subsection does not preclude a probation officer from imposing administrative sanctions with the probationer's full knowledge and consent as authorized by sections 29-2266.01 and 29-2266.02.

(4)(a) Upon completion of the term of probation, or the earlier discharge of the probationer, the probationer shall be relieved of any obligations imposed by the order of the court and shall have satisfied the sentence for his or her crime.

(b) Upon satisfactory fulfillment of the conditions of probation for the entire period or after discharge from probation prior to the termination of the period of probation, a probation officer shall notify the probationer that the probationer may be eligible to have the conviction set aside as provided in subsection (2) of section 29-2264. The notice shall include an explanation of the requirements for a conviction to be set aside, how to file a petition for a conviction to be set aside, and the effect of and limitations of having a conviction set aside and an advisement that the probationer consult with an attorney prior to filing a petition. The State Court Administrator shall develop standardized advisement language and any forms necessary to carry out this subdivision.

(5) Whenever a probationer disappears or leaves the jurisdiction of the court without permission, the time during which he or she keeps his or her whereabouts hidden or remains away from the jurisdiction of the court shall be added to the original term of probation.

Source:Laws 1971, LB 680, § 18;    Laws 1975, LB 289, § 2;    Laws 2003, LB 46, § 10;    Laws 2015, LB605, § 68;    Laws 2016, LB1094, § 18;    Laws 2023, LB50, § 11.    


Annotations

29-2264. Probation; completion; conviction may be set aside; conditions; retroactive effect.

(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 upon 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.

(2) Whenever any person is convicted of an offense and is placed on probation by the court, is sentenced to a fine only, or is sentenced to community service, he or she may, after satisfactory fulfillment of the conditions of probation for the entire period or after discharge from probation prior to the termination of the period of probation and after payment of any fine and completion of any community service, petition the sentencing court to set aside the conviction.

(3)(a) Except as provided in subdivision (3)(b) of this section, whenever any person is convicted of an offense and is sentenced other than as provided in subsection (2) of this section, but is not sentenced to a term of imprisonment of more than one year, such person may, after completion of his or her sentence, petition the sentencing court to set aside the conviction.

(b) A petition under subdivision (3)(a) of this section shall be denied if filed:

(i) By any person with a criminal charge pending in any court in the United States or in any other country;

(ii) During any period in which the person is required to register under the Sex Offender Registration Act;

(iii) For any misdemeanor or felony motor vehicle offense under section 28-306 or the Nebraska Rules of the Road; or

(iv) Within two years after a denial of a petition to set aside a conviction under this subsection.

(4) In determining whether to set aside the conviction, the court shall consider:

(a) The behavior of the offender after sentencing;

(b) The likelihood that the offender will not engage in further criminal activity; and

(c) Any other information the court considers relevant.

(5) 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;

(b) Remove all civil disabilities and disqualifications imposed as a result of the conviction; and

(c) Notify the offender that he or she should consult with an attorney regarding the effect of the order, if any, on the offender's ability to possess a firearm under state or federal law.

(6) The setting aside of a conviction in accordance with the Nebraska Probation Administration Act shall not:

(a) Require the reinstatement of any office, employment, or position which was previously held and lost or forfeited as a result of the conviction;

(b) Preclude proof of a plea of guilty whenever such plea is relevant to the determination of an issue involving the rights or liabilities of someone other than the offender;

(c) Preclude proof of the conviction as evidence of the commission of the offense whenever the fact of its commission is relevant for the purpose of impeaching the offender as a witness, except that the order setting aside the conviction may be introduced in evidence;

(d) Preclude use of the conviction for the purpose of determining sentence on any subsequent conviction of a criminal offense;

(e) Preclude the proof of the conviction as evidence of the commission of the offense in the event an offender is charged with a subsequent offense and the penalty provided by law is increased if the prior conviction is proved;

(f) Preclude the proof of the conviction to determine whether an offender is eligible to have a subsequent conviction set aside in accordance with the Nebraska Probation Administration Act;

(g) Preclude use of the conviction as evidence of commission of the offense for purposes of determining whether an application filed or a license issued under sections 71-1901 to 71-1906.01, the Child Care Licensing Act, or the Children's Residential Facilities and Placing Licensure Act or a certificate issued under sections 79-806 to 79-815 should be denied, suspended, or revoked;

(h) Preclude use of the conviction as evidence of serious misconduct or final conviction of or pleading guilty or nolo contendere to a felony or misdemeanor for purposes of determining whether an application filed or a certificate issued under sections 81-1401 to 81-1414.19 should be denied, suspended, or revoked;

(i) Preclude proof of the conviction as evidence whenever the fact of the conviction is relevant to a determination of the registration period under section 29-4005;

(j) 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;

(k) Preclude use of the conviction for purposes of section 28-1206;

(l) Affect the right of a victim of a crime to prosecute or defend a civil action;

(m) Affect the assessment or accumulation of points under section 60-4,182; or

(n) Affect eligibility for, or obligations relating to, a commercial driver's license.

(7) For purposes of this section, offense means any violation of the criminal laws of this state or any political subdivision of this state including, but not limited to, any felony, misdemeanor, infraction, traffic infraction, violation of a city or village ordinance, or violation of a county resolution.

(8) Except as otherwise provided for the notice in subsection (1) of this section, changes made to this section by Laws 2005, LB 713, 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.

(9) The changes made to this section by Laws 2018, LB146, and Laws 2020, LB881, shall apply to all persons otherwise eligible under this section, without regard to the date of the conviction sought to be set aside.

Source:Laws 1971, LB 680, § 19;    Laws 1993, LB 564, § 1;    Laws 1994, LB 677, § 1;    Laws 1995, LB 401, § 1;    Laws 1997, LB 310, § 1;    Laws 1998, Spec. Sess., LB 1, § 3; Laws 2002, LB 1054, § 6;    Laws 2003, LB 685, § 2;    Laws 2004, LB 1005, § 3;    Laws 2005, LB 53, § 3;    Laws 2005, LB 713, § 3;    Laws 2009, LB285, § 2;    Laws 2012, LB817, § 2;    Laws 2013, LB265, § 30;    Laws 2018, LB146, § 1;    Laws 2020, LB881, § 24;    Laws 2021, LB51, § 3;    Laws 2024, LB20, § 3.    
Effective Date: July 19, 2024


Cross References

Annotations

29-2265. Probation; transfer or retention of jurisdiction over probationer; determination; effect.

(1) Whenever an offender is placed on probation and will reside in a location outside the jurisdiction of the sentencing court, the sentencing court may:

(a) Retain jurisdiction over the probationer and the subject matter of the action; or

(b) Transfer jurisdiction over the probationer and the subject matter of the action to an appropriate court in the judicial district in which the probationer will reside.

(2) When a court determines to transfer jurisdiction under subdivision (1)(b) of this section, it shall:

(a) Obtain the concurrence of the court to which transfer is to be made;

(b) File a certified transcript of the action out of which the probationer's conviction arose with the clerk of the court to which jurisdiction is transferred; and

(c) Furnish the chief probation officer of the district in which the probationer will reside with a copy of any presentence investigation.

(3) Upon the filing of the transcript in accordance with subdivision (2)(b) of this section, the court making the transfer shall have no further jurisdiction of the subject matter of the action or over the probationer. The court to which jurisdiction is transferred shall immediately enter an order placing the transferred probationer on probation under such conditions as it may deem appropriate in accordance with the Nebraska Probation Administration Act.

(4) When a court retains jurisdiction under subdivision (1)(a) of this section and the probationer will reside in a different probation district from that of the sentencing court, the court may notify the chief probation officer in the probation district in which the probationer will reside to supervise such probationer under the terms of the probation order and in accordance with the Nebraska Probation Administration Act.

Source:Laws 1971, LB 680, § 20;    Laws 1986, LB 529, § 42.    


29-2266. Probation; terms, defined.

For purposes of sections 29-2266.01 to 29-2266.03:

(1) Absconding supervision means a probationer has purposely avoided supervision for a period of at least two weeks and reasonable efforts by probation officers and staff to locate the probationer in person have proven unsuccessful;

(2) Administrative sanction means an additional probation requirement imposed upon a probationer by his or her probation officer, with the full knowledge and consent of the probationer, designed to hold the probationer accountable for violations of conditions of probation, including, but not limited to:

(a) Counseling or reprimand by his or her probation officer;

(b) Increased supervision contact requirements;

(c) Increased substance abuse testing;

(d) Referral for substance abuse or mental health evaluation or other specialized assessment, counseling, or treatment;

(e) Imposition of a designated curfew for a period not to exceed thirty days;

(f) Community service for a specified number of hours pursuant to sections 29-2277 to 29-2279;

(g) Travel restrictions to stay within his or her county of residence or employment unless otherwise permitted by the supervising probation officer; and

(h) Restructuring court-imposed financial obligations to mitigate their effect on the probationer;

(3) Custodial sanction means an additional probation requirement imposed upon a probationer designed to hold the probationer accountable for a violation of a condition of probation. A custodial sanction may include up to thirty days in jail as the most severe response and may include up to three days in jail as the second most severe response;

(4)(a) Noncriminal violation means a probationer's activities or behaviors which create the opportunity for re-offending or diminish the effectiveness of probation supervision resulting in a violation of an original condition of probation, including:

(i) Moving traffic violations;

(ii) Failure to report to his or her probation officer;

(iii) Leaving the jurisdiction of the court or leaving the state without the permission of the court or his or her probation officer;

(iv) Failure to work regularly or attend training or school;

(v) Failure to notify his or her probation officer of change of address or employment;

(vi) Frequenting places where controlled substances are illegally sold, used, distributed, or administered;

(vii) Failure to perform community service as directed; and

(viii) Failure to pay fines, court costs, restitution, or any fees imposed pursuant to section 29-2262.06 as directed; and

(b) Noncriminal violation does not include absconding supervision; and

(5) Substance abuse violation means a probationer's activities or behaviors associated with the use of chemical substances or related treatment services resulting in a violation of an original condition of probation, including:

(a) Positive breath test for the consumption of alcohol if the offender is required to refrain from alcohol consumption;

(b) Positive urinalysis for the illegal use of drugs;

(c) Failure to report for alcohol testing or drug testing; and

(d) Failure to appear for or complete substance abuse or mental health treatment evaluations or inpatient or outpatient treatment.

Source:Laws 1971, LB 680, § 21;    Laws 2003, LB 46, § 11;    Laws 2015, LB605, § 69;    Laws 2016, LB1094, § 19.    


Annotations

29-2266.01. Probation officer; probationer sentenced for misdemeanor; violations of condition of probation; duties; arrest and detention; county attorney; duties.

(1) Whenever a probation officer has reasonable cause to believe that a probationer sentenced for a misdemeanor has committed or is about to commit a violation of a condition of probation, the probation officer shall either:

(a) Impose one or more administrative sanctions with the approval of his or her chief probation officer or such chief's designee. The decision to impose an administrative sanction in lieu of formal revocation proceedings rests with the probation officer and his or her chief probation officer or such chief's designee and shall be based upon the probationer's risk level, the severity of the violation, and the probationer's response to the violation. If an administrative sanction is to be imposed, the probationer shall acknowledge in writing the nature of the violation and agree upon the administrative sanction. The probationer has the right to decline to acknowledge the violation; and if he or she declines to acknowledge the violation, the probation officer shall take action pursuant to subdivision (1)(b) of this section. The probation officer shall submit a written report to the county attorney of the county where probation was imposed, outlining the nature of the probation violation and the sanction imposed; or

(b) Submit a written report to the sentencing court, with a copy to the county attorney of the county where probation was imposed, outlining the nature of the probation violation and request that formal revocation proceedings be initiated against the probationer in accordance with sections 29-2267 and 29-2268.

(2) Whenever a probation officer has reasonable cause to believe that a probationer sentenced for a misdemeanor has violated or is about to violate a condition of his or her probation and that the probationer will attempt to leave the jurisdiction or will place lives or property in danger, the probation officer shall arrest the probationer without a warrant and may call on any peace officer for assistance. Whenever a probationer is arrested, with or without a warrant, he or she shall be detained in a jail or other detention facility.

(3) Immediately after arrest and detention pursuant to subsection (2) of this section, the probation officer shall notify the county attorney of the county where probation was imposed and submit a written report of the reason for such arrest and of any violation of probation. After prompt consideration of such written report, the county attorney shall:

(a) Notify the probation officer and the jail or detention facility, in writing, that he or she does not intend to file a motion to revoke probation, and authorize the release of the probationer from confinement; or

(b) File with the sentencing court a motion or information to revoke probation in accordance with sections 29-2267 and 29-2268.

(4) Whenever a county attorney receives a report from a probation officer that a probationer sentenced for a misdemeanor has violated a condition of probation, the county attorney may file a motion or information to revoke probation in accordance with sections 29-2267 and 29-2268.

(5) The administrator shall adopt and promulgate rules and regulations to carry out this section.

Source:Laws 2016, LB1094, § 20.    


29-2266.02. Probation officer; probationer sentenced for felony; violations of condition of probation; duties; arrest and detention; county attorney; duties.

(1) Whenever a probation officer has reasonable cause to believe that a probationer sentenced for a felony has committed or is about to commit a violation while on probation, the probation officer shall consider:

(a) Whether the probation officer is required to arrest the probationer pursuant to subsection (2) of this section;

(b) The probationer's risk level, the severity of the violation, and the probationer's response to the violation;

(c) Whether to impose administrative sanctions or seek custodial sanctions; or

(d) Whether to seek revocation of probation.

(2) Whenever a probation officer has reasonable cause to believe that a probationer sentenced for a felony has violated or is about to violate a condition of his or her probation and that the probationer will attempt to leave the jurisdiction or will place lives or property in danger, the probation officer shall arrest the probationer without a warrant and may call on any peace officer for assistance. Whenever a probationer is arrested, with or without a warrant, he or she shall be detained in a jail or other detention facility.

(3) Whenever a probation officer has reasonable cause to believe that a probationer sentenced for a felony has committed or is about to commit a violation of a condition of probation, the probation officer shall:

(a) Impose one or more administrative sanctions with the approval of his or her chief probation officer or such chief's designee. The decision to impose an administrative sanction rests with the probation officer and his or her chief probation officer or such chief's designee and shall be based upon the probationer's risk level, the severity of the violation, and the probationer's response to the violation. If an administrative sanction is to be imposed, the probationer shall acknowledge in writing the nature of the violation and agree upon the administrative sanction. The probationer has the right to decline to acknowledge the violation; and if he or she declines to acknowledge the violation, the probation officer shall take action pursuant to subdivision (3)(b) or (c) of this section. The probation officer shall submit a written report to the county attorney of the county where probation was imposed, outlining the nature of the probation violation and the sanction imposed;

(b) Seek the imposition of a custodial sanction with the approval of his or her chief probation officer or such chief's designee. The decision to impose a custodial sanction rests with the court and shall be based upon the probationer's risk level, the severity of the violation, and the probationer's response to the violation. If a custodial sanction is to be imposed, the probationer shall acknowledge in writing the nature of the violation and agree upon the custodial sanction. The probationer has the right to decline to acknowledge the violation; and if he or she declines to acknowledge the violation, the probation officer shall take action in accordance with section 29-2266.03. If the probationer acknowledges the violation and agrees upon the custodial sanction, the probation officer shall take action in accordance with subsection (1) of section 29-2266.03 and shall submit a written report to the county attorney of the county where probation was imposed, outlining the nature of the probation violation and the sanction to be imposed; or

(c) Submit a written report to the sentencing court, with a copy to the county attorney of the county where probation was imposed, outlining the nature of the probation violation and request that formal revocation proceedings be initiated against the probationer in accordance with sections 29-2267 and 29-2268.

(4) Immediately after arrest and detention pursuant to subsection (2) of this section, the probation officer shall notify the county attorney of the county where probation was imposed and submit a written report of the reason for such arrest and of any violation of probation. After prompt consideration of such written report, the county attorney shall:

(a) Notify the probation officer and the jail or detention facility, in writing, that he or she does not intend to file a motion to revoke probation, and authorize the release of the probationer from confinement; or

(b) File with the sentencing court a motion or information to revoke probation in accordance with sections 29-2267 and 29-2268.

(5) Whenever a county attorney receives a report from a probation officer that a probationer sentenced for a felony has violated a condition of probation, the county attorney may file a motion or information to revoke probation in accordance with sections 29-2267 and 29-2268.

(6) The administrator shall adopt and promulgate rules and regulations to carry out this section, including, but not limited to, rules and regulations to ensure prompt court review of requests for the imposition of custodial sanctions.

Source:Laws 2016, LB1094, § 21.    


29-2266.03. Probation officer; imposition of custodial sanction; report to sentencing court; hearing; notice; rights of probationer; county attorney; powers; commitment order.

(1) Whenever a probation officer seeks to impose a custodial sanction and the probationer acknowledges the violation, agrees to the custodial sanction, and waives the hearing, the probation officer shall submit a written report to the sentencing court outlining the nature of the violation and the sanction to be imposed. Upon receiving the probation officer’s report, the court shall issue a commitment order accordingly.

(2) Whenever a probation officer seeks to impose a custodial sanction and the probationer declines to acknowledge the violation, the probation officer shall submit a written report to the sentencing court outlining the nature of the violation and the sanction to be imposed. The probationer is entitled to a prompt consideration of such charge by the sentencing court. Except as provided in subsection (1) of this section, the court shall not impose a custodial sanction on a probationer unless the violation of probation is established at a hearing by a preponderance of the evidence.

(3) Prior to the custodial sanction hearing, the probation officer shall provide the probationer written notice of the grounds on which the request to impose a custodial sanction is based. The probationer has the right to hear and controvert the evidence against him or her, to offer evidence in his or her defense, and to be represented by counsel. The right to hear and controvert the evidence does not include a right to confront witnesses. The right to offer evidence includes, but is not limited to, the right to submit affidavits and reports for consideration by the court and the right to testify and call witnesses.

(4) The county attorney of the county where probation was imposed may appear at and participate in a custodial sanction hearing to offer evidence, call witnesses, and cross-examine witnesses. The court shall receive the affidavit and report of the probation officer as evidence and may receive additional affidavits and reports related to the requested sanction or sanctions.

(5) After a custodial sanction hearing, if the court determines that a custodial sanction should be imposed, the court shall issue a commitment order accordingly. The decision to impose a custodial sanction shall be based upon the probationer's risk level, the severity of the violation, and the probationer's response to the violation, and shall be made in accordance with the procedure in this section, relevant court rules, and the matrix of rewards and graduated sanctions developed by the administrator. A custodial sanction may be combined with one or more administrative sanctions.

Source:Laws 2016, LB1094, § 22.    


29-2267. Probation; revocation; procedure.

(1) Whenever a motion or information to revoke probation is filed, the probationer shall be entitled to a prompt consideration of such charge by the sentencing court. The court shall not revoke probation or increase the probation requirements imposed on the probationer, except after a hearing upon proper notice where the violation of probation is established by clear and convincing evidence.

(2) The probationer shall have the right to receive, prior to the hearing, a copy of the information or written notice of the grounds on which the information is based. The probationer shall have the right to hear and controvert the evidence against him or her, to offer evidence in his or her defense, and to be represented by counsel.

(3) For a probationer convicted of a felony, revocation proceedings may only be instituted in response to a substance abuse or noncriminal violation if the probationer has served ninety days of cumulative custodial sanctions during the current probation term.

Source:Laws 1971, LB 680, § 22;    Laws 2016, LB1094, § 23.    


Annotations

29-2268. Probation; post-release supervision; violation; court; determination.

(1) If the court finds that the probationer, other than a probationer serving a term of post-release supervision, did violate a condition of his or her probation, it may revoke the probation and impose on the offender such new sentence as might have been imposed originally for the crime of which he or she was convicted.

(2) If the court finds that a probationer serving a term of post-release supervision did violate a condition of his or her post-release supervision, it may revoke the post-release supervision and impose on the offender a term of imprisonment up to the original period of post-release supervision. If a sentence of incarceration is imposed upon revocation of post-release supervision, the court shall grant jail credit for any days spent in custody as a result of the post-release supervision, including custodial sanctions. The term shall be served in an institution under the jurisdiction of the Department of Correctional Services or in county jail subject to subsection (2) of section 28-105.

(3) If the court finds that the probationer did violate a condition of his or her probation, but is of the opinion that revocation is not appropriate, the court may order that:

(a) The probationer receive a reprimand and warning;

(b) Probation supervision and reporting be intensified;

(c) The probationer be required to conform to one or more additional conditions of probation which may be imposed in accordance with the Nebraska Probation Administration Act;

(d) A custodial sanction be imposed on a probationer convicted of a felony, subject to the provisions of section 29-2266.03; and

(e) The probationer's term of probation be extended, subject to the provisions of section 29-2263.

Source:Laws 1971, LB 680, § 23;    Laws 2015, LB605, § 70;    Laws 2016, LB1094, § 24;    Laws 2019, LB686, § 8.    


Annotations

29-2269. Act, how cited.

Sections 29-2243 to 29-2269 shall be known and may be cited as the Nebraska Probation Administration Act.

Source:Laws 1971, LB 680, § 31;    Laws 1990, LB 220, § 9;    Laws 2003, LB 46, § 14;    Laws 2005, LB 538, § 11;    Laws 2010, LB800, § 9;    Laws 2014, LB464, § 6;    Laws 2016, LB1094, § 25;    Laws 2023, LB50, § 12;    Laws 2024, LB631, § 25.    
Effective Date: July 19, 2024


29-2270. Individual less than nineteen years of age; conditions of probation.

Any individual who is less than nineteen years of age and who is subject to the supervision of a juvenile probation officer or an adult probation officer pursuant to an order of the district court, county court, or juvenile court shall, as a condition of probation, be required to:

(1) Attend school to obtain vocational training or to achieve an appropriate educational level as prescribed by the probation officer after consultation with the school the individual attends or pursuant to section 29-2272. If the individual fails to attend school regularly, maintain appropriate school behavior, or make satisfactory progress as determined by the probation officer after consultation with the school and the individual does not meet the requirements of subdivision (2) of this section, the district court, county court, or juvenile court shall take appropriate action to enforce, modify, or revoke its order granting probation; or

(2) Attend an on-the-job training program or secure and maintain employment. If the individual fails to attend the program or maintain employment and does not meet the requirements of subdivision (1) of this section, the district court, county court, or juvenile court shall take appropriate action to enforce, modify, or revoke its order granting probation.

Source:Laws 1994, LB 1250, § 1.    


Annotations

29-2271. Individuals less than nineteen years of age; applicability of section.

Section 29-2270 shall not apply to individuals who pass the general education development test or who earn a high school diploma. Subdivision (2) of section 29-2270 shall not apply to an individual required to attend school pursuant to section 79-201.

Source:Laws 1994, LB 1250, § 2;    Laws 1996, LB 900, § 1034.    


29-2272. Individuals less than nineteen years of age; readmission to school; school officials; duties; court review; expulsion; screening for disabilities.

(1) If the individual chooses to meet the requirements of section 29-2270 by attending a public school and the individual has previously been expelled from school, prior to the readmission of the individual to the school, school officials shall meet with the individual's probation officer and assist in developing conditions of probation that will provide specific guidelines for behavior and consequences for misbehavior at school as well as educational objectives that must be achieved. The district court, county court, or juvenile court shall review the conditions of probation for the individual and may continue the expulsion or return the individual to school under the agreed conditions.

(2) The school board may expel the individual for subsequent actions as provided in section 79-267.

(3) The individual shall be screened by the school to which he or she is admitted for possible disabilities and, if the screening so indicates, be referred for evaluation for possible placement in a special education program.

Source:Laws 1994, LB 1250, § 3;    Laws 1996, LB 900, § 1035.    


29-2273. Individuals less than nineteen years of age; establishment of programs; authorized.

The school district and the district court, county court, or juvenile court may establish education, counseling, or other programs to improve the behavior and educational performance of individuals covered by section 29-2270.

Source:Laws 1994, LB 1250, § 4.    


29-2274. Post-release supervision; report; contents.

(1) Beginning October 1, 2024, the Office of Probation Administration shall electronically submit a quarterly report to the Judiciary Committee of the Legislature and the Appropriations Committee of the Legislature regarding individuals serving sentences of post-release supervision. The report shall include:

(a) The number of individuals:

(i) On post-release supervision;

(ii) Successfully discharged from post-release supervision;

(iii) Unsuccessfully discharged from post-release supervision;

(iv) Whose post-release supervision is revoked for technical violations;

(v) Whose post-release supervision is revoked for law violations;

(vi) Who abscond and do not complete the conditions of post-release supervision;

(vii) Who are sent to jails to serve custodial sanctions; and

(viii) Whose post-release supervision has been revoked;

(b) The number of jail beds utilized for custodial sanctions and the number of days such beds are utilized;

(c) The types of programming offered to individuals on post-release supervision; and

(d) The risk scores of individuals on post-release supervision at the time they began serving a sentence of imprisonment and upon discharge from post-release supervision.

(2) The report shall redact all personal identifying information of individuals on post-release supervision.

Source:Laws 2024, LB631, § 21.    
Effective Date: July 19, 2024


29-2275. Repealed. Laws 1989, LB 2, § 2.

29-2276. Repealed. Laws 1989, LB 2, § 2.

29-2277. Terms, defined.

As used in sections 29-2277 to 29-2279, unless the context otherwise requires:

(1) Agency means any public or governmental unit, institution, division, or agency or any private nonprofit organization which provides services intended to enhance the social welfare or general well-being of the community, which agrees to accept community service from offenders and to supervise and report the progress of such community service to the court or its representative;

(2) Community correctional facility or program has the same meaning as in section 47-621; and

(3) Community service means uncompensated labor for an agency to be performed by an offender when the offender is not working or attending school.

Source:Laws 1986, LB 528, § 1;    Laws 2017, LB259, § 7.    


29-2278. Community service; sentencing; when; failure to perform; effect; exception to eligibility.

An offender may be sentenced to community service (1) as an alternative to a fine, incarceration, or supervised probation, or in lieu of incarceration if he or she fails to pay a fine as ordered, except when the violation of a misdemeanor or felony requires mandatory incarceration or imposition of a fine, (2) as a condition of probation, or (3) in addition to any other sanction. The court or magistrate shall establish the terms and conditions of community service including, but not limited to, a reasonable time limit for completion. The performance or completion of a sentence of community service or an order to complete community service may be supervised or confirmed by a community correctional facility or program or another similar entity, as ordered by the court or magistrate. If an offender fails to perform community service as ordered by the court or magistrate, he or she may be arrested and after a hearing may be resentenced on the original charge, have probation revoked, or be found in contempt of court. No person convicted of an offense involving serious bodily injury or sexual assault shall be eligible for community service.

Source:Laws 1986, LB 528, § 2;    Laws 2017, LB259, § 8.    


Annotations

29-2279. Community service; length.

The length of a community service sentence shall be as follows:

(1) Pursuant to section 29-2206, 29-2208, or 29-2412, for an infraction, not less than four nor more than twenty hours;

(2) For a violation of a city ordinance that is an infraction and not pursuant to section 29-2206, 29-2208, or 29-2412, not less than four hours;

(3) For a Class IV or Class V misdemeanor, not less than four nor more than eighty hours;

(4) For a Class III or Class IIIA misdemeanor, not less than eight nor more than one hundred fifty hours;

(5) For a Class I or Class II misdemeanor, not less than twenty nor more than four hundred hours;

(6) For a Class IIIA or Class IV felony, not less than two hundred nor more than three thousand hours; and

(7) For a Class III felony, not less than four hundred nor more than six thousand hours.

Source:Laws 1986, LB 528, § 3;    Laws 1997, LB 364, § 15;    Laws 2017, LB259, § 9.    


29-2280. Restitution; order; when.

A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted. With the consent of the parties, the court may order restitution for the actual physical injury or property damage or loss sustained by the victim of an uncharged offense or an offense dismissed pursuant to plea negotiations. Whenever the court believes that restitution may be a proper sentence or the victim of any offense or the prosecuting attorney requests, the court shall order that the presentence investigation report include documentation regarding the nature and amount of the actual damages sustained by the victim.

Source:Laws 1986, LB 956, § 1;    Laws 1992, LB 111, § 4.    


Annotations

29-2281. Restitution; determination of amount; fines and costs; manner and priority of payment.

(1) To determine the amount of restitution, the court may hold a hearing at the time of sentencing. The amount of restitution shall be based on the actual damages sustained by the victim and shall be supported by evidence which shall become a part of the court record. The court shall consider the defendant's earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim. In considering the earning ability of a defendant who is sentenced to imprisonment, the court may receive evidence of money anticipated to be earned by the defendant during incarceration.

(2) A person may not be granted or denied probation or parole either solely or primarily due to his or her financial resources or ability or inability to pay restitution.

(3) The court may order that restitution be made immediately, in specified installments, or within a specified period of time not to exceed five years after the date of judgment or defendant's final release date from imprisonment, whichever is later.

(4) If, in addition to restitution, a defendant is ordered to pay fines and costs as part of the judgment and the defendant fails to pay the full amount owed, funds shall first be applied to a restitution obligation with the remainder applied towards fines and costs only when the restitution obligation is satisfied in full.

(5) Restitution payments shall be made through the clerk of the court ordering restitution. The clerk shall maintain a record of all receipts and disbursements.

Source:Laws 1986, LB 956, § 2;    Laws 1992, LB 1059, § 26; Laws 2015, LB605, § 71;    Laws 2023, LB50, § 15.    


Annotations

29-2282. Property damage; bodily injury; death; relief authorized.

In determining restitution, if the offense results in damage, destruction, or loss of property, the court may require: (1) Return of the property to the victim, if possible; (2) payment of the reasonable value of repairing the property, including property returned by the defendant; or (3) payment of the reasonable replacement value of the property, if return or repair is impossible, impractical, or inadequate. If the offense results in bodily injury, the court may require payment of necessary medical care, including, but not limited to, physical or psychological treatment and therapy, and payment for income lost due to such bodily injury. If the offense results in the death of the victim, the court may require payment to be made to the estate of the victim for the cost of any medical care prior to death and for funeral and burial expenses.

Source:Laws 1986, LB 956, § 3.    


Annotations

29-2283. Collateral payment; effect; setoff.

The court shall not impose restitution for a loss for which the victim has received compensation, except that the court may order payment by the defendant to any person who has compensated the victim to the extent that such compensation has been provided. Any amount paid to a victim pursuant to an order of restitution shall be set off against any amount later recovered as compensatory damages in a civil action.

Source:Laws 1986, LB 956, § 4.    


Annotations

29-2284. Probation or parole; revocation; conditions.

If the defendant is placed on probation or paroled, the court may revoke probation, and the Board of Parole may revoke parole if the defendant fails to comply with the restitution order. In determining whether to revoke probation or parole, the court or Board of Parole shall consider the defendant's earning ability and financial resources, the willfulness of the defendant's failure to pay, and any special circumstances affecting the defendant's ability to pay. Probation or parole may not be revoked unless noncompliance with the restitution order is attributable to an intentional refusal to obey the order or a failure to make a good faith effort to comply with the order.

Source:Laws 1986, LB 956, § 5.    


29-2285. Restitution; petition to adjust; procedures.

A defendant, victim, or the personal representative of the victim's estate may petition the sentencing court to adjust or otherwise waive payment or performance of any ordered restitution or any unpaid or unperformed portion thereof. The court may schedule a hearing and give the parties notice of the hearing date, place, and time and inform the parties that he or she will have an opportunity to be heard. If the court finds that the circumstances upon which it based the imposition or amount and method of payment or other restitution ordered no longer exist or that it otherwise would be unjust to require payment or other restitution as imposed, the court may adjust or waive payment of the unpaid portion thereof or other restitution or modify the time or method of making restitution.

Source:Laws 1986, LB 956, § 6.    


29-2286. Restitution; enforcement; by whom.

An order of restitution may be enforced by a victim named in the order to receive the restitution or the personal representative of the victim's estate in the same manner as a judgment in a civil action. If the victim is deceased and no claim is filed by the personal representative of the estate or if the victim cannot be found, the Attorney General may enforce such order of restitution for the benefit of the Victim's Compensation Fund.

Source:Laws 1986, LB 956, § 7.    


Cross References

29-2287. Restitution; effect on civil action.

(1) Sections 29-2280 to 29-2289 shall not limit or impair the right of a victim to sue and recover damages from the defendant in a civil action.

(2) The findings in the sentencing hearing and the fact that restitution was required or paid shall not be admissible as evidence in a civil action and shall have no legal effect on the merits of a civil action.

(3) Any restitution paid by the defendant to the victim shall be set off against any judgment in favor of the victim in a civil action arising out of the facts or events which were the basis for the restitution. The court trying the civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.

Source:Laws 1986, LB 956, § 8.    


29-2288. Restitution; imposed on organization; persons liable to pay; failure; effect.

If restitution is imposed on an organization, it shall be the duty of any person authorized to order the disbursement of assets of the organization, and his or her superiors, to pay the restitution from assets of the organization under his or her control. Failure to do so shall render a person subject to an order to show cause why he or she should not be held in contempt of court.

Source:Laws 1986, LB 956, § 9.    


29-2289. Victim's Compensation Fund; subrogation; subordination.

(1) Whenever a victim is paid by the Victim's Compensation Fund for loss arising out of a criminal act, the fund shall be subrogated to the rights of the victim to any restitution ordered by the court.

(2) The rights of the Victim's Compensation Fund shall be subordinate to the claims of victims who have suffered loss arising out of the offenses or any transaction which is part of the same continuous scheme of criminal activity.

Source:Laws 1986, LB 956, § 10.    


Cross References

29-2290. Test, counseling, and reports; when required; Department of Correctional Services; Department of Health and Human Services; duties; cost; appeal; effect.

(1) Notwithstanding any other provision of law, when a person has been convicted of sexual assault pursuant to sections 28-317 to 28-320, sexual assault of a child in the second or third degree pursuant to section 28-320.01, sexual assault of a child in the first degree pursuant to section 28-319.01, or any other offense under Nebraska law when sexual contact or sexual penetration is an element of the offense, the presiding judge shall, at the request of the victim as part of the sentence of the convicted person when the circumstances of the case demonstrate a possibility of transmission of the human immunodeficiency virus, order the convicted person to submit to a human immunodeficiency virus antibody or antigen test. Such test shall be conducted under the jurisdiction of the Department of Correctional Services. The Department of Correctional Services shall make the results of the test available only to the victim, to the parents or guardian of the victim if the victim is a minor or is mentally incompetent, to the convicted person, to the parents or guardian of the convicted person if the convicted person is a minor or mentally incompetent, to the court issuing the order for testing, and to the Department of Health and Human Services.

(2) If the human immunodeficiency virus test indicates the presence of human immunodeficiency virus infection, the Department of Correctional Services shall provide counseling to the convicted person regarding human immunodeficiency virus disease and referral to appropriate health care and support services.

(3) The Department of Correctional Services shall provide to the Department of Health and Human Services the result of any human immunodeficiency virus test conducted pursuant to this section and information regarding the request of the victim. The Department of Health and Human Services shall notify the victim or the parents or guardian of the victim if the victim is a minor or mentally incompetent and shall make available to the victim counseling and testing regarding human immunodeficiency virus disease and referral to appropriate health care and support services.

(4) The cost of testing under this section shall be paid by the convicted person tested unless the court has determined the convicted person to be indigent.

(5) Filing of a notice of appeal shall not automatically stay an order that the convicted person submit to a human immunodeficiency virus test.

(6) For purposes of this section:

(a) Convicted shall include adjudicated under juvenile proceedings;

(b) Convicted person shall include a child adjudicated of an offense described in subsection (1) of this section; and

(c) Sentence shall include a disposition under juvenile proceedings.

(7) The Department of Correctional Services, in consultation with the Department of Health and Human Services, shall adopt and promulgate rules and regulations to carry out this section.

Source:Laws 1991, LB 186, § 5;    Laws 1994, LB 693, § 1;    Laws 1996, LB 1044, § 77;    Laws 2006, LB 1199, § 15.    


Cross References

29-2291. Misdemeanor domestic violence conviction; notification to defendant; State Court Administrator's Office; duty.

(1) When sentencing a person convicted of a misdemeanor crime of domestic violence as defined in 18 U.S.C. 921(a)(33), as such section existed on July 18, 2008, the court shall provide written or oral notification to the defendant that it may be a violation of federal law for the individual: To ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

(2) The State Court Administrator's Office shall create a standard notification that provides the information in subsection (1) of this section and shall provide a copy of such notification to all judges in this state.

Source:Laws 2008, LB1014, § 17.    


29-2292. Deferral of entry of judgment of conviction; defendant placed on probation; conditions; factors; new sentence; when.

(1) Upon a finding of guilt for which a judgment of conviction may be rendered, a defendant may request the court defer the entry of judgment of conviction. Upon such request and after giving the prosecutor and defendant the opportunity to be heard, the court may defer the entry of a judgment of conviction and the imposition of a sentence and place the defendant on probation, upon conditions as the court may require under section 29-2262.

(2) The court shall not defer judgment under this section if:

(a) The offense is a violation of section 42-924;

(b) The victim of the offense is an intimate partner as defined in section 28-323;

(c) The offense is a violation of section 60-6,196 or 60-6,197 or a city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197; or

(d) The defendant is not eligible for probation.

(3) Whenever a court considers a request to defer judgment, the court shall consider the factors set forth in section 29-2260 and any other information the court deems relevant.

(4) Except as otherwise provided in this section and sections 29-2293 and 29-2294, the supervision of a defendant on probation pursuant to a deferred judgment shall be governed by the Nebraska Probation Administration Act and sections 29-2270 to 29-2273.

(5) After a hearing providing the prosecutor and defendant an opportunity to be heard and upon a finding that a defendant has violated a condition of his or her probation, the court may enter any order authorized by section 29-2268 or pronounce judgment and impose such new sentence as might have been originally imposed for the offense for which the defendant was convicted.

(6) Upon satisfactory completion of the conditions of probation and the payment or waiver of all administrative and programming fees assessed under section 29-2293, the defendant or prosecutor may file a motion to withdraw any plea entered by the defendant and to dismiss the action without entry of judgment.

(7) The provisions of this section apply to offenses committed on or after July 1, 2020. For purposes of this section, an offense shall be deemed to have been committed prior to July 1, 2020, if any element of the offense occurred prior to such date.

Source:Laws 2019, LB686, § 9.    


Cross References

29-2293. Court order; fees.

Upon entry of a deferred judgment pursuant to section 29-2292 or 29-4803, the court shall order the defendant to pay all administrative and programming fees authorized under section 29-2262.06, unless waived under such section. The defendant shall pay any such fees to the clerk of the court. The clerk of the court shall remit all fees so collected to the State Treasurer for credit to the Probation Program Cash Fund.

Source:Laws 2019, LB686, § 10;    Laws 2024, LB253, § 11.    
Operative Date: July 1, 2025


29-2294. Final order.

An entry of deferred judgment pursuant to section 29-2292 or 29-4803 is a final order as defined in section 25-1902.

Source:Laws 2019, LB686, § 11;    Laws 2024, LB253, § 12.    
Operative Date: July 1, 2025


29-2301. Appeal; notice; effect.

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.

Source:G.S.1873, c. 58, § 503, p. 833; R.S.1913, § 9172; C.S.1922, § 10179; C.S.1929, § 29-2301; R.S.1943, § 29-2301; Laws 1951, c. 87, § 3, p. 252; Laws 1957, c. 107, § 1, p. 378; Laws 1973, LB 146, § 4;    Laws 1982, LB 722, § 3; Laws 1991, LB 732, § 75.


Cross References

Annotations

29-2302. Misdemeanor cases; appeal; recognizance.

The execution of sentence and judgment against any person or persons convicted and sentenced in the district court for a misdemeanor shall be suspended during an appeal to the Court of Appeals or Supreme Court. The district court shall fix the amount of a recognizance, which in all cases shall be reasonable, conditioned that the appeal shall be prosecuted without delay and that in case the judgment is affirmed he, she, or they will abide, do, and perform the judgment and sentence of the district court.

Source:G.S.1873, c. 58, § 504, p. 834; R.S.1913, § 9173; Laws 1917, c. 149, § 1, p. 344; C.S.1922, § 10180; C.S.1929, § 29-2302; R.S.1943, § 29-2302; Laws 1982, LB 722, § 4; Laws 1991, LB 732, § 76.


Annotations

29-2303. Felony cases; appeal; custody of person convicted; escape; procedures.

Whenever a person shall be convicted of a felony, and the judgment shall be suspended as a result of the notice of appeal, it shall be the duty of the court to order the person so convicted into the custody of the sheriff, to be imprisoned until the appeal is disposed of, or such person is admitted to bail. If a person so convicted shall escape, the jailer or other officer from whose custody the escape was made may return to the clerk of the proper court the writ by virtue of which the convict was held in custody, with information of the escape endorsed thereon, whereupon the clerk shall issue a warrant stating such conviction, and commanding the sheriff of the county to pursue such person into any county in the state; and the sheriff shall take such person and commit him or her to the jail of the county.

Source:G.S.1873, c. 58, § 505, p. 834; R.S.1913, § 9174; C.S.1922, § 10181; C.S.1929, § 29-2303; R.S.1943, § 29-2303; Laws 1982, LB 722, § 5.


Annotations

29-2304. Repealed. Laws 1982, LB 722, § 13.

29-2305. Appeal; dismissed; conviction affirmed; procedure; defendant; credit for time incarcerated.

If the appeal in such case is dismissed or the conviction is affirmed on hearing, such judgment shall be executed by the court by which it was rendered on receipt of the mandate of the appellate court. A defendant who was not admitted to bail during the time the appeal was pending shall receive credit against the sentence for all of the time he or she was incarcerated while the appeal was pending.

Source:G.S.1873, c. 58, §§ 506, 507, p. 834; R.S.1913, § 9176; C.S.1922, § 10183; C.S.1929, § 29-2305; R.S.1943, § 29-2305; Laws 1982, LB 722, § 6; Laws 1991, LB 732, § 77.


29-2306. Criminal case; docket fee; when paid by county; in forma pauperis; costs.

If a defendant in a criminal case files, within thirty days after the entry of the judgment, order, or sentence, an application to proceed in forma pauperis in accordance with sections 25-2301 to 25-2310 with the clerk of the district court, then no payment of the docket fee shall be required of him or her unless the defendant's application to proceed in forma pauperis is denied. The clerk of the district court shall forward a certified copy of such application, including the affidavit, to the Clerk of the Supreme Court. If an application to proceed in forma pauperis is filed and granted, the Court of Appeals or Supreme Court shall acquire jurisdiction of the case when the notice of appeal is filed with the clerk of the district court. In cases in which an application to proceed in forma pauperis is granted, the amount of the costs shall be endorsed on the mandate and shall be paid by the county in which the indictment was found.

Source:G.S.1873, c. 58, § 508, p. 834; Laws 1883, c. 86, § 1, p. 332; R.S.1913, § 9177; C.S.1922, § 10184; C.S.1929, § 29-2306; R.S.1943, § 29-2306; Laws 1949, c. 73, § 1, p. 187; Laws 1957, c. 107, § 2, p. 379; Laws 1961, c. 134, § 3, p. 390; Laws 1973, LB 146, § 5;    Laws 1982, LB 722, § 7; Laws 1987, LB 33, § 4;    Laws 1991, LB 732, § 78; Laws 1999, LB 43, § 17;    Laws 1999, LB 689, § 13.    


Cross References

Annotations

29-2306.01. Repealed. Laws 1973, LB 146, § 6.

29-2306.02. Repealed. Laws 1973, LB 146, § 6.

29-2306.03. Repealed. Laws 1973, LB 146, § 6.

29-2307. Repealed. Laws 1973, LB 146, § 6.

29-2308. Reduction of sentence; conditions; appellate court; powers.

(1) In all criminal cases that now are or may hereafter be pending in the Court of Appeals or Supreme Court, the appellate court may reduce the sentence rendered by the district court against the accused when in its opinion the sentence is excessive, and it shall be the duty of the appellate court to render such sentence against the accused as in its opinion may be warranted by the evidence. No judgment shall be set aside, new trial granted, or judgment rendered in any criminal case on the grounds of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure if the appellate court, after an examination of the entire cause, considers that no substantial miscarriage of justice has actually occurred.

(2) In all criminal cases based on offenses subject to determinate sentencing under subsection (2) of section 29-2204.02, the appellate court may determine that a sentence is excessive because the district court did not provide substantial and compelling reasons for imposing a sentence other than probation.

Source:Laws 1887, c. 110, § 1, p. 668; R.S.1913, § 9179; Laws 1921, c. 157, § 1, p. 648; C.S.1922, § 10186; C.S.1929, § 29-2308; R.S.1943, § 29-2308; Laws 1982, LB 722, § 8; Laws 1991, LB 732, § 79; Laws 2015, LB605, § 72.    


Annotations

29-2308.01. Repealed. Laws 1995, LB 127, § 3.

29-2309. Repealed. Laws 1982, LB 722, § 13.

29-2310. Repealed. Laws 1982, LB 722, § 13.

29-2311. Repealed. Laws 1969, c. 411, § 1.

29-2312. Repealed. Laws 1969, c. 411, § 1.

29-2313. Repealed. Laws 1969, c. 411, § 1.

29-2314. Repealed. Laws 1959, c. 121, § 4.

29-2315. Prosecuting attorney, defined.

For purposes of sections 29-2315.01 to 29-2325, prosecuting attorney means a county attorney, city attorney, or designated attorney.

Source:Laws 2003, LB 17, § 10.    


29-2315.01. Appeal by prosecuting attorney; application; procedure.

The prosecuting attorney may take exception to any ruling or decision of the court made during the prosecution of a cause by presenting to the trial court the application for leave to file an appeal with reference to the rulings or decisions of which complaint is made. Such application shall contain a copy of the ruling or decision complained of, the basis and reasons for objection thereto, and a statement by the prosecuting attorney as to the part of the record he or she proposes to present to the appellate court. Such application shall be filed with the trial court within twenty days after the final order is entered in the cause, and upon presentation, if the trial court finds it is in conformity with the truth, the judge of the trial court shall sign the same and shall further indicate thereon whether in his or her opinion the part of the record which the prosecuting attorney proposes to present to the appellate court is adequate for a proper consideration of the matter. The prosecuting attorney shall then file such application with the appellate court within thirty days from the date of the final order. If the application is granted, the prosecuting attorney shall within thirty days from such granting order a bill of exceptions in accordance with section 29-2020 if such bill of exceptions is desired and otherwise proceed to obtain a review of the case as provided in section 25-1912.

Source:Laws 1959, c. 121, § 1, p. 453; Laws 1961, c. 135, § 4, p. 391; Laws 1982, LB 722, § 9; Laws 1987, LB 33, § 5;    Laws 1991, LB 732, § 80; Laws 1992, LB 360, § 8;    Laws 2003, LB 17, § 11;    Laws 2018, LB193, § 59.    


Annotations

29-2315.02. Error proceedings by county attorney; finding regarding indigency; effect on appointment of counsel for defendant; fees and expenses.

If the application is granted in cases where the court finds a defendant to be indigent, the trial court shall first contact the public defender, in counties with a public defender, to inquire whether or not the public defender is able to accept the appointment to argue the case against the prosecuting attorney. If the public defender declines the appointment because of a conflict of interest, the court shall appoint another attorney. An attorney other than the public defender appointed under this section shall file an application for fees and expenses in the court which appointed such attorney for all fees and expenses reasonably necessary to permit such attorney to effectively and competently represent the defendant and to argue the case against the prosecuting attorney. Such fees and expenses shall be paid out of the treasury of the county in the full amount determined by the court. If the court does not find a defendant indigent and does not appoint the public defender or another attorney, the defendant may be represented by an attorney of the defendant's choice.

Source:Laws 1959, c. 121, § 2, p. 454; Laws 2023, LB50, § 16.    


Annotations

29-2316. Error proceedings by prosecuting attorney; decision on appeal; effect.

The judgment of the court in any action taken pursuant to section 29-2315.01 shall not be reversed nor in any manner affected when the defendant in the trial court has been placed legally in jeopardy, but in such cases the decision of the appellate court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered or which may thereafter arise in the state. When the decision of the appellate court establishes that the final order of the trial court was erroneous and the defendant had not been placed legally in jeopardy prior to the entry of such erroneous order, the trial court may upon application of the prosecuting attorney issue its warrant for the rearrest of the defendant and the cause against him or her shall thereupon proceed in accordance with the law as determined by the decision of the appellate court.

Source:G.S.1873, c. 58, § 517, p. 836; R.S.1913, § 9187; C.S.1922, § 10194; C.S.1929, § 29-2316; R.S.1943, § 29-2316; Laws 1959, c. 121, § 3, p. 454; Laws 1991, LB 732, § 81; Laws 1992, LB 360, § 9;    Laws 2003, LB 17, § 12.    


Annotations

29-2317. Notice of intent to appeal to district court; procedure.

(1) A prosecuting attorney may take exception to any ruling or decision of the county court made during the prosecution of a cause by presenting to the court a notice of intent to take an appeal to the district court with reference to the rulings or decisions of which complaint is made.

(2) The notice shall contain a copy of the rulings or decisions complained of, the basis and reasons for objection thereto, and a statement by the prosecuting attorney as to the part of the record he or she proposes to present to the district court. The notice shall be presented to the court within twenty days after the final order is entered in the cause. If the court finds it is in conformity with the truth, the judge shall sign it and shall indicate thereon whether, in his or her opinion, the part of the record which the prosecuting attorney proposes to present to the district court is adequate for a proper consideration of the matter.

(3) The prosecuting attorney shall then file the notice in the district court within thirty days from the date of final order and within thirty days from the date of filing the notice shall file a bill of exceptions covering the part of the record referred to in the notice. Such appeal shall be on the record.

Source:Laws 1975, LB 130, § 1;    Laws 1984, LB 13, § 70;    Laws 1987, LB 33, § 6;    Laws 2003, LB 17, § 13.    


Cross References

Annotations

29-2318. Appeal of ruling or decision; finding regarding indigency; effect on appointment of counsel for defendant; fees and expenses.

When a notice is filed in cases where the court finds a defendant to be indigent, the trial court shall first contact the public defender, in counties with a public defender, to inquire whether or not the public defender is able to accept the appointment to argue the case against the prosecuting attorney. If the public defender declines the appointment because of a conflict of interest, the court shall appoint another attorney. An attorney other than the public defender appointed under this section shall file an application for fees and expenses in the court which appointed such attorney for all fees and expenses reasonably necessary to permit such attorney to effectively and competently represent the defendant and to argue the case against the prosecuting attorney. Such fees and expenses shall be paid out of the treasury of the county in the full amount determined by the court. If the court does not find a defendant indigent and does not appoint the public defender or another attorney, the defendant may be represented by an attorney of the defendant's choice.

Source:Laws 1975, LB 130, § 2;    Laws 1984, LB 13, § 71;    Laws 2023, LB50, § 17.    


Annotations

29-2319. Exception proceedings by prosecuting attorney; decision of district court; effect.

(1) The judgment of the court in any action taken under the provisions of sections 29-2317 and 29-2318 shall not be reversed nor in any manner affected when the defendant in the trial court has been placed legally in jeopardy, but in such cases the decision of the district court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may thereafter arise in the district.

(2) When the decision of the district court establishes that the final order of the trial court was erroneous and that the defendant had not been placed legally in jeopardy prior to the entry of such erroneous order, the trial court may upon application of the prosecuting attorney issue its warrant for the rearrest of the defendant and the cause against the defendant shall thereupon proceed in accordance with the law as determined by the decision of the district court.

(3) The prosecuting attorney may take exception to any ruling or decision of the district court in the manner provided by sections 29-2315.01 to 29-2316.

Source:Laws 1975, LB 130, § 3;    Laws 2003, LB 17, § 14.    


Annotations

29-2320. Appeal of sentence by prosecuting attorney or Attorney General; when authorized.

Whenever a defendant is found guilty of a felony following a trial or the entry of a plea of guilty or tendering a plea of nolo contendere, the prosecuting attorney charged with the prosecution of such defendant or the Attorney General may appeal the sentence imposed if there is a reasonable belief, based on all of the facts and circumstances of the particular case, that the sentence is excessively lenient.

Source:Laws 1982, LB 402, § 1;    Laws 1991, LB 732, § 82; Laws 2003, LB 17, § 15;    Laws 2009, LB63, § 26.    


Annotations

29-2321. Appeal of sentence by prosecuting attorney or Attorney General; procedure.

(1) Appeals under sections 29-2320 to 29-2325 shall be taken, by either the Attorney General or the prosecuting attorney, as follows:

(a) If the appeal is filed by the Attorney General, a notice of appeal shall be filed in the district court within twenty days after imposition of the sentence. A copy of the notice of appeal shall be sent to either the defendant or counsel for the defendant; or

(b) If the prosecuting attorney wishes to file the appeal, he or she, within ten days after imposition of the sentence, shall request approval from the Attorney General to proceed with the appeal. A copy of the request for approval shall be sent to the defendant or counsel for the defendant.

(2) If the Attorney General approves the request described in subdivision (1)(b) of this section, the prosecuting attorney shall file a notice of appeal indicating such approval in the district court. Such notice of appeal must be filed within twenty days of the imposition of sentence. A copy of the notice of appeal shall be sent to the defendant or counsel for the defendant.

(3) If the Attorney General does not approve the request described in subdivision (1)(b) of this section, an appeal under sections 29-2320 to 29-2325 shall not be permitted.

(4) In addition to such notice of appeal, the docket fee required by section 33-103 shall be deposited with the clerk of the district court.

(5) Upon compliance with the requirements of this section, the appeal shall proceed as provided by law for appeals to the Court of Appeals.

Source:Laws 1982, LB 402, § 2;    Laws 1991, LB 732, § 83; Laws 2003, LB 17, § 16;    Laws 2009, LB63, § 27.    


Annotations

29-2322. Appeal of sentence by prosecutor; review; considerations.

If the appeal has been properly filed, as set forth in section 29-2321, the appellate court, upon a review of the record, shall determine whether the sentence imposed is excessively lenient, having regard for:

(1) The nature and circumstances of the offense;

(2) The history and characteristics of the defendant;

(3) The need for the sentence imposed:

(a) To afford adequate deterrence to criminal conduct;

(b) To protect the public from further crimes of the defendant;

(c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and

(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and

(4) Any other matters appearing in the record which the appellate court deems pertinent.

Source:Laws 1982, LB 402, § 3;    Laws 1991, LB 732, § 84.


Annotations

29-2323. Appeal of sentence by prosecutor; sentencing alternatives.

Upon consideration of the criteria enumerated in section 29-2322, the appellate court shall:

(1) If it determines that the sentence imposed is excessively lenient, set aside the sentence, and:

(a) Remand the case for imposition of a greater sentence;

(b) Remand the case for further sentencing proceedings; or

(c) Impose a greater sentence; or

(2) If it determines that the sentence imposed is not excessively lenient, affirm the sentence.

Source:Laws 1982, LB 402, § 4;    Laws 1991, LB 732, § 85.


Annotations

29-2324. Appeal of sentence by prosecutor; credit for time served.

If a more severe sentence is imposed by the appellate court or on remand, any time served on the sentence appealed from shall be deemed to have been served on the new sentence imposed under subdivision (1) of section 29-2323.

Source:Laws 1982, LB 402, § 6;    Laws 1991, LB 732, § 86.


29-2325. Appeal of sentence by prosecutor; defendant's right to appeal not affected.

Nothing contained in sections 29-2320 to 29-2325 shall affect the right of the defendant to appeal the conviction and sentence, as otherwise provided by law.

Source:Laws 1982, LB 402, § 6.    


29-2326. Appeal; no oral argument; when.

There shall be no oral argument in an appeal to the district court in any criminal case where the sole allegation of error is that the sentence imposed was excessive or excessively lenient or the trial court refused to reduce the sentence upon application of the defendant.

Source:Laws 2008, LB1014, § 15.    


29-2327. District court; Court of Appeals; Supreme Court; remit assessment.

In every case of appeal of a conviction of any person for any felony or misdemeanor to the district court, Court of Appeals, or Supreme Court that is affirmed, the court shall remit the assessment as provided in section 33-157.

Source:Laws 2010, LB510, § 3.    


29-2401. Execution of sentences; conviction of felony; delivery of prisoner to Department of Correctional Services.

Every person sentenced to the Department of Correctional Services shall, within thirty days, and as early as practicable after his sentence, unless the execution thereof be suspended, be conveyed to the facility designated by the Director of Correctional Services by the sheriff of the county in which the conviction took place, and shall there be delivered into the custody of the division, together with a copy of the sentence of the court ordering such imprisonment, there to be safely kept until the term of his confinement shall have expired, or he shall be pardoned. If the execution of the sentence be suspended and the judgment is afterward affirmed, the defendant shall be conveyed to the facility designated by the director within thirty days after the court shall direct the sentence to be executed.

Source:G.S.1873, c. 58, § 518, p. 836; R.S.1913, § 9188; C.S.1922, § 10195; C.S.1929, § 29-2401; R.S.1943, § 29-2401; Laws 1969, c. 817, § 67, p. 3105.


Annotations

29-2402. Delivery of prisoner to Department of Correctional Services; powers and duties of sheriff.

The sheriffs of the several counties of this state, during the time they shall be employed in conveying to the Department of Correctional Services any person sentenced to the custody thereof, shall have the same power and authority to secure him in any jail within the state, and to demand the assistance of any sheriff, jailer or other person within this state, in keeping such prisoner, as if the sheriff were in his own proper county; and all such sheriffs, jailers or other persons so called upon shall be liable, on refusal, to the same penalties as if the sheriff making the demand were in his own county.

Source:G.S.1873, c. 58, § 519, p. 836; R.S.1913, § 9189; C.S.1922, § 10196; C.S.1929, § 29-2402; R.S.1943, § 29-2402; Laws 1969, c. 817, § 68, p. 3105.


29-2403. Person sentenced to county jail; commitment procedure.

When any person convicted of an offense is sentenced to imprisonment in the county jail, the court or magistrate shall order the defendant into the custody of the sheriff or other proper officer and shall issue to such officer a warrant of commitment. The officer shall deliver the convict, together with a copy of the warrant, to the jailer, in whose custody he or she shall remain in the jail of the proper county until the term of his or her confinement shall have expired or he or she shall have been pardoned or otherwise legally discharged.

Source:G.S.1873, c. 58, § 520, p. 837; R.S.1913, § 9190; C.S.1922, § 10197; C.S.1929, § 29-2403; R.S.1943, § 29-2403; Laws 1988, LB 1030, § 27.    


Annotations

29-2404. Misdemeanor cases; fines and costs; judgment; levy; commitment.

In all cases of misdemeanor in which courts or magistrates shall have power to fine any offender, and shall render judgment for such fine, it shall be lawful to issue executions for the same, with the costs taxed against the offender, to be levied on the goods and chattels of any such offender, and, for want of the same, upon the body of the offender, who shall, following a determination that the offender has the financial ability to pay such fine pursuant to section 29-2412, be committed to the jail of the proper county until the fine and costs be paid, or secured to be paid, or the offender be otherwise discharged according to law.

Source:G.S.1873, c. 58, § 521, p. 837; R.S.1913, § 9191; C.S.1922, § 10198; C.S.1929, § 29-2404; R.S.1943, § 29-2404; Laws 2017, LB259, § 10.    


Annotations

29-2405. Repealed. Laws 2014, LB 907, § 22.

29-2406. Sentence to cell; execution when no cell in jail.

Where any jail, in any county in this state, shall not have a cell or dungeon therein, then, and in that case, when the court shall sentence any person or persons to imprisonment in the cell of any jail, under the provisions of this code, the person or persons so sentenced shall be confined in that part of the jail usually allotted to the confinement of criminals, or such convict may be imprisoned as provided in section 29-1001, when there is the necessity thereof mentioned in said section.

Source:G.S.1873, c. 58, § 523, p. 837; R.S.1913, § 9193; C.S.1922, § 10200; C.S.1929, § 29-2406; R.S.1943, § 29-2406.


29-2407. Judgments for fines, costs, and forfeited recognizances; lien; exemptions; duration.

Judgments for fines and costs in criminal cases shall be a lien upon all the property of the defendant within the county from the time of filing the case by the clerk of the proper court, and judgments upon forfeited recognizance shall be a like lien from the time of forfeiture. No property of any convict shall be exempt from execution issued upon any such judgment as set out in this section against such convict except in cases when the convict is sentenced to a Department of Correctional Services adult correctional facility for a period of more than two years or to suffer death, in which cases there shall be the same exemptions as at the time may be provided by law for civil cases. The lien on real estate of any such judgment for costs shall terminate as provided in section 25-1716.

Source:G.S.1873, c. 58, § 524, p. 837; R.S.1913, § 9194; C.S.1922, § 10201; C.S.1929, § 29-2407; R.S.1943, § 29-2407; Laws 1974, LB 666, § 2;    Laws 1993, LB 31, § 11;    Laws 2015, LB268, § 21;    Referendum 2016, No. 426; Laws 2018, LB193, § 60.    


Cross References

Annotations

29-2408. Judgments for fines, costs, and forfeited recognizances; execution.

It shall be the duty of the clerk of the district court to issue execution for every judgment rendered during the term, for fines and forfeited recognizance, and for the costs in such cases, which remain unpaid and unreplevied; and upon like condition each magistrate shall issue execution forthwith for fines and costs assessed by him.

Source:G.S.1873, c. 58, § 525, p. 838; R.S.1913, § 9195; C.S.1922, § 10202; C.S.1929, § 29-2408; R.S.1943, § 29-2408.


Annotations

29-2409. Replevy of fine and costs; recognizance; breach; effect.

It shall be lawful for any person or persons convicted of any criminal offense to replevy the judgment for the fine and costs, or the costs only when no fine shall be imposed, by such convicted person or persons, with one or more good and sufficient freeholders, entering into a recognizance before the court or magistrate, to the people of this state, for the payment of such fine and costs, or costs only, within five months from the date of the acknowledgment; which recognizance so taken is hereby declared valid in law, and to create a lien on the real estate of all such persons as shall acknowledge the same. Upon the breach thereof, execution shall be issued against the goods and chattels, lands and tenements of the persons who entered into the recognizance, in the same manner as if it had been a judgment, which execution shall be collected in the same manner as is prescribed in section 29-2408. No scire facias shall be necessary previous to issuing such execution.

Source:G.S.1873, c. 58, § 526, p. 838; R.S.1913, § 9196; C.S.1922, § 10203; C.S.1929, § 29-2409; R.S.1943, § 29-2409.


29-2410. Replevy of fine and costs; effect.

In all cases where the person or persons, convicted as aforesaid, shall replevy the fine and costs, as is provided in the section 29-2409, no execution shall issue for such fine and costs as prescribed in the section 29-2408, and further, such person or persons, after replevying the fine and costs as aforesaid, shall not be imprisoned for such fine and costs, but such person or persons shall be wholly discharged from any imprisonment in consequence of any conviction, unless where imprisonment is by this code made a part of the punishment. In that case such convicted person or persons shall be discharged from his, her or their imprisonment at the expiration thereof, if he, she or they have replevied the fine and costs as aforesaid.

Source:G.S.1873, c. 58, § 527, p. 838; R.S.1913, § 9197; C.S.1922, § 10204; C.S.1929, § 29-2410; R.S.1943, § 29-2410.


29-2411. Judgments for fines, costs, and forfeited recognizances; execution in other counties.

Executions for fines and costs of prosecution, and on recognizances taken in pursuance of section 29-2409, may be issued into any county in this state.

Source:G.S.1873, c. 58, § 527, p. 838; R.S.1913, § 9198; C.S.1922, § 10205; C.S.1929, § 29-2411; R.S.1943, § 29-2411.


29-2412. Fine and costs; financial ability to pay; hearing; nonpayment; commutation upon confinement; credit; amount.

(1) Beginning July 1, 2019:

(a) Any person arrested and brought into custody on a warrant for failure to pay fines or costs, for failure to appear before a court or magistrate on the due date of such fines or costs, or for failure to comply with the terms of an order pursuant to sections 29-2206 and 29-2206.01, shall be entitled to a hearing on the first regularly scheduled court date following the date of arrest. The purpose of such hearing shall be to determine the person's financial ability to pay such fines or costs. At the hearing, the person shall have the opportunity to present information as to his or her income, assets, debts, or other matters affecting his or her financial ability to pay. Following the hearing, the court or magistrate shall determine the person's ability to pay the fines or costs, including his or her financial ability to pay by installment payments as described in section 29-2206;

(b) If the court or magistrate determines that the person is financially able to pay the fines or costs and the person refuses to pay, the court or magistrate may:

(i) Order the person to be confined in the jail of the proper county until the fines or costs are paid or secured to be paid or the person is otherwise discharged pursuant to subsection (4) of this section; or

(ii) Enter an order pursuant to subdivision (1)(d) of this section discharging the person of such fines or costs and order the person to complete community service for a specified number of hours pursuant to sections 29-2277 to 29-2279;

(c) If the court or magistrate determines that the person is financially unable to pay the fines or costs, the court or magistrate:

(i) Shall either:

(A) Enter an order pursuant to subdivision (1)(d) of this section discharging the person of such fines or costs; or

(B) If the person is subject to an order to pay installments pursuant to section 29-2206, the court or magistrate shall either enter an order pursuant to subdivision (1)(d) of this section discharging the person of such obligation or make any necessary modifications to the order specifying the terms of the installment payments as justice may require and that will enable the person to pay the fines or costs; and

(ii) May order the person to complete community service for a specified number of hours pursuant to sections 29-2277 to 29-2279; and

(d) An order discharging the person of fines or costs shall be set forth in or accompanied by a judgment entry. Such order shall operate as a complete release of such fines or costs.

(2) Whenever it is made satisfactorily to appear to the district court, or to the county judge of the proper county, after all legal means have been exhausted, that any person who is confined in jail for any fines or costs of prosecution for any criminal offense has no estate with which to pay such fines or costs, it shall be the duty of such court or judge, on his or her own motion or upon the motion of the person so confined, to discharge such person from further imprisonment for such fines or costs, which discharge shall operate as a complete release of such fines or costs.

(3) Nothing in this section shall authorize any person to be discharged from imprisonment before the expiration of the time for which he or she may be sentenced to be imprisoned as part of his or her punishment.

(4)(a) Any person held in custody for nonpayment of fines or costs or for default on an installment shall be entitled to a credit on the fines, costs, or installment of one hundred fifty dollars for each day so held.

(b) In no case shall a person held in custody for nonpayment of fines or costs be held in such custody for more days than the maximum number to which he or she could have been sentenced if the penalty set by law includes the possibility of confinement.

Source:G.S.1873, c. 58, § 528, p. 838; R.S.1913, § 9199; C.S.1922, § 10206; C.S.1929, § 29-2412; R.S.1943, § 29-2412; Laws 1959, c. 122, § 2, p. 455; Laws 1979, LB 111, § 2;    Laws 1986, LB 528, § 5;    Laws 1988, LB 370, § 7;    Laws 2010, LB712, § 17;    Laws 2017, LB259, § 11.    


Annotations

29-2413. Judgments for fines and costs; execution in another county or against real estate; filing of transcript in district court.

In every case, whenever it is desirable to obtain execution to be issued to another county, or against the lands or real estate of any person against whom a judgment for fine or costs has been rendered by a magistrate, the magistrate may file with the clerk of the district court of the county wherein such magistrate holds office a transcript of the judgment, whereupon such clerk shall enter the cause upon the register of actions and shall file with the clerk of such court a praecipe and execution to be forthwith issued thereon by such clerk and served in all respects as though the judgment had been rendered in the district court of such county.

Source:G.S.1873, c. 58, § 529, p. 839; R.S.1913, § 9200; C.S.1922, § 10207; C.S.1929, § 29-2413; R.S.1943, § 29-2413; Laws 2018, LB193, § 61.    


29-2414. Sentence to hard labor; employment of convicts in jail.

For the purpose of enabling the county board of any county in this state to employ in a profitable manner all persons who have heretofore been or may hereafter be sentenced to hard labor in the jail of the county, the board, or a majority of them, shall have power to designate the place where the persons so sentenced shall work, and to make all proper and needful regulations and provisions for the profitable employment of such convicts, and for their safe custody during such employment. The county jail is hereby declared to extend to any stone quarry, road or other place that shall be designated by the county board for the employment of such convicts.

Source:G.S.1873, c. 58, § 531, p. 839; R.S.1913, § 9202; C.S.1922, § 10209; C.S.1929, § 29-2414; R.S.1943, § 29-2414.


29-2415. Jail convict labor; disposition of proceeds.

It shall be the duty of the county board to make the contracts for the employment of convicts as specified in section 29-2414, and the sheriff of the county, or such other person as may be charged with the administrative direction of the jail, shall collect the proceeds of all such labor, and after paying the board of such convicts and the expenses incident to such labor, to pay the balance to the county treasurer within ten days.

Source:G.S.1873, c. 58, § 532, p. 839; R.S.1913, § 9202; C.S.1922, § 10209; C.S.1929, § 29-2415; R.S.1943, § 29-2415; Laws 1984, LB 394, § 8.    


29-2501. Omitted.
Source:Laws 2015, LB268, § 22;    Referendum 2016, No. 426.

Note: Section 29-2501, newly enacted by Laws 2015, LB 268, section 22, and assigned by the Revisor of Statutes to section 29-2501, has been omitted because of the vote on the referendum at the November 2016 general election.


29-2502. Omitted.
Source:Laws 2015, LB268, § 23;    Referendum 2016, No. 426.

Note: Section 29-2502, newly enacted by Laws 2015, LB 268, section 23, and assigned by the Revisor of Statutes to section 29-2502, has been omitted because of the vote on the referendum at the November 2016 general election.


29-2503. Repealed. Laws 1973, LB 146, § 6.

29-2504. Repealed. Laws 1973, LB 146, § 6.

29-2505. Repealed. Laws 1973, LB 146, § 6.

29-2506. Repealed. Laws 1973, LB 146, § 6.

29-2507. Repealed. Laws 1973, LB 146, § 6.

29-2508. Repealed. Laws 1973, LB 146, § 6.

29-2509. Repealed. Laws 1973, LB 146, § 6.

29-2510. Repealed. Laws 1973, LB 146, § 6.

29-2511. Repealed. Laws 1973, LB 146, § 6.

29-2512. Repealed. Laws 1973, LB 146, § 6.

29-2513. Repealed. Laws 1973, LB 146, § 6.

29-2514. Repealed. Laws 1973, LB 146, § 6.

29-2514.01. Repealed. Laws 1973, LB 146, § 6.

29-2515. Repealed. Laws 1973, LB 146, § 6.

29-2516. Repealed. Laws 1973, LB 146, § 6.

29-2517. Repealed. Laws 1973, LB 146, § 6.

29-2518. Repealed. Laws 1973, LB 146, § 6.

29-2519. Statement of intent.

(1) The Legislature hereby finds that it is reasonable and necessary to establish mandatory standards for the imposition of the sentence of death; that the imposition of the death penalty in every instance of the commission of the crimes specified in section 28-303 fails to allow for mitigating factors which may dictate against the penalty of death; and that the rational imposition of the death sentence requires the establishment of specific legislative guidelines to be applied in individual cases by the court. The Legislature therefor determines that the death penalty should be imposed only for the crimes set forth in section 28-303 and, in addition, that it shall only be imposed in those instances when the aggravating circumstances existing in connection with the crime outweigh the mitigating circumstances, as set forth in sections 29-2520 to 29-2524.

(2) The Legislature hereby finds and declares that:

(a) The decision of the United States Supreme Court in Ring v. Arizona (2002) requires that Nebraska revise its sentencing process in order to ensure that rights of persons accused of murder in the first degree, as required under the Sixth and Fourteenth Amendments of the United States Constitution, are protected;

(b) The changes made by Laws 2002, LB 1, Ninety-seventh Legislature, Third Special Session, are intended to be procedural only in nature and ameliorative of the state's prior procedures for determination of aggravating circumstances in the sentencing process for murder in the first degree;

(c) The changes made by Laws 2002, LB 1, Ninety-seventh Legislature, Third Special Session, are not intended to alter the substantive provisions of sections 28-303 and 29-2520 to 29-2524;

(d) The aggravating circumstances defined in section 29-2523 have been determined by the United States Supreme Court to be "functional equivalents of elements of a greater offense" for purposes of the defendant's Sixth Amendment right, as applied to the states under the Fourteenth Amendment, to a jury determination of such aggravating circumstances, but the aggravating circumstances are not intended to constitute elements of the crime generally unless subsequently so required by the state or federal constitution; and

(e) To the extent that such can be applied in accordance with state and federal constitutional requirements, it is the intent of the Legislature that the changes to the murder in the first degree sentencing process made by Laws 2002, LB 1, Ninety-seventh Legislature, Third Special Session, shall apply to any murder in the first degree sentencing proceeding commencing on or after November 23, 2002.

Source:Laws 1973, LB 268, § 1;    Laws 1978, LB 748, § 21;    Laws 2002, Third Spec. Sess., LB 1, § 10;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2519 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Annotations

29-2520. Aggravation hearing; procedure.

(1) Whenever any person is found guilty of a violation of section 28-303 and the information contains a notice of aggravation as provided in section 29-1603, the district court shall, as soon as practicable, fix a date for an aggravation hearing to determine the alleged aggravating circumstances. If no notice of aggravation has been filed, the district court shall enter a sentence of life imprisonment.

(2) Unless the defendant waives his or her right to a jury determination of the alleged aggravating circumstances, such determination shall be made by:

(a) The jury which determined the defendant's guilt; or

(b) A jury impaneled for purposes of the determination of the alleged aggravating circumstances if:

(i) The defendant waived his or her right to a jury at the trial of guilt and either was convicted before a judge or was convicted on a plea of guilty or nolo contendere; or

(ii) The jury which determined the defendant's guilt has been discharged.

A jury required by subdivision (2)(b) of this section shall be impaneled in the manner provided in sections 29-2004 to 29-2010.

(3) The defendant may waive his or her right to a jury determination of the alleged aggravating circumstances. The court shall accept the waiver after determining that it is made freely, voluntarily, and knowingly. If the defendant waives his or her right to a jury determination of the alleged aggravating circumstances, such determination shall be made by a panel of judges as a part of the sentencing determination proceeding as provided in section 29-2521.

(4)(a) At an aggravation hearing before a jury for the determination of the alleged aggravating circumstances, the state may present evidence as to the existence of the aggravating circumstances alleged in the information. The Nebraska Evidence Rules shall apply at the aggravation hearing.

(b) Alternate jurors who would otherwise be discharged upon final submission of the cause to the jury shall be retained during the deliberation of the defendant's guilt but shall not participate in such deliberations. Such alternate jurors shall serve during the aggravation hearing as provided in section 29-2004 but shall not participate in the jury's deliberations under this subsection.

(c) If the jury serving at the aggravation hearing is the jury which determined the defendant's guilt, the jury may consider evidence received at the trial of guilt for purposes of reaching its verdict as to the existence or nonexistence of aggravating circumstances in addition to the evidence received at the aggravation hearing.

(d) After the presentation and receipt of evidence at the aggravation hearing, the state and the defendant or his or her counsel may present arguments before the jury as to the existence or nonexistence of the alleged aggravating circumstances.

(e) The court shall instruct the members of the jury as to their duty as jurors, the definitions of the aggravating circumstances alleged in the information, and the state's burden to prove the existence of each aggravating circumstance alleged in the information beyond a reasonable doubt.

(f) The jury at the aggravation hearing shall deliberate and return a verdict as to the existence or nonexistence of each alleged aggravating circumstance. Each aggravating circumstance shall be proved beyond a reasonable doubt. Each verdict with respect to each alleged aggravating circumstance shall be unanimous. If the jury is unable to reach a unanimous verdict with respect to an aggravating circumstance, such aggravating circumstance shall not be weighed in the sentencing determination proceeding as provided in section 29-2521.

(g) Upon rendering its verdict as to the determination of the aggravating circumstances, the jury shall be discharged.

(h) If no aggravating circumstance is found to exist, the court shall enter a sentence of life imprisonment. If one or more aggravating circumstances are found to exist, the court shall convene a panel of three judges to hold a hearing to receive evidence of mitigation and sentence excessiveness or disproportionality as provided in subsection (3) of section 29-2521.

Source:Laws 1973, LB 268, § 5;    Laws 1978, LB 748, § 22;    Laws 2002, Third Spec. Sess., LB 1, § 11;    Laws 2011, LB12, § 3;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2520 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Cross References

Annotations

29-2521. Sentencing determination proceeding.

(1) When a person has been found guilty of murder in the first degree and (a) a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520 or (b)(i) the information contains a notice of aggravation as provided in section 29-1603 and (ii) such person waives his or her right to a jury determination of the alleged aggravating circumstances, the sentence of such person shall be determined by:

(a) A panel of three judges, including the judge who presided at the trial of guilt or who accepted the plea and two additional active district court judges named at random by the Chief Justice of the Supreme Court. The judge who presided at the trial of guilt or who accepted the plea shall act as the presiding judge for the sentencing determination proceeding under this section; or

(b) If the Chief Justice of the Supreme Court has determined that the judge who presided at the trial of guilt or who accepted the plea is disabled or disqualified after receiving a suggestion of such disability or disqualification from the clerk of the court in which the finding of guilty was entered, a panel of three active district court judges named at random by the Chief Justice of the Supreme Court. The Chief Justice of the Supreme Court shall name one member of the panel at random to act as the presiding judge for the sentencing determination proceeding under this section.

(2) In the sentencing determination proceeding before a panel of judges when the right to a jury determination of the alleged aggravating circumstances has been waived, the panel shall, as soon as practicable after receipt of the written report resulting from the presentence investigation ordered as provided in section 29-2261, hold a hearing. At such hearing, evidence may be presented as to any matter that the presiding judge deems relevant to sentence and shall include matters relating to the aggravating circumstances alleged in the information, to any of the mitigating circumstances set forth in section 29-2523, and to sentence excessiveness or disproportionality. The Nebraska Evidence Rules shall apply to evidence relating to aggravating circumstances. Each aggravating circumstance shall be proved beyond a reasonable doubt. Any evidence at the sentencing determination proceeding which the presiding judge deems to have probative value may be received. The state and the defendant or his or her counsel shall be permitted to present argument for or against sentence of death. The presiding judge shall set forth the general order of procedure at the outset of the sentencing determination proceeding. The panel shall make written findings of fact based upon the trial of guilt and the sentencing determination proceeding, identifying which, if any, of the alleged aggravating circumstances have been proven to exist beyond a reasonable doubt. Each finding of fact with respect to each alleged aggravating circumstance shall be unanimous. If the panel is unable to reach a unanimous finding of fact with respect to an aggravating circumstance, such aggravating circumstance shall not be weighed in the sentencing determination proceeding. After the presentation and receipt of evidence and argument, the panel shall determine an appropriate sentence as provided in section 29-2522.

(3) When a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520, the panel of judges shall, as soon as practicable after receipt of the written report resulting from the presentence investigation ordered as provided in section 29-2261, hold a hearing to receive evidence of mitigation and sentence excessiveness or disproportionality. Evidence may be presented as to any matter that the presiding judge deems relevant to (a) mitigation, including, but not limited to, the mitigating circumstances set forth in section 29-2523, and (b) sentence excessiveness or disproportionality as provided in subdivision (3) of section 29-2522. Any such evidence which the presiding judge deems to have probative value may be received. The state and the defendant and his or her counsel shall be permitted to present argument for or against sentence of death. The presiding judge shall set forth the general order of procedure at the outset of the sentencing determination proceeding. After the presentation and receipt of evidence and argument, the panel shall determine an appropriate sentence as provided in section 29-2522.

Source:Laws 1973, LB 268, § 6;    Laws 2002, Third Spec. Sess., LB 1, § 12;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2521 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Cross References

Annotations

29-2521.01. Legislative findings.

The Legislature hereby finds that:

(1) Life is the most valuable possession of a human being, and before taking it, the state should apply and follow the most scrupulous standards of fairness and uniformity;

(2) The death penalty, because of its enormity and finality, should never be imposed arbitrarily nor as a result of local prejudice or public hysteria;

(3) State law should be applied uniformly throughout the state and since the death penalty is a statewide law an offense which would not result in a death sentence in one portion of the state should not result in death in a different portion;

(4) Charges resulting from the same or similar circumstances have, in the past, not been uniform and have produced radically differing results; and

(5) In order to compensate for the lack of uniformity in charges which are filed as a result of similar circumstances it is necessary for the Supreme Court to review and analyze all criminal homicides committed under the existing law in order to insure that each case produces a result similar to that arrived at in other cases with the same or similar circumstances.

Source:Laws 1978, LB 711, § 1;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2521.01 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Annotations

29-2521.02. Criminal homicide cases; review and analysis by Supreme Court; manner.

The Supreme Court shall within a reasonable time after July 22, 1978, review and analyze all cases involving criminal homicide committed on or after April 20, 1973. Such review and analysis shall examine (1) the facts including mitigating and aggravating circumstances, (2) the charges filed, (3) the crime for which defendant was convicted, and (4) the sentence imposed. Such review shall be updated as new criminal homicide cases occur.

Source:Laws 1978, LB 711, § 2;    Laws 2000, LB 1008, § 2;    Laws 2011, LB390, § 5;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2521.02 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Annotations

29-2521.03. Criminal homicide cases; appeal; sentence; Supreme Court review.

The Supreme Court shall, upon appeal, determine the propriety of the sentence in each case involving a criminal homicide by comparing such case with previous cases involving the same or similar circumstances. No sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances. The Supreme Court may reduce any sentence which it finds not to be consistent with sections 29-2521.01 to 29-2521.04, 29-2522, and 29-2524.

Source:Laws 1978, LB 711, § 3;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2521.03 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Annotations

29-2521.04. Criminal homicide cases; Supreme Court review and analyze; district court; provide records.

Each district court shall provide all records required by the Supreme Court in order to conduct its review and analysis pursuant to sections 29-2521.01 to 29-2522 and 29-2524.

Source:Laws 1978, LB 711, § 4;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2521.04 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Annotations

29-2521.05. Aggravating circumstances; interlocutory appeal prohibited.

The verdict of a jury as to the existence or nonexistence of the alleged aggravating circumstances or, when the right to a jury determination of the alleged aggravating circumstances has been waived, the determination of a panel of judges with respect thereto, shall not be an appealable order or judgment of the district court, and no appeal may be taken directly from such verdict or determination.

Source:Laws 2002, Third Spec. Sess., LB 1, § 13;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2521.05 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2522. Sentence; considerations; determination; contents.

The panel of judges for the sentencing determination proceeding shall either unanimously fix the sentence at death or, if the sentence of death was not unanimously agreed upon by the panel, fix the sentence at life imprisonment. Such sentence determination shall be based upon the following considerations:

(1) Whether the aggravating circumstances as determined to exist justify imposition of a sentence of death;

(2) Whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances; or

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

In each case, the determination of the panel of judges shall be in writing and refer to the aggravating and mitigating circumstances weighed in the determination of the panel.

If an order is entered sentencing the defendant to death, a date for execution shall not be fixed until after the conclusion of the appeal provided for by section 29-2525.

Source:Laws 1973, LB 268, § 7;    Laws 1978, LB 711, § 5;    Laws 1982, LB 722, § 10; Laws 2002, Third Spec. Sess., LB 1 § 14;    Laws 2011, LB12, § 4;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2522 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Annotations

29-2523. Aggravating and mitigating circumstances.

The aggravating and mitigating circumstances referred to in sections 29-2519 to 29-2524 shall be as follows:

(1) Aggravating Circumstances:

(a) The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial prior history of serious assaultive or terrorizing criminal activity;

(b) The murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of such crime;

(c) The murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant;

(d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence;

(e) At the time the murder was committed, the offender also committed another murder;

(f) The offender knowingly created a great risk of death to at least several persons;

(g) The victim was a public servant having lawful custody of the offender or another in the lawful performance of his or her official duties and the offender knew or should have known that the victim was a public servant performing his or her official duties;

(h) The murder was committed knowingly to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws; or

(i) The victim was a law enforcement officer engaged in the lawful performance of his or her official duties as a law enforcement officer and the offender knew or reasonably should have known that the victim was a law enforcement officer.

(2) Mitigating Circumstances:

(a) The offender has no significant history of prior criminal activity;

(b) The offender acted under unusual pressures or influences or under the domination of another person;

(c) The crime was committed while the offender was under the influence of extreme mental or emotional disturbance;

(d) The age of the defendant at the time of the crime;

(e) The offender was an accomplice in the crime committed by another person and his or her participation was relatively minor;

(f) The victim was a participant in the defendant's conduct or consented to the act; or

(g) At the time of the crime, the capacity of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental illness, mental defect, or intoxication.

Source:Laws 1973, LB 268, § 8;    Laws 1998, LB 422, § 1;    Laws 2002, Third Spec. Sess., LB 1, § 15;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2523 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Annotations

29-2524. Sections; how construed.

Nothing in sections 25-1140.09, 28-303, 28-313, and 29-2519 to 29-2546 shall be in any way deemed to repeal or limit existing procedures for automatic review of capital cases, nor shall they in any way limit the right of the Supreme Court to reduce a sentence of death to a sentence of life imprisonment in accordance with the provisions of section 29-2308, nor shall they limit the right of the Board of Pardons to commute any sentence of death to a sentence of life imprisonment.

Source:Laws 1973, LB 268, § 9;    Laws 1978, LB 748, § 23;    Laws 1978, LB 711, § 6;    Laws 2002, Third Spec. Sess., LB 1 § 16;    Laws 2011, LB12, § 5;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2524 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Cross References

Annotations

29-2524.01. Criminal homicide; report filed by county attorney; contents; time of filing.

Each county attorney shall file a report with the State Court Administrator for each criminal homicide case filed by him. The report shall include (1) the initial charge filed, (2) any reduction in the initial charge and whether such reduction was the result of a plea bargain or some other reason, (3) dismissals prior to trial, (4) outcome of the trial including not guilty, guilty as charged, guilty of a lesser included offense, or dismissal, (5) the sentence imposed, (6) whether an appeal was taken, and (7) such other information as may be required by the State Court Administrator. Such report shall be filed not later than thirty days after ultimate disposition of the case by the court.

Source:Laws 1978, LB 749, § 1;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2524.01 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2524.02. State Court Administrator; criminal homicide report; provide forms.

The State Court Administrator shall provide all forms necessary to carry out sections 29-2524.01 and 29-2524.02.

Source:Laws 1978, LB 749, § 2;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2524.02 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2525. Capital punishment cases; appeal; procedure; expedited opinion.

In cases when the punishment is capital, no notice of appeal shall be required and within the time prescribed by section 25-1912 for the commencement of proceedings for the reversing, vacating, or modifying of judgments, the clerk of the district court in which the conviction was had shall notify the court reporter who shall prepare a bill of exceptions as in other cases and the clerk shall prepare and file with the Clerk of the Supreme Court a transcript of the record of the proceedings, for which no charge shall be made. The Clerk of the Supreme Court shall, upon receipt of the transcript, docket the appeal. No payment of a docket fee shall be required.

The Supreme Court shall expedite the rendering of its opinion on the appeal, giving the matter priority over civil and noncapital criminal matters.

Source:Laws 1973, LB 268, § 10;    Laws 1982, LB 722, § 11; Laws 1995, LB 371, § 16;    Laws 2000, LB 921, § 32;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2525 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Cross References

Annotations

29-2526. Repealed. Laws 1982, LB 722, § 13.

29-2527. Briefs; payment for printing by county.

The cost of printing briefs on behalf of any person convicted of an offense for which the punishment adjudged is capital shall be paid by the county.

Source:Laws 1973, LB 268, § 12;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2527 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2528. Death penalty cases; Supreme Court; orders.

In all cases when the death penalty has been imposed by the district court, the Supreme Court shall, after consideration of the appeal, order the prisoner to be discharged, a new trial to be had, or appoint a day certain for the execution of the sentence.

Source:Laws 1973, LB 268, § 13;    Laws 1982, LB 722, § 12; Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2528 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2529. Repealed. Laws 1985, LB 41, § l.

29-2530. Repealed. Laws 1985, LB 41, § l.

29-2531. Repealed. Laws 1985, LB 41, § l.

29-2532. Transferred to section 83-964.

29-2533. Transferred to section 83-969.

29-2534. Transferred to section 83-970.

29-2535. Transferred to section 83-971.

29-2536. Transferred to section 83-972.

29-2537. Convicted person; appears to be incompetent; notice to judge; suspend sentence; commission appointed; findings; suspension of execution; when; annual review.

(1) If any convicted person under sentence of death shall appear to be incompetent, the Director of Correctional Services shall forthwith give notice thereof to a judge of the district court of the judicial district in which the convicted person was tried and sentenced and such judge shall at once make such investigation as shall satisfy him or her as to whether a commission ought to be named to examine such convicted person.

(2) If the court determines that there is not sufficient reason for the appointment of a commission, the court shall so find and refuse to suspend the execution of the convicted person. If the court determines that a commission ought to be appointed to examine such convicted person, the court shall make a finding to that effect and cause it to be entered upon the records of the district court in the county in which such convicted person was sentenced, and, if necessary, the court shall suspend the execution and appoint three licensed mental health professionals employed by the state as a commission to examine such convicted person. The commission shall examine the convicted person to determine whether he or she is competent or incompetent and shall report its findings in writing to the court within ten days after its appointment. If two members of the commission find the convicted person incompetent, the court shall suspend the convicted person's execution until further order. Thereafter, the court shall appoint a commission annually to review the convicted person's competency. The results of such review shall be provided to the court. If the convicted person is subsequently found to be competent by two members of the commission, the court shall certify that finding to the Supreme Court which shall then establish a date for the enforcement of the convicted person's sentence.

(3) The standard for the determination of competency under this section shall be the same as the standard for determining competency to stand trial.

Source:Laws 1973, LB 268, § 22;    Laws 1986, LB 1177, § 8;    Laws 2009, LB36, § 1;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2537 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2538. Suspension of execution pending investigation; convict found competent; Supreme Court; appoint a day of execution.

If a court has suspended the execution of the convicted person pending an investigation as to his or her competency, the date for the enforcement of the convicted person's sentence has passed, and the convicted person is found to be competent, the court shall certify that finding to the Supreme Court which shall appoint a day for the enforcement of the convicted person's sentence.

Source:Laws 1973, LB 268, § 23;    Laws 2009, LB36, § 2;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2538 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2539. Commission members; mileage; payment.

The members of the commission appointed pursuant to section 29-2537 shall each receive mileage at the rate authorized in section 81-1176 for state employees for each mile actually and necessarily traveled in reaching and returning from the place where the convicted person is confined and examined, and it is hereby made the duty of the commission to act in this capacity without compensation other than that already provided for them by law. All of the findings and orders aforesaid shall be entered in the district court records of the county wherein the convicted person was originally tried and sentenced, and the costs therefor, including those providing for the mileage of the members of the commission, shall be allowed and paid in the usual manner by the county in which the convicted person was tried and sentenced to death.

Source:Laws 1973, LB 268, § 24;    Laws 1981, LB 204, § 44;    Laws 2009, LB36, § 3;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2539 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2540. Female convicted person; pregnant; notice to judge; procedures.

If a female convicted person under sentence of death shall appear to be pregnant, the Director of Correctional Services shall in like manner notify the judge of the district court of the county in which she was sentenced, who shall in all things proceed as in the case of an incompetent convicted person.

Source:Laws 1973, LB 268, § 25;    Laws 1986, LB 1177, § 9;    Laws 2009, LB36, § 4;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2540 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Cross References

29-2541. Female convicted person; finding convicted person is pregnant; judge; duties; costs.

If the commission appointed pursuant to section 29-2537 finds that the female convicted person is pregnant, the court shall suspend the execution of her sentence. At such time as it shall be determined that such woman is no longer pregnant, the judge shall appoint a date for her execution and issue a warrant directing the enforcement of the sentence of death which shall be delivered to the Director of Correctional Services. The costs and expenses thereof shall be the same as those provided for in the case of an incompetent convicted person and shall be paid in the same manner.

Source:Laws 1973, LB 268, § 26;    Laws 1986, LB 1177, § 10;    Laws 2009, LB36, § 5;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2541 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2542. Escaped convict; return; notify Supreme Court; fix date of execution.

If any person who has been convicted of a crime punishable by death, and sentenced to death, shall escape, and shall not be retaken before the time fixed for his or her execution, it shall be lawful for the Director of Correctional Services, or any sheriff or other officer or person, to rearrest such person and return him or her to the custody of the director, who shall thereupon notify the Supreme Court that such person has been returned to custody. Upon receipt of that notice, the Supreme Court shall then issue a warrant, fixing a date for the enforcement of the sentence which shall be delivered to the director. The date of execution shall be set no later than sixty days following the issuance of the warrant.

Source:Laws 1973, LB 268, § 27;    Laws 2009, LB36, § 6;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2542 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2543. Person convicted of crime sentenced to death; Supreme Court; warrant.

(1) Whenever any person has been tried and convicted before any district court in this state, has been sentenced to death, and has had his or her sentence of death affirmed by the Supreme Court on mandatory direct review, it shall be the duty of the Supreme Court to issue a warrant, under the seal of the court, reciting therein the conviction and sentence and establishing a date for the enforcement of the sentence directed to the Director of Correctional Services, commanding him or her to proceed at the time named in the warrant. The date of execution shall be set no later than sixty days following the issuance of the warrant.

(2) Thereafter, if the initial execution date has been stayed and the original execution date has expired, the Supreme Court shall establish a new date for enforcement of the sentence upon receipt of notice from the Attorney General that the stay of execution is no longer in effect and issue its warrant to the director. The date of execution shall be set no later than sixty days following the issuance of the warrant.

Source:Laws 1973, LB 268, § 28;    Laws 1993, LB 31, § 12;    Laws 2009, LB36, § 7;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2543 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


Annotations

29-2544. Repealed. Laws 2009, LB 36, § 21.

29-2545. Repealed. Laws 2009, LB 36, § 21.

29-2546. Reversal of judgment of conviction; delivery of convicted person to custody of sheriff; await further judgment and order of court.

Whenever the Supreme Court reverses the judgment of conviction in accordance with which any convicted person has been sentenced to death and is confined in a Department of Correctional Services adult correctional facility as herein provided, it shall be the duty of the Director of Correctional Services, upon receipt of a copy of such judgment of reversal, duly certified by the clerk of the court and under the seal thereof, to forthwith deliver such convicted person into the custody of the sheriff of the county in which the conviction was had to be held in the jail of the county awaiting the further judgment and order of the court in the case.

Source:Laws 1973, LB 268, § 31;    Laws 1993, LB 31, § 13;    Laws 2009, LB36, § 8;    Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2546 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2601. Repealed. Laws 1969, c. 817, § 87.

29-2602. Repealed. Laws 1969, c. 817, § 87.

29-2603. Repealed. Laws 1969, c. 817, § 87.

29-2604. Repealed. Laws 1969, c. 817, § 87.

29-2605. Repealed. Laws 1969, c. 817, § 87.

29-2606. Repealed. Laws 1969, c. 817, § 87.

29-2607. Repealed. Laws 1969, c. 817, § 87.

29-2608. Repealed. Laws 1969, c. 817, § 87.

29-2609. Repealed. Laws 1969, c. 817, § 87.

29-2610. Repealed. Laws 1969, c. 817, § 87.

29-2611. Repealed. Laws 1969, c. 817, § 87.

29-2612. Repealed. Laws 1969, c. 817, § 87.

29-2613. Repealed. Laws 1969, c. 817, § 87.

29-2614. Repealed. Laws 1969, c. 817, § 87.

29-2615. Repealed. Laws 1969, c. 817, § 87.

29-2616. Repealed. Laws 1969, c. 817, § 87.

29-2617. Repealed. Laws 1969, c. 817, § 87.

29-2618. Repealed. Laws 1969, c. 817, § 87.

29-2619. Repealed. Laws 1969, c. 817, § 87.

29-2620. Repealed. Laws 1969, c. 817, § 87.

29-2621. Repealed. Laws 1969, c. 817, § 87.

29-2622. Repealed. Laws 1969, c. 817, § 87.

29-2623. Repealed. Laws 1969, c. 817, § 87.

29-2624. Repealed. Laws 1969, c. 817, § 87.

29-2625. Repealed. Laws 1969, c. 817, § 87.

29-2626. Repealed. Laws 1969, c. 817, § 87.

29-2627. Repealed. Laws 1959, c. 445, § 2.

29-2628. Repealed. Laws 1969, c. 817, § 87.

29-2629. Repealed. Laws 1969, c. 817, § 87.

29-2630. Repealed. Laws 1969, c. 817, § 87.

29-2631. Repealed. Laws 1969, c. 817, § 87.

29-2632. Repealed. Laws 1969, c. 817, § 87.

29-2633. Repealed. Laws 1969, c. 817, § 87.

29-2633.01. Repealed. Laws 1969, c. 817, § 87.

29-2634. Repealed. Laws 1969, c. 817, § 87.

29-2635. Repealed. Laws 1969, c. 817, § 87.

29-2636. Repealed. Laws 1969, c. 817, § 87.

29-2637. Repealed. Laws 2003, LB 46, § 55.


Note: Laws 2003, LB 46, section 51, provided this section became operative "when thirty-five states have adopted the Interstate Compact for Adult Offender Supervision". By June 2002, the compact had reached this threshold. (See www.interstatecompact.org.) LB 46 became effective May 24, 2003.


29-2638. Repealed. Laws 2003, LB 46, § 55.


Note: Laws 2003, LB 46, section 51, provided this section became operative "when thirty-five states have adopted the Interstate Compact for Adult Offender Supervision". By June 2002, the compact had reached this threshold. (See www.interstatecompact.org.) LB 46 became effective May 24, 2003.


29-2639. Compact, how cited.

Sections 29-2639 and 29-2640 shall be known and may be cited as the Interstate Compact for Adult Offender Supervision.

Source:Laws 2003, LB 46, § 2.    

Note: Laws 2003, LB 46, section 51, provided this section became operative "when thirty-five states have adopted the Interstate Compact for Adult Offender Supervision". By June 2002, the compact had reached this threshold. (See www.interstatecompact.org.) LB 46 became effective May 24, 2003.


29-2640. Interstate Compact for Adult Offender Supervision.

The Governor is hereby authorized and directed to execute a compact on behalf of this state with any other state or states legally joining therein in the form substantially as follows:

The compacting states solemnly agree:

ARTICLE I PURPOSE

The compacting states to this interstate compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized pursuant to the bylaws and rules of this compact to travel across state lines both to and from each compacting state in such a manner as to track the location of offenders, transfer supervision authority in an orderly and efficient manner, and when necessary return offenders to the originating jurisdictions. The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime. It is the purpose of this compact and the interstate commission created hereunder, through means of joint and cooperative action among the compacting states: To provide the framework for the promotion of public safety and protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision, and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits, and obligations of the compact among the compacting states. In addition, this compact will: Create an interstate commission which will establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, or corrections or other criminal justice agencies which will promulgate rules to achieve the purposes of this compact; ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; establish a system of uniform data collection, access to information on active cases by authorized criminal justice officials, and regular reporting of compact activities to heads of state councils, state executive, judicial, and legislative branches of government, and state criminal justice administrators; monitor compliance with rules governing interstate movement of offenders and initiate interventions to address and correct noncompliance; and coordinate training and education regarding regulation of interstate movement of offenders for officials involved in such activity. The compacting states recognize that there is no "right" of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of this compact and bylaws and rules promulgated hereunder. It is the policy of the compacting states that the activities conducted by the interstate commission created herein are the formation of public policies and are therefor public business.

ARTICLE II DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

Adult means both individuals legally classified as adults and juveniles treated as adults by court order, statute, or operation of law;

Bylaws means those bylaws established by the interstate commission for its governance or for directing or controlling the interstate commission's actions or conduct;

Compact administrator means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state's supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the interstate commission, and the policies adopted by the state council under this compact;

Compacting state means any state which has enacted the enabling legislation for this compact;

Commissioner means the voting representative of each compacting state appointed pursuant to Article III of this compact;

Interstate commission means the Interstate Commission for Adult Offender Supervision established by this compact;

Member means the commissioner of a compacting state or designee, who shall be a person officially connected with the commissioner;

Noncompacting state means any state which has not enacted the enabling legislation for this compact;

Offender means an adult placed under, or subject to, supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies;

Person means any individual, corporation, business enterprise, or other legal entity, either public or private;

Rules means acts of the interstate commission, duly promulgated pursuant to Article VIII of this compact, substantially affecting interested parties in addition to the interstate commission, which shall have the force and effect of law in the compacting states;

State means a state of the United States, the District of Columbia, and any other territorial possessions of the United States; and

State Council means the resident members of the State Council for Interstate Adult Offender Supervision created by each state under Article IV of this compact.

ARTICLE III THE COMPACT COMMISSION

The compacting states hereby create the Interstate Commission for Adult Offender Supervision. The interstate commission shall be a body corporate and joint agency of the compacting states. The interstate commission shall have all the responsibilities, powers, and duties set forth herein, including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.

The interstate commission shall consist of commissioners selected and appointed by resident members of a State Council for Interstate Adult Offender Supervision for each state. In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners but who are members of interested organizations. Such noncommissioner members shall include a member of national organizations of governors, legislators, state chief justices, attorneys general, and crime victims. All noncommissioner members of the interstate commission shall be ex officio, nonvoting members. The interstate commission may provide in its bylaws for such additional ex officio, nonvoting members as it deems necessary.

Each compacting state represented at any meeting of the interstate commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business unless a larger quorum is required by the bylaws of the interstate commission. The interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of twenty-seven or more compacting states, shall call additional meetings. Public notice shall be given of all meetings, and meetings shall be open to the public.

The interstate commission shall establish an executive committee which shall include commission officers, commission members, and others as shall be determined by the bylaws. The executive committee shall have the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rulemaking or amendment to the compact. The executive committee oversees the day-to-day activities managed by the executive director and interstate commission staff, administers enforcement and compliance with the provisions of the compact and bylaws, as directed by the interstate commission, and performs other duties as directed by the interstate commission or as set forth in the bylaws.

ARTICLE IV THE STATE COUNCIL

Each member state shall create a State Council for Interstate Adult Offender Supervision which shall be responsible for the appointment of the commissioner who shall serve on the interstate commission from that state. Each state council shall appoint as its commissioner the compact administrator from that state to serve on the interstate commission in such capacity under or pursuant to applicable law of the member state. While each member state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and compact administrators. Each compacting state retains the right to determine the qualifications of the compact administrator who shall be appointed by the state council or by the Governor in consultation with the Legislature and the judiciary. In addition to appointment of its commissioner to the interstate commission, each state council shall exercise oversight and advocacy concerning its participation in interstate commission activities and other duties as may be determined by each member state, including, but not limited to, development of policy concerning operations and procedures of the compact within that state.

ARTICLE V POWERS AND DUTIES OF

THE INTERSTATE COMMISSION

The interstate commission shall have the following powers:

To adopt a seal and suitable bylaws governing the management and operation of the interstate commission;

To promulgate rules which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact;

To oversee, supervise, and coordinate the interstate movement of offenders subject to the terms of this compact and any bylaws adopted and rules promulgated by the interstate commission;

To enforce compliance with compact provisions, interstate commission rules, and bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process;

To establish and maintain offices;

To purchase and maintain insurance and bonds;

To borrow, accept, or contract for services of personnel, including, but not limited to, members and their staffs;

To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions, including, but not limited to, an executive committee as required by Article III which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties hereunder;

To elect or appoint such officers, attorneys, employees, agents, or consultants and to fix their compensation, define their duties, and determine their qualifications and to establish the interstate commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation, and qualifications of personnel;

To accept any and all donations and grants of money, equipment, supplies, materials, and services and to receive, utilize, and dispose of same;

To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed;

To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed;

To establish a budget, make expenditures, and levy assessments as provided in Article X of this compact;

To sue and be sued;

To provide for dispute resolution among compacting states;

To perform such functions as may be necessary or appropriate to achieve the purposes of this compact;

To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission;

To coordinate education, training, and public awareness regarding the interstate movement of offenders for officials involved in such activity; and

To establish uniform standards for the reporting, collecting, and exchanging of data.

ARTICLE VI ORGANIZATION AND OPERATION OF

THE INTERSTATE COMMISSION

Section A. Bylaws

The interstate commission shall, by a majority of the members, within twelve months of the first interstate commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:

Establishing the fiscal year of the interstate commission;

Establishing an executive committee and such other committees as may be necessary;

Providing reasonable standards and procedures:

(i) For the establishment of committees; and

(ii) Governing any general or specific delegation of any authority or function of the interstate commission;

Providing reasonable procedures for calling and conducting meetings of the interstate commission and ensuring reasonable notice of each such meeting;

Establishing the titles and responsibilities of the officers of the interstate commission;

Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the interstate commission. Notwithstanding any civil service or other similar laws of any compacting state, the bylaws shall exclusively govern the personnel policies and programs of the interstate commission;

Providing a mechanism for winding up the operations of the interstate commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment or reserving of all of its debts and obligations;

Providing transition rules for startup administration of the compact; and

Establishing standards and procedures for compliance and technical assistance in carrying out the compact.

Section B. Officers and Staff

The interstate commission shall, by a majority of the members, elect from among its members a chairperson and a vice-chairperson, each of whom shall have such authorities and duties as may be specified in the bylaws. The chairperson or, in his or her absence or disability, the vice-chairperson, shall preside at all meetings of the interstate commission. The officers so elected shall serve without compensation or remuneration from the interstate commission; Provided, that subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission.

The interstate commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions, and for such compensation as the interstate commission may deem appropriate. The executive director shall serve as secretary to the interstate commission and hire and supervise such other staff as may be authorized by the interstate commission but shall not be a member.

Section C. Corporate Records of the Interstate Commission

The interstate commission shall maintain its corporate books and records in accordance with the bylaws.

Section D. Qualified Immunity, Defense, and Indemnification

The members, officers, executive director, and employees of the interstate commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property, personal injury, or other civil liability caused or arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities; Provided, that nothing in this paragraph shall be construed to protect any such person from suit or liability for any damage, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.

The interstate commission shall defend the commissioner of a compacting state, his or her representatives or employees, or the interstate commission's representatives or employees in any civil action seeking to impose liability arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities; Provided, that the actual or alleged act, error, or omission did not result from intentional wrongdoing on the part of such person.

The interstate commission shall indemnify and hold the commissioner of a compacting state, the appointed designee or employees, or the interstate commission's representatives or employees harmless in the amount of any settlement or judgement obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities; Provided, that the actual or alleged act, error, or omission did not result from gross negligence or intentional wrongdoing on the part of such person.

ARTICLE VII ACTIVITIES OF THE INTERSTATE COMMISSION

The interstate commission shall meet and take such actions as are consistent with the provisions of this compact.

Except as otherwise provided in this compact and unless a greater percentage is required by the bylaws, in order to constitute an act of the interstate commission, such act shall have been taken at a meeting of the interstate commission and shall have received an affirmative vote of a majority of the members present.

Each member of the interstate commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission. A member shall vote in person on behalf of the state and shall not delegate a vote to another member state. However, a state council shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone or other means of telecommunication or electronic communication shall be subject to the same quorum requirements of meetings where members are present in person.

The interstate commission shall meet at least once during each calendar year. The chairperson of the interstate commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.

The interstate commission's bylaws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the interstate commission may make available to law enforcement agencies records and information otherwise exempt from disclosure and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.

Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The interstate commission shall promulgate rules consistent with the principles contained in the Freedom of Information Reform Act of 1986, 5 U.S.C. section 552b, as may be amended. The interstate commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:

Relate solely to the interstate commission's internal personnel practices and procedures;

Disclose matters specifically exempted from disclosure by statute;

Disclose trade secrets or commercial or financial information which is privileged or confidential;

Involve accusing any person of a crime or formally censuring any person;

Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

Disclose investigatory records compiled for law enforcement purposes;

Disclose information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of the interstate commission with respect to a regulated entity for the purpose of regulation or supervision of such entity;

Disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity; or

Specifically relate to the interstate commission's issuance of a subpoena or its participation in a civil action or proceeding.

For every meeting closed pursuant to this provision, the interstate commission's chief legal officer shall publicly certify that, in his or her opinion, the meeting may be closed to the public and shall reference each relevant exemptive provision. The interstate commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote, reflected in the vote of each member on the question. All documents considered in connection with any action shall be identified in such minutes.

The interstate commission shall collect standardized data concerning the interstate movement of offenders as directed through its bylaws and rules which shall specify the data to be collected, the means of collection, and data exchange and reporting requirements.

ARTICLE VIII RULEMAKING FUNCTIONS OF

THE INTERSTATE COMMISSION

The interstate commission shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact, including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states.

Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the federal Administrative Procedure Act, 5 U.S.C. section 551 et seq., and the Federal Advisory Committee Act, 5 U.S.C. App. 2, section 1 et seq., as may be amended (hereinafter APA). All rules and amendments shall become binding as of the date specified in each rule or amendment.

If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.

When promulgating a rule, the interstate commission shall:

Publish the proposed rule stating with particularity the text of the rule which is proposed and the reason for the proposed rule;

Allow persons to submit written data, facts, opinions, and arguments, which information shall be publicly available;

Provide an opportunity for an informal hearing; and

Promulgate a final rule and its effective date, if appropriate, based on the rulemaking record.

Not later than sixty days after a rule is promulgated, any interested person may file a petition in the United States District Court for the District of Columbia or in the federal district court where the interstate commission's principal office is located for judicial review of such rule. If the court finds that the interstate commission's action is not supported by substantial evidence, as defined in the APA, in the rulemaking record, the court shall hold the rule unlawful and set it aside.

Subjects to be addressed within twelve months after the first meeting must at a minimum include:

Notice to victims and opportunity to be heard;

Offender registration and compliance;

Violations/returns;

Transfer procedures and forms;

Eligibility for transfer;

Collection of restitution and fees from offenders;

Data collection and reporting;

The level of supervision to be provided by the receiving state;

Transition rules governing the operation of the compact and the interstate commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact; and

Mediation, arbitration, and dispute resolution.

The existing rules governing the operation of the previous compact superseded by this act shall be null and void twelve months after the first meeting of the interstate commission created hereunder.

Upon determination by the interstate commission that an emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption; Provided, that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, in no event later than ninety days after the effective date of the rule.

ARTICLE IX OVERSIGHT, ENFORCEMENT, AND DISPUTE

RESOLUTION BY THE INTERSTATE COMMISSION

Section A. Oversight

The interstate commission shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.

The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact's purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the interstate commission, the interstate commission shall be entitled to receive all service of process in any such proceeding and shall have standing to intervene in the proceeding for all purposes.

Section B. Dispute Resolution

The compacting states shall report to the interstate commission on issues or activities of concern to them and cooperate with and support the interstate commission in the discharge of its duties and responsibilities.

The interstate commission shall attempt to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and noncompacting states.

The interstate commission shall enact a bylaw or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.

Section C. Enforcement

The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in Article XII, Section B, of this compact.

ARTICLE X FINANCE

The interstate commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.

The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff which must be in a total amount sufficient to cover the interstate commission's annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state and shall promulgate a rule binding upon all compacting states which governs such assessment.

The interstate commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same, nor shall the interstate commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.

The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant, and the report of the audit shall be included in and become part of the annual report of the interstate commission.

ARTICLE XI COMPACTING STATES, EFFECTIVE

DATE AND AMENDMENT

Any state, as defined in Article II of this compact, is eligible to become a compacting state. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than thirty-five of the states. The initial effective date shall be the later of July 1, 2001, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of nonmember states or their designees will be invited to participate in interstate commission activities on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.

Amendments to the compact may be proposed by the interstate commission for enactment by the compacting states. No amendment shall become effective and binding upon the interstate commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

ARTICLE XII WITHDRAWAL, DEFAULT, TERMINATION,

AND JUDICIAL ENFORCEMENT

Section A. Withdrawal

Once effective, the compact shall continue in force and remain binding upon each and every compacting state; Provided, that a compacting state may withdraw from the compact (withdrawing state) by enacting a statute specifically repealing the statute which enacted the compact into law.

The effective date of withdrawal is the effective date of the repeal.

The withdrawing state shall immediately notify the chairperson of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state. The interstate commission shall notify the other compacting states of the withdrawing state's intent to withdraw within sixty days of its receipt thereof.

The withdrawing state is responsible for all assessments, obligations, and liabilities incurred through the effective date of withdrawal, including any obligations the performance of which extend beyond the effective date of withdrawal.

Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission.

Section B. Default

If the interstate commission determines that any compacting state has at any time defaulted (defaulting state) in the performance of any of its obligations or responsibilities under this compact, the bylaws, or any duly promulgated rules the interstate commission may impose any or all of the following penalties:

Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the interstate commission;

Remedial training and technical assistance as directed by the interstate commission;

Suspension and termination of membership in the compact. Suspension shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted. Immediate notice of suspension shall be given by the interstate commission to the Governor, the Chief Justice or Chief Judicial Officer of the state, the majority and minority leaders of the defaulting state's legislature, and the state council.

The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, interstate commission bylaws, or duly promulgated rules. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate commission on the defaulting state pending a cure of the default. The interstate commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the interstate commission, in addition to any other penalties imposed herein, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of suspension. Within sixty days of the effective date of termination of a defaulting state, the interstate commission shall notify the Governor, the Chief Justice or Chief Judicial Officer, the majority and minority leaders of the defaulting state's legislature, and the state council of such termination.

The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination, including any obligations, the performance of which extends beyond the effective date of termination.

The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the interstate commission and the defaulting state. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules.

Section C. Judicial Enforcement

The interstate commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the interstate commission, in the federal court district where the interstate commission has its offices, to enforce compliance with the provisions of the compact or its duly promulgated rules and bylaws against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation, including reasonable attorney's fees.

Section D. Dissolution of Compact

The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one compacting state. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be wound up and any surplus funds shall be distributed in accordance with the bylaws.

ARTICLE XIII SEVERABILITY AND CONSTRUCTION

The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.

The provisions of this compact shall be liberally constructed to effectuate its purposes.

ARTICLE XIV BINDING EFFECT OF COMPACT AND OTHER LAWS

Section A. Other Laws

Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.

All compacting states' laws conflicting with this compact are superseded to the extent of the conflict.

Section B. Binding Effect of the Compact

All lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the compacting states.

All agreements between the interstate commission and the compacting states are binding in accordance with their terms.

Upon the request of a party to a conflict over meaning or interpretation of interstate commission actions, and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding such meaning or interpretation.

In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the interstate commission shall be ineffective and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this compact becomes effective.

Source:Laws 2003, LB 46, § 3.    

Note: Laws 2003, LB 46, section 51, provided this section became operative "when thirty-five states have adopted the Interstate Compact for Adult Offender Supervision". By June 2002, the compact had reached this threshold. (See www.interstatecompact.org.) LB 46 became effective May 24, 2003.


Cross References

29-2701. Fines, costs, forfeited recognizances; to whom paid.

All money due upon any judgment for fines, costs, or forfeited recognizances shall be paid to the judge or clerk of the court where the judgment is pending, if paid before execution is issued therefor, otherwise to the officer holding the execution, or such money may be paid to the sheriff of the county if the judgment debtor is in jail. Every sheriff, marshal, or other ministerial officer who shall receive any such money shall pay the same to the proper clerk of the court within ten days from the time of receiving the same.

Source:G.S.1873, c. 58, § 533, p. 840; R.S.1913, § 9237; C.S.1922, § 10266; C.S.1929, § 29-2701; R.S.1943, § 29-2701; Laws 1973, LB 226, § 18;    Laws 1988, LB 1030, § 28.    


Annotations

29-2702. Money received; disposition.

Every judge or clerk of court, upon receiving any money on account of forfeited recognizances, fines, or costs accruing or due to the county or state, shall pay the same to the treasurer of the proper county, except as may be otherwise expressly provided, within thirty days from the time of receiving the same. When any money is paid to a judge or clerk of court on account of costs due to individual persons, the same shall be paid to the persons to whom the same are due upon demand.

Source:G.S.1873, c. 58, § 534, p. 840; R.S.1913, § 9238; C.S.1922, § 10267; Laws 1927, c. 62, § 1, p. 223; C.S.1929, § 29-2702; R.S.1943, § 29-2702; Laws 1973, LB 226, § 19;    Laws 1988, LB 370, § 8;    Laws 2020, LB1028, § 6.    


Annotations

29-2703. Costs; county not liable; exception.

No costs shall be paid from the county treasury in any case of prosecution for a misdemeanor except as provided in section 29-2709.

Source:G.S.1873, c. 58, § 535, p. 840; R.S.1913, § 9239; C.S.1922, § 10268; C.S.1929, § 29-2703; R.S.1943, § 29-2703; Laws 1965, c. 125, § 2, p. 462; Laws 1973, LB 226, § 19;    Laws 1987, LB 665, § 1.    


Annotations

29-2704. Preliminary examinations for felony; transcript of costs; audit; allowance; payment.

Upon examination in county court on complaint of a felony, whether the accused is held to answer in court or discharged, the court may file with the county clerk a certified transcript of the costs as assessed under section 29-2709, giving the items of the same, and to whom each is due, and on what account. As early as may be after the filing of such bill, but without assembling for the special purpose, the county board of the proper county shall examine into such bill of costs as to its correctness, justice, and legality and may, if need be, examine under oath any person upon the subject, which oath may be administered by the county clerk.

It shall be the duty of the board to disallow any item, in whole or in part, of such bill that is found to be unlawful or needlessly incurred, or if it appears that the complaint was made for a felony when it should have been for a misdemeanor only, it may in its discretion disallow the entire bill or any part thereof.

The board may order that such bill, or so much thereof as it finds to be lawful and just, be paid from the county treasury, whereupon the county clerk shall draw warrants upon the county treasurer for the sums respectively due to each person upon such bill so allowed, which warrants the treasurer shall pay from the county general fund. The amount of costs so allowed shall be certified by the county clerk, and the certificate filed with the papers in the cause, in the office of the clerk of the district court. If the defendant shall be convicted, judgment shall be rendered against him or her for the costs so allowed, in addition to the costs made in the district court.

Source:G.S.1873, c. 58, § 536, p. 840; R.S.1913, § 9240; C.S.1922, § 10269; C.S.1929, § 29-2704; R.S.1943, § 29-2704; Laws 1973, LB 226, § 21;    Laws 1984, LB 13, § 72;    Laws 2001, LB 83, § 1.    


Annotations

29-2705. Clerk of district court; cost bill in felony cases; payment.

Upon the discharge or conviction of the defendant in any case of felony in the district court, it shall be lawful for the clerk of such court to file in the office of the county clerk a bill of the costs not previously allowed by the county board, whereupon the same shall be examined into, audited and allowed, and paid in the manner specified in section 29-2704; Provided, nothing in this section or section 29-2704 shall preclude any court or clerk, in any case, from delaying the filing of such cost bill for allowance as aforesaid, until it shall be determined whether the same will be collected from the defendant; and no cost bill shall be filed for allowance as aforesaid under the provisions of this section, while there is pending in the cause any proceeding in error, or any unexpired recognizance for replevy of the judgment.

Source:G.S.1873, c. 58, § 537, p. 841; R.S.1913, § 9241; C.S.1922, § 10270; C.S.1929, § 29-2705; R.S.1943, § 29-2705; Laws 1973, LB 226, § 22.    


Annotations

29-2706. Conviction in felony cases; fines and costs; collection from defendant; disposition of amount collected.

In any case of indictment for felony, where the defendant shall be convicted, it shall be the duty of the county attorney, clerk of the court, and sheriff of the county to use all lawful means within the scope of their respective powers, if need be, for the collection of the costs from the defendant, and the fine also, if any shall have been adjudged against him. When the costs shall have been collected, if the same shall have been allowed for payment from the county treasurer as provided in section 29-2705, it shall be the duty of the clerk of the court to certify and pay the same immediately to the county treasurer, together with any fine that may have been collected in the case.

Source:G.S.1873, c. 58, § 538, p. 841; R.S.1913, § 9242; C.S.1922, § 10271; C.S.1929, § 29-2706; R.S.1943, § 29-2706.


29-2707. Repealed. Laws 1973, LB 226, § 34.

29-2708. Receipts; to what funds credited; disbursement of costs in criminal cases.

All money arising from fines and recognizances shall be credited by the county treasurer to the county school fund except as provided by Article VII, section 5, Constitution of Nebraska, and the costs and proceeds of jail labor shall be credited to the county general fund. Whenever any costs in any criminal case are paid from the county treasury, such payment shall be made from the county general fund; and when any warrant is drawn by the county clerk upon the treasurer of the county for the payment of such costs, a true record of the same and the definite purpose of every such warrant shall be recorded in the clerk's office showing the cause in which such costs are paid.

Source:G.S.1873, c. 58, § 540, p. 842; R.S.1913, § 9244; C.S.1922, § 10273; C.S.1929, § 29-2708; R.S.1943, § 29-2708; Laws 1959, c. 125, § 1, p. 459; Laws 1988, LB 370, § 9.    


Annotations

29-2709. Uncollectible costs; certification; payment; conditions.

When any costs in misdemeanor, traffic, felony preliminary, or juvenile cases in county court, except for those costs provided for in subsection (3) of section 24-703, two dollars of the fee provided in section 33-107.01, the court automation fee provided in section 33-107.03, and the uniform data analysis fee provided in section 47-633, are found by a county judge to be uncollectible for any reason, including the dismissal of the case, such costs shall be deemed waived unless the judge, in his or her discretion, enters an order assessing such portion of the costs as by law would be paid over by the court to the State Treasurer as follows:

(1) In all cases brought by or with the consent of the county attorney, all such uncollectible costs shall be certified by the clerk of the court to the county clerk who shall present the bills therefor to the county board. The county board shall pay from the county general fund all such bills found by the board to be lawful; and

(2) In all cases brought under city or village ordinance, all such uncollectible costs shall be certified to the appropriate city or village officer authorized to receive claims who shall present the bills therefor to the governing body of the city or village in the same manner as other claims. Such governing body shall pay from the general fund of the city or village all such bills as are found to be lawful.

Source:G.S.1873, c. 58, § 541, p. 842; Laws 1905, c. 207, § 1, p. 700; Laws 1913, c. 132, § 1, p. 320; R.S.1913, § 9245; C.S.1922, § 10274; C.S.1929, § 29-2709; R.S.1943, § 29-2709; Laws 1973, LB 226, § 23;    Laws 1975, LB 286, § 3;    Laws 1987, LB 665, § 2;    Laws 1988, LB 370, § 10;    Laws 2001, LB 83, § 2;    Laws 2002, LB 876, § 63;    Laws 2002, Second Spec. Sess., LB 13, § 3;    Laws 2003, LB 46, § 15.    


Cross References

Annotations

29-2710. Witness fees; criminal cases in district court; by whom paid.

The fees of all witnesses in criminal cases in the district court shall be paid by the county where the indictment is found.

Source:Laws 1875, § 1, p. 33; R.S.1913, § 9246; C.S.1922, § 10275; C.S.1929, § 29-2710; R.S.1943, § 29-2710.


Annotations

29-2801. Habeas corpus; writ; when allowed.

If any person, except persons convicted of some crime or offense for which they stand committed, or persons committed for treason or felony, the punishment whereof is capital, plainly and specially expressed in the warrant of commitment, now is or shall be confined in any jail of this state, or shall be unlawfully deprived of his or her liberty, and shall make application, either by him or herself or by any person on his or her behalf, to any one of the judges of the district court, or to any county judge, and does at the same time produce to such judge a copy of the commitment or cause of detention of such person, or if the person so imprisoned or detained is imprisoned or detained without any legal authority, upon making the same appear to such judge, by oath or affirmation, it shall be his duty forthwith to allow a writ of habeas corpus, which writ shall be issued forthwith by the clerk of the district court, or by the county judge, as the case may require, under the seal of the court whereof the person allowing such writ is a judge, directed to the proper officer, person or persons who detains such prisoner.

Source:G.S.1873, c. 58, § 353, p. 804; R.S.1913, § 9247; C.S.1922, § 10276; C.S.1929, § 29-2801; R.S.1943, § 29-2801; Laws 2015, LB268, § 24;    Referendum 2016, No. 426.

Note: The changes made to section 29-2801 by Laws 2015, LB 268, section 24, have been omitted because of the vote on the referendum at the November 2016 general election.


Annotations

29-2802. Writ; applicant; to be taken before judge; return.

It shall be the duty of the officer or person to whom such writ shall be directed to convey the person or persons so imprisoned or detained and named in such writ, before the judge allowing the same, or, in case of his absence or disability, before some other judge of the same court, on the day specified in such writ, and to make due return of the writ, together with the day and cause of caption and detention of such person, according to the command thereof.

Source:G.S.1873, c. 58, § 354, p. 804; R.S.1913, § 9248; C.S.1922, § 10277; C.S.1929, § 29-2802; R.S.1943, § 29-2802.


Annotations

29-2803. Habeas corpus; applicant; subpoena for witnesses.

Whenever a habeas corpus shall be issued to bring the body of any prisoner committed as aforesaid, unless the court or judge issuing the same shall deem it wholly unnecessary and useless, the court or judge shall issue a subpoena to the sheriff of the county where such person shall be confined, commanding him to summon the witness or witnesses therein named to appear before such judge or court, at the time and place when and where such habeas corpus shall be returnable. It shall be the duty of such sheriff to serve the subpoena, if possible, in time to enable such witness or witnesses to attend.

Source:G.S.1873, c. 58, § 355, p. 804; R.S.1913, § 9249; C.S.1922, § 10278; C.S.1929, § 29-2803; R.S.1943, § 29-2803.


29-2804. Subpoena; duty of witness; noncompliance; penalty.

It shall be the duty of the witness or witnesses thus served with subpoena to attend and give evidence before the judge or court issuing the same, on pain of being guilty of a contempt, in which event he or they shall be proceeded against accordingly by the judge or court.

Source:G.S.1873, c. 58, § 356, p. 805; R.S.1913, § 9250; C.S.1922, § 10279; C.S.1929, § 29-2804; R.S.1943, § 29-2804.


29-2805. Habeas corpus; hearing by court or judge; procedure.

On the hearing of any habeas corpus issued as aforesaid, it shall be the duty of the judge or court who shall hear the same to examine the witness or witnesses aforesaid, and such other witnesses as the prisoner may request, touching any offense mentioned in the warrant of commitment, whether the offense be technically set out in the commitment or not. Upon the hearing the judge or court may either recommit, bail or discharge the prisoner, according to the facts of the case.

Source:G.S.1873, c. 58, § 357, p. 805; R.S.1913, § 9251; C.S.1922, § 10280; C.S.1929, § 29-2805; R.S.1943, § 29-2805.


29-2806. Habeas corpus; disposition of cause.

When the judge shall have examined into the cause of the capture and detention of the person so brought before him, and shall be satisfied that the person is unlawfully imprisoned or detained, he shall forthwith discharge such prisoner from confinement. In case the person or persons applying for such writ shall be confined or detained in a legal manner, on a charge of having committed any crime or offense, the judge shall, at his discretion, commit, discharge or let to bail such person or persons, and if the judge shall deem the offense bailable, on the principles of law, he shall cause the person charged as aforesaid to enter into recognizance, with one or more sufficient securities, in such sum as the judge shall think reasonable, the circumstances of the prisoner and the nature of the offense charged considered, conditioned for his appearance at the next court where the offense is cognizable. The judge shall certify his proceedings, together with the recognizance, forthwith, to the proper court; and if the person or persons charged as aforesaid shall fail to enter into such recognizance, he or they shall be committed to prison by such judge.

Source:G.S.1873, c. 58, § 358, p. 805; R.S.1913, § 9252; C.S.1922, § 10281; C.S.1929, § 29-2806; R.S.1943, § 29-2806.


Annotations

29-2807. Writ; failure to obey; penalty.

If any person to whom such writ of habeas corpus shall be directed as aforesaid, shall neglect or refuse to obey or make return of the same according to the command thereof, or shall make a false return of the writ, or upon demand made by the prisoner, or any person in his or her behalf, shall refuse to deliver to the person demanding, within six hours after the demand therefor, a true copy of the warrant or commitment or detainer of such prisoner, every person so offending shall, for the first offense, forfeit to the party aggrieved the sum of two hundred dollars, and for the second offense, the sum of four hundred dollars, and shall, if an officer, be incapable to hold his office.

Source:G.S.1873, c. 58, § 359, p. 805; R.S.1913, § 9253; C.S.1922, § 10282; C.S.1929, § 29-2807; R.S.1943, § 29-2807.


29-2808. Writ; failure to issue; penalty.

If any clerk of the district court shall refuse to issue such writ after allowance and demand made as aforesaid, he shall forfeit to the party aggrieved the sum of five hundred dollars.

Source:G.S.1873, c. 58, § 360, p. 806; R.S.1913, § 9254; C.S.1922, § 10283; C.S.1929, § 29-2808; R.S.1943, § 29-2808.


29-2809. Applicant discharged; rearrest for same offense prohibited; penalty; exceptions.

Any person who shall be set at large upon any habeas corpus, shall not be again imprisoned for the same offense, unless by the legal order or process of the court wherein he or she shall be bound by recognizance to appear, or other court having jurisdiction of the cause or offense. If any person shall knowingly, contrary to sections 29-2801 to 29-2824, recommit or imprison, or cause to be recommitted or imprisoned for the same offense or pretended offense, any person so set at large, or shall knowingly aid or assist therein, he shall forfeit to the party aggrieved five hundred dollars, any colorable pretense or variation in the warrant or commitment notwithstanding.

Source:G.S.1873, c. 58, § 361, p. 806; R.S.1913, § 9255; C.S.1922, § 10284; C.S.1929, § 29-2809; R.S.1943, § 29-2809.


Annotations

29-2810. Person in custody of officer; delivery to another officer prohibited; penalty; exceptions.

If any person of this state shall be committed to prison, or be in custody of any officer for any criminal matter, such prisoner shall not be removed therefrom into the custody of any other officer, unless by legal process, or when the prisoner shall be delivered to some inferior officer to carry to jail, or shall, by order of the proper court, be removed from one place to another within the state for trial, or in case of fire, infection or other necessity; and if any person, after such commitment, shall make out or sign or countersign any warrant for such removal, contrary to this section, he or she shall for every such offense forfeit to the party aggrieved five hundred dollars.

Source:G.S.1873, c. 58, § 362, p. 806; R.S.1913, § 9256; C.S.1922, § 10285; C.S.1929, § 29-2810; R.S.1943, § 29-2810.


29-2811. Accessories before the fact in capital cases; not bailable.

When any person shall appear to be committed by any judge or magistrate, and charged as accessory before the fact to any felony, the punishment whereof is capital, which felony shall be plainly and especially charged in the warrant of commitment, such person shall not be removed or bailed by virtue of sections 29-2801 to 29-2824, or in any other manner than as if said sections had not been enacted.

Source:G.S.1873, c. 58, § 363, p. 806; R.S.1913, § 9257; C.S.1922, § 10286; C.S.1929, § 29-2811; R.S.1943, § 29-2811; Laws 2015, LB268, § 35;    Referendum 2016, No. 426.

Note: The repeal of section 29-2811 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.


29-2812. Extradition of citizens of Nebraska for prosecution in sister state; imprisonment for; general prohibition; penalty; exception.

No citizen of this state, being an inhabitant or resident of the same, shall be sent a prisoner to any place whatever out of the state, for any crime or offense committed within this state, except in cases specially authorized by law, and every such imprisonment is hereby declared to be illegal. If any such citizen shall be so imprisoned, he may for every such imprisonment maintain an action of false imprisonment, in any court having cognizance thereof, against the person or persons by whom he shall be so imprisoned or transported contrary to law, and against any person who shall contrive, write, seal, sign or countersign any writing for such imprisonment or transportation, or shall be aiding and assisting in the same or any of them, and shall recover triple costs besides damages, which damages, so to be given, shall not be less than five hundred dollars; and every person knowingly concerned in any manner as aforesaid in such illegal imprisonment or transportation, contrary to this section, and being thereof lawfully convicted, shall be disabled from henceforth to bear any office of trust or profit within this state; Provided, if any citizen of this state, or any person or persons at any time resident in the same, shall have committed or shall be charged with having committed any treason, felony or misdemeanor in any other part of the United States or territories where he or she ought to be tried for such offense, he, she or they may be sent to the state or territory having jurisdiction of the offense as provided by the Uniform Criminal Extradition Act of this state.

Source:G.S.1873, c. 58, § 364, p. 806; R.S.1913, § 9258; C.S.1922, § 10287; C.S.1929, § 29-2812; Laws 1935, c. 66, § 28, p. 231; C.S.Supp.,1941, § 29-2812; R.S.1943, § 29-2812.


Cross References

Annotations

29-2813. False imprisonment; penalties; action for; limitation.

The penalties recoverable pursuant to sections 29-2801 to 29-2824 shall be recovered by the party aggrieved, his or her executors or administrators, by civil action in any court having cognizance of the same; Provided, no person shall be sued or molested for any offense against the provisions of said sections, unless within two years after the time when such offense shall have been committed; but if the party aggrieved shall then be in prison, then within two years after the decease of the person imprisoned, or his or her delivery out of prison. In every such action it shall be lawful for the defendant to plead the general issue, and give the special matter in evidence.

Source:G.S.1873, c. 58, § 365, p. 807; R.S.1913, § 9259; C.S.1922, § 10288; C.S.1929, § 29-2813; R.S.1943, § 29-2813.


29-2814. Warrant or commitment; defects; when harmless.

If any person shall be committed to prison, or be in custody of any officer for any criminal matter, by virtue of any warrant or commitment of any magistrate of this state having jurisdiction of such criminal matter, such person shall not be discharged from such imprisonment or custody by reason of any informality or defect of such warrant or commitment; Provided, such warrant or commitment shall show substantially a criminal matter for which such magistrate had jurisdiction so to arrest or commit.

Source:G.S.1873, c. 58, § 366, p. 807; R.S.1913, § 9260; C.S.1922, § 10289; C.S.1929, § 29-2814; R.S.1943, § 29-2814.


Annotations

29-2815. Applicant in custody of person not an officer; form of writ.

In case of confinement, imprisonment, or detention by any person not a sheriff, deputy sheriff, coroner, jailer, or marshal of this state, nor a marshal or other like officer of the courts of the United States, the writ of habeas corpus shall be in the form following:

The State of Nebraska,

ss.

.............. County,

The People of the State of Nebraska to the Sheriff of such county, greeting:

We command you, that the body of .................., of ..............., by .................. of ............. imprisoned and restrained of his or her liberty, as it is said, you take and have before .................., a judge of our ............ court ................, or, in case of his or her absence or disability, before some other judge of the same court at .................., to do and receive what our judge shall then and there consider ................. concerning him or her in his or her behalf, and summon ................... then and there to appear before our judge to show the cause of the taking and detaining .................; and have you there this writ, with your doings thereon.

Witness ................., at ................, this ......... day of .............., in the year ...... .

Source:G.S.1873, c. 58, § 367, p. 807; R.S.1913, § 9261; C.S.1922, § 10290; C.S.1929, § 29-2815; R.S.1943, § 29-2815; Laws 1988, LB 1030, § 29.    


Annotations

29-2816. Writ; service and return.

Such writ may be served in any county by any sheriff of the same or of any other county. When such writ shall be issued by a court in session, if such court shall have adjourned when the same is returned, it shall be returned before any judge of the same court, and if such writ is returned before one judge at a time when the court is in session, he may adjourn the case into the court, there to be heard and determined.

Source:G.S.1873, c. 58, § 368, p. 808; R.S.1913, § 9262; C.S.1922, § 10291; C.S.1929, § 29-2816; R.S.1943, § 29-2816.


29-2817. Writ; return by person detaining; contents.

In every case in which a writ of habeas corpus has been allowed, the person to whom the writ is directed shall file a return in which he shall plainly and unequivocally state the following: (1) Whether he has or has not the party in his custody or power, or under restraint; (2) if he has the party in his custody or power, or under restraint, he shall set forth at large the authority and the true and whole cause of such imprisonment and restraint, with a copy of the writ, warrant, or other process, if any, upon which the party is detained; and (3) if he has had the party in his custody or power, or under restraint, and has transferred such custody or restraint to another, he shall state particularly to whom, at what time, for what cause and by what authority such transfer was made.

Source:G.S.1873, c. 58, § 371, p. 808; R.S.1913, § 9263; C.S.1922, § 10292; C.S.1929, § 29-2817; R.S.1943, § 29-2817.


Annotations

29-2818. Writ; return by person detaining; signature and verification.

The return or statement shall be signed by the person making it, and it shall be sworn to by him, unless he is a public officer and makes the return in his official capacity.

Source:G.S.1873, c. 58, § 372, p. 808; R.S.1913, § 9264; C.S.1922, § 10293; C.S.1929, § 29-2818; R.S.1943, § 29-2818.


29-2819. Writ; return of person detaining; prima facie evidence of cause of detention, when; order for costs.

Upon the return of any writ of habeas corpus, issued as aforesaid, if it shall appear that the person detained or imprisoned is in custody under any warrant or commitment in pursuance of law, the return shall be considered as prima facie evidence of the cause of detention; but if the person so imprisoned or detained is restrained of liberty by any alleged private authority, the return of the writ shall be considered only as a plea of the facts therein set forth, and the party claiming the custody shall be held to make proof of such facts. Upon the final disposition of any case arising upon a writ of habeas corpus, the court or judge determining the same shall make such order as to costs as the case may require.

Source:G.S.1873, c. 58, § 373, p. 809; R.S.1913, § 9265; C.S.1922, § 10294; C.S.1929, § 29-2819; R.S.1943, § 29-2819.


Annotations

29-2820. Writ; person detaining; how designated.

The person having the custody of the prisoner may, in all writs of habeas corpus issued under sections 29-2801 to 29-2824, be designated by his name of office, if he has any, or by his own name; or if both such names are unknown or uncertain, he may be described by an assumed appellation, and any person who is served with the writ shall be deemed the person intended thereby.

Source:G.S.1873, c. 58, § 369, p. 808; R.S.1913, § 9266; C.S.1922, § 10295; C.S.1929, § 29-2820; R.S.1943, § 29-2820.


29-2821. Writ; person detained; how designated.

The person to be produced shall be designated by his name, if known, and if that is unknown or uncertain, he may be described in any other way so as to make known who is intended.

Source:G.S.1873, c. 58, § 370, p. 808; R.S.1913, § 9267; C.S.1922, § 10296; C.S.1929, § 29-2821; R.S.1943, § 29-2821.


29-2822. Writ; order for safekeeping of person detained.

When any writ of habeas corpus shall have been allowed, the court or judge to which the same shall be returned, or into which it shall be adjourned, shall, for good cause shown, continue the cause and shall make order for the safekeeping of the person imprisoned, or detain him, as the nature of the case may require.

Source:G.S.1873, c. 58, § 374, p. 809; R.S.1913, § 9268; C.S.1922, § 10297; C.S.1929, § 29-2822; R.S.1943, § 29-2822.


29-2823. Habeas corpus proceedings; review; procedure; bail pending appeal.

The proceedings upon any writ of habeas corpus shall be recorded by the clerk and judges respectively, and may be reviewed as provided by law for appeal in civil cases. If the state shall appeal from a final order of a district court made upon the return of a writ of habeas corpus discharging a defendant in a criminal case, the defendant shall not be discharged from custody pending final decision upon appeal; Provided, said defendant may be admitted to bail pending disposition of said appeal as is otherwise provided by law.

Source:G.S.1873, c. 58, § 375, p. 809; R.S.1913, § 9269; Laws 1921, c. 168, § 1, p. 660; C.S.1922, § 10298; C.S.1929, § 29-2823; R.S.1943, § 29-2823; Laws 1947, c. 106, § 1, p. 296.


Cross References

Annotations

29-2824. Habeas corpus proceedings; fees; taxation as costs; payment by county; payment in advance not demandable.

The county judge shall be allowed the sum of five dollars for every allowance of the writ of habeas corpus and the hearing and determining of the case upon the return of the writ, which sum, together with the fees of the clerk, sheriff, and witnesses in the case, shall be taxed by the judge on his or her return of proceedings on the writ, and the same shall be taxed and collected as part of the original costs in the case whenever the person brought before the judge on the writ was in custody by virtue of the proceedings in any case in which such person is charged or attempted to be charged with the commission of any criminal offense, and when such person shall either be held to bail, or shall be remanded to custody by the judge, but when such person shall be wholly discharged by the judge the costs shall be taxed to the state, and paid out of the county treasury of the proper county, upon the order of the county board; Provided, no person or officer shall have the right to demand the payment in advance of any fees which such person or officer may be entitled to by virtue of such proceedings on habeas corpus, when the writ shall have been issued or demanded for the discharge from custody of any person confined under color of proceedings in any criminal case.

Source:G.S.1873, c. 58, § 376, p. 809; R.S.1913, § 9270; C.S.1922, § 10299; C.S.1929, § 29-2824; R.S.1943, § 29-2824; Laws 1982, LB 928, § 25.


Annotations

29-2901. Repealed. Laws 1979, LB 378, § 13.

29-2902. Repealed. Laws 1979, LB 378, § 13.

29-2903. Repealed. Laws 1979, LB 378, § 13.

29-2903.01. Repealed. Laws 1979, LB 378, § 13.

29-2904. Repealed. Laws 1979, LB 378, § 13.

29-2905. Repealed. Laws 1979, LB 378, § 13.

29-2906. Repealed. Laws 1979, LB 378, § 13.

29-2907. Repealed. Laws 1979, LB 378, § 13.

29-2908. Repealed. Laws 1979, LB 378, § 13.

29-2909. Repealed. Laws 1979, LB 378, § 13.

29-2910. Repealed. Laws 1979, LB 378, § 13.

29-2911. Repealed. Laws 1992, LB 523, § 18.

29-2912. Repealed. Laws 1992, LB 523, § 18.

29-2913. Repealed. Laws 1992, LB 523, § 18.

29-2914. Repealed. Laws 1992, LB 523, § 18.

29-2915. Repealed. Laws 1992, LB 523, § 18.

29-2916. Repealed. Laws 1992, LB 523, § 18.

29-2917. Repealed. Laws 1992, LB 523, § 18.

29-2918. Repealed. Laws 1992, LB 523, § 18.

29-2919. Repealed. Laws 1992, LB 523, § 18.

29-2920. Repealed. Laws 1992, LB 523, § 18.

29-2921. Repealed. Laws 1992, LB 523, § 18.

29-2922. Act, how cited.

Sections 29-2922 to 29-2936 shall be known and may be cited as the Convicted Sex Offender Act.

Source:Laws 1992, LB 523, § 1.    


Annotations

29-2923. Terms, defined.

For purposes of the Convicted Sex Offender Act:

(1) Aftercare treatment program shall mean any public or private facility or service which offers treatment on an outpatient basis or in a minimally restricted setting, which treatment is appropriate for a convicted sex offender after he or she has successfully completed an inpatient treatment program operated by the Department of Health and Human Services; and

(2) Convicted sex offender shall mean a person who is convicted of sexual assault in the first degree as provided in section 28-319, sexual assault in the second degree as provided in section 28-320, sexual assault of a child in the second or third degree as provided in section 28-320.01, sexual assault of a child in the first degree as provided in section 28-319.01, incest as provided in section 28-703, or attempt to commit sexual assault in the first degree pursuant to section 28-201 and sentenced to a term of imprisonment in a Department of Correctional Services adult correctional facility.

Source:Laws 1992, LB 523, § 2;    Laws 1996, LB 1044, § 78;    Laws 2006, LB 1199, § 16.    


29-2924. Sentences authorized.

Nothing in the Convicted Sex Offender Act shall be construed to prohibit a court from sentencing a person convicted of a crime identified in subdivision (2) of section 29-2923 to probation or community service or imposing any other sentence or condition allowed by law.

Source:Laws 1992, LB 523, § 3.    


29-2925. Department of Correctional Services; Department of Health and Human Services; duties; evaluation of offender.

Within sixty days of the date of commitment to the Department of Correctional Services of a convicted sex offender to serve his or her sentence, the Department of Health and Human Services shall conduct an evaluation of the offender for purposes of determining whether treatment in a treatment program operated by the Department of Health and Human Services is appropriate for the offender. The evaluation process shall be based upon criteria and procedures established by the Department of Health and Human Services. The Department of Correctional Services shall provide the Department of Health and Human Services access to all correctional and presentence records determined by the Department of Health and Human Services to be relevant to the evaluation process.

Source:Laws 1992, LB 523, § 4;    Laws 1996, LB 1044, § 79.    


29-2926. Determination that treatment is not appropriate; review; procedure; no appeal.

(1) If the Department of Health and Human Services determines that treatment in an inpatient treatment program operated by the department is not appropriate for a convicted sex offender, the offender may request the sentencing judge to review the determination in accordance with subsection (2) of this section.

(2) Within thirty days of the determination of the Department of Health and Human Services that the treatment in an inpatient treatment program operated by the department is not appropriate for a convicted sex offender, the offender may apply to the sentencing judge for a review of the denial of treatment. The review shall be conducted under the following rules of procedure:

(a) The court may allow each party to call witnesses on its behalf at such party's expense. Witnesses may be subpoenaed at the expense of the party calling the witness;

(b) Each party shall be allowed to be represented by counsel at such party's expense;

(c) Each party may be allowed to cross-examine adverse witnesses;

(d) The Nebraska Evidence Rules shall not apply unless expressly provided for by law, and the court may consider all evidence which in its discretion is relevant to whether the determination of the department is appropriate;

(e) The court may affirm the determination of the department, remand the matter for further proceedings, or reverse or modify the determination if such determination is unsupported by competent, material, and substantial evidence in view of the entire record as made on review or if the determination is arbitrary and capricious; and

(f) The review pursuant to this section shall not be subject to appeal.

Source:Laws 1992, LB 523, § 5;    Laws 1996, LB 1044, § 80.    


Cross References

29-2927. Repealed. Laws 1996, LB 645, § 22.

29-2928. Treatment in inpatient treatment program; determination; procedure; departments; duties.

(1) If the Department of Health and Human Services determines that treatment in an inpatient treatment program operated by the Department of Health and Human Services is appropriate for a convicted sex offender, that the offender will enter the treatment program voluntarily, and that space is available in the program, the Director of Correctional Services shall transfer the offender to the treatment program designated by the Department of Health and Human Services for treatment. The Department of Correctional Services shall be responsible for physical transfer of the offender to the treatment facility.

(2) If the Department of Health and Human Services determines that treatment in an inpatient treatment program operated by the Department of Health and Human Services is not appropriate for a convicted sex offender, the offender shall serve the sentence in a facility operated by the Department of Correctional Services and may participate in treatment offered by the Department of Correctional Services if the Department of Correctional Services determines that such treatment is appropriate for the offender. The Department of Correctional Services may make a recommendation concerning treatment as provided in subsection (4) of this section.

(3) If the Department of Health and Human Services determines that treatment in an inpatient treatment program operated by the Department of Health and Human Services is not initially appropriate for a convicted sex offender but may be appropriate at a later time, a treatment decision may be deferred until a designated time, no later than two and one-half years prior to the offender's earliest parole eligibility date, when the offender will be reevaluated.

(4) If the Department of Correctional Services determines that an offender participating in treatment offered by the Department of Correctional Services will benefit from a treatment program operated by the Department of Health and Human Services, the Department of Correctional Services shall notify the Department of Health and Human Services and recommend admission of the offender to the treatment program. The evaluation process to determine whether such offender is to be admitted into a treatment program operated by the Department of Health and Human Services pursuant to this subsection shall be based upon criteria and procedures established by the Department of Health and Human Services and shall not be subject to appeal or review.

Source:Laws 1992, LB 523, § 7;    Laws 1996, LB 1044, § 82;    Laws 2007, LB296, § 46.    


29-2929. Inpatient treatment program; annual review and progress reports; uncooperative offender; transfer; credit for time in treatment.

(1) The inpatient treatment program operated by the Department of Health and Human Services shall conduct annual reviews of each convicted sex offender in the program and submit annual progress reports to the Department of Correctional Services.

(2) If the offender is uncooperative while in the inpatient treatment program or is found not to be amenable to treatment, the Department of Health and Human Services shall cause the offender to be returned to the Department of Correctional Services in accordance with procedures established by the Department of Health and Human Services. The Department of Correctional Services shall be responsible for physical transfer of the offender from the inpatient treatment facility to the Department of Correctional Services. The Department of Health and Human Services shall, at the time of the transfer, provide the Department of Correctional Services a report summarizing the offender's response to and progress while in treatment and the reasons for the transfer and shall provide access to the treatment records as requested by the Department of Correctional Services.

(3) All days of confinement in a treatment program operated by the Department of Health and Human Services shall be credited to the offender's term of imprisonment.

Source:Laws 1992, LB 523, § 8;    Laws 1996, LB 645, § 16;    Laws 1996, LB 1044, § 83;    Laws 2007, LB296, § 47.    


29-2930. Inpatient treatment program; aftercare treatment program; individual discharge plan.

If the Department of Health and Human Services determines that the convicted sex offender has received the maximum benefit of the inpatient treatment program operated by the Department of Health and Human Services and is ready for treatment in an aftercare treatment program, the person in charge of the inpatient treatment program shall develop an individual discharge plan documenting the findings and recommendations of the program and a designated aftercare treatment program. The individual discharge plan shall be provided to the Department of Correctional Services, the Board of Parole, and the designated aftercare treatment program.

Source:Laws 1992, LB 523, § 9;    Laws 1996, LB 645, § 17;    Laws 1996, LB 1044, § 84.    


29-2931. Repealed. Laws 1996, LB 645, § 22.

29-2932. Repealed. Laws 1996, LB 645, § 22.

29-2933. Repealed. Laws 1996, LB 645, § 22.

29-2934. Person committed under prior law; procedures.

(1) Each person committed as a mentally disordered sex offender pursuant to sections 29-2911 to 29-2921 as such sections existed prior to July 15, 1992, who is being treated in a regional center or other secure public institution operated by the Department of Health and Human Services and has at least one year remaining on his or her sentence as of such date shall, within one hundred eighty days after such date, be returned to the district court which committed him or her for review and disposition consistent with the terms of this section.

(2) Each person committed to a regional center or other secure public institution operated by the Department of Health and Human Services as a mentally disordered sex offender by a court pursuant to sections 29-2911 to 29-2921 as such sections existed prior to July 15, 1992, who is in a facility operated by the Department of Correctional Services awaiting treatment as of such date shall be placed in a treatment facility operated by the Department of Health and Human Services for evaluation and treatment as soon as practical after space and staff become available. Within thirty days of such placement, the Department of Health and Human Services shall determine, based on criteria and procedures established by the Department of Health and Human Services, whether the offender will remain in the treatment program or be returned to the Department of Correctional Services to await court review or the end of his or her sentence. Within thirty days after the evaluation-and-treatment period, if the offender has at least one hundred eighty days remaining on his or her sentence, he or she shall be returned to the committing district court for review and disposition consistent with the terms of this section.

(3) The Department of Health and Human Services shall prepare and present a report and recommendations for each offender to be reviewed by the district court under subsection (1) or (2) of this section.

(4) Each person identified in subsections (1) and (2) of this section who was committed as a mentally disordered sex offender by a court after having entered a plea of guilty or nolo contendere shall, upon return to the district court, elect whether to be resentenced under the Convicted Sex Offender Act or continue his or her commitment pursuant to sections 29-2911 to 29-2921 as such sections existed prior to July 15, 1992.

(5) For each person identified in subsections (1) and (2) of this section who was committed as a mentally disordered sex offender by a court after having entered a plea of not guilty and for each person identified in subsection (4) of this section who elected to be resentenced under the act, subsections (6) and (7) of this section shall apply.

(6) If the court finds that the offender is treatable in an inpatient treatment program operated by the Department of Health and Human Services, the offender shall be returned to or placed in such a treatment program and sections 29-2929 and 29-2930 shall apply.

(7) If the court finds that the offender is not amenable to treatment, is uncooperative in treatment, or has reached the maximum benefit of treatment in an inpatient treatment program operated by the Department of Health and Human Services but cannot be placed in an aftercare treatment program under conditions set by the court consistent with public safety, the offender shall be placed in a facility operated by the Department of Correctional Services to serve the remainder of his or her original sentence.

Source:Laws 1992, LB 523, § 13;    Laws 1996, LB 645, § 18;    Laws 1996, LB 1044, § 87.    


29-2935. Department of Health and Human Services; access to data and information for evaluation; authorized.

For purposes of evaluating the treatment process, the Division of Parole Supervision, the Department of Correctional Services, the Board of Parole, and the designated aftercare treatment programs shall allow appropriate access to data and information as requested by the Department of Health and Human Services.

Source:Laws 1992, LB 523, § 14;    Laws 1996, LB 645, § 19;    Laws 1996, LB 1044, § 88;    Laws 2018, LB841, § 4.    


29-2936. Rules and regulations.

The Department of Health and Human Services shall adopt and promulgate rules and regulations as necessary to carry out the Convicted Sex Offender Act.

Source:Laws 1992, LB 523, § 15;    Laws 1996, LB 1044, § 89.    


29-3001. Postconviction relief; motion; limitation; procedure; costs.

(1) A prisoner in custody under sentence and claiming a right to be released on the ground that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, may file a verified motion, in the court which imposed such sentence, stating the grounds relied upon and asking the court to vacate or set aside the sentence.

(2) Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the county attorney, grant a prompt hearing thereon, and determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States, the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence the prisoner or grant a new trial as may appear appropriate. Proceedings under the provisions of sections 29-3001 to 29-3004 shall be civil in nature. Costs shall be taxed as in habeas corpus cases.

(3) A court may entertain and determine such motion without requiring the production of the prisoner, whether or not a hearing is held. Testimony of the prisoner or other witnesses may be offered by deposition. The court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner.

(4) A one-year period of limitation shall apply to the filing of a verified motion for postconviction relief. The one-year limitation period shall run from the later of:

(a) The date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal;

(b) The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence;

(c) The date on which an impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of this state, is removed, if the prisoner was prevented from filing a verified motion by such state action;

(d) The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on postconviction collateral review; or

(e) The date on which the Supreme Court of the United States denies a writ of certiorari or affirms a conviction appealed from the Nebraska Supreme Court. This subdivision only applies if, within thirty days after petitioning the Supreme Court of the United States for a writ of certiorari, the prisoner files a notice in the district court of conviction stating that the prisoner has filed such petition.

Source:Laws 1965, c. 145, § 1, p. 486; Laws 2011, LB137, § 1;    Laws 2023, LB50, § 18.    


Annotations

29-3002. Postconviction relief; order; appeal; recognizance.

An order sustaining or overruling a motion filed under sections 29-3001 to 29-3004 shall be deemed to be a final judgment, and an appeal may be taken from the district court as provided for in appeals in civil cases. A prisoner may, in the discretion of the appellate court and upon application to the appellate court, be released on such recognizance as the appellate court fixes pending the determination of the appeal.

Source:Laws 1965, c. 145, § 2, p. 487; Laws 1991, LB 732, § 87; Laws 1993, LB 652, § 2.    


Cross References

Annotations

29-3003. Postconviction remedy; cumulative; dismissal; when.

The remedy provided by sections 29-3001 to 29-3004 is cumulative and is not intended to be concurrent with any other remedy existing in the courts of this state. Any proceeding filed under the provisions of sections 29-3001 to 29-3004 which states facts which if true would constitute grounds for relief under another remedy shall be dismissed without prejudice.

Source:Laws 1965, c. 145, § 3, p. 487.


Annotations

29-3004. Appointment of counsel; competency and effectiveness; compensation.

The district court may appoint not to exceed two attorneys to represent the prisoners in all proceedings under sections 29-3001 to 29-3004. The district court, upon hearing the application, shall fix reasonable expenses and fees, and the county board shall allow payment to the attorney or attorneys in the full amount determined by the court. The attorney or attorneys shall be competent and shall provide effective counsel.

Source:Laws 1965, c. 145, § 4, p. 487; Laws 1967, c. 180, § 2, p. 499; Laws 1990, LB 829, § 2;    Laws 1993, LB 652, § 3.    


Annotations

29-3005. Victim of sex trafficking; motion to set aside conviction or adjudication; procedure; court; findings; considerations; hearing; order; effect.

(1) For purposes of this section:

(a) Prostitution-related offense includes:

(i) Prostitution under section 28-801, solicitation of prostitution under section 28-801.01, keeping a place of prostitution under section 28-804, public indecency under section 28-806, or loitering for the purpose of engaging in prostitution or related or similar offenses under local ordinances; and

(ii) Attempt, conspiracy, solicitation, being an accessory to, aiding and abetting, aiding the consummation of, or compounding a felony with any of the offenses in subdivision (1)(a) of this section as the underlying offense;

(b) Trafficker means a person who engages in sex trafficking or sex trafficking of a minor as defined in section 28-830; and

(c) Victim of sex trafficking means a person subjected to sex trafficking or sex trafficking of a minor, as those terms are defined in section 28-830.

(2) At any time following the completion of sentence or disposition, a victim of sex trafficking convicted in county or district court of, or adjudicated in a juvenile court for, (a) a prostitution-related offense committed while the movant was a victim of sex trafficking or proximately caused by the movant's status as a victim of sex trafficking or (b) any other offense committed as a direct result of, or proximately caused by, the movant's status as a victim of sex trafficking, may file a motion to set aside such conviction or adjudication. The motion shall be filed in the county, district, or separate juvenile court of the county in which the movant was convicted or adjudicated.

(3)(a) If the court finds that the movant was a victim of sex trafficking at the time of the prostitution-related offense or finds that the movant's participation in the prostitution-related offense was proximately caused by the movant's status as a victim of sex trafficking, the court shall grant the motion to set aside a conviction or an adjudication for such prostitution-related offense.

(b) If the court finds that the movant's participation in an offense other than a prostitution-related offense was a direct result of or proximately caused by the movant's status as a victim of sex trafficking, the court shall grant the motion to set aside a conviction or an adjudication for such offense.

(4) Official documentation of a movant's status as a victim of sex trafficking at the time of the prostitution-related offense or other offense shall create a rebuttable presumption that the movant was a victim of sex trafficking at the time of the prostitution-related offense or other offense. Such official documentation shall not be required to obtain relief under this section. Such official documentation includes:

(a) A copy of an official record, certification, or eligibility letter from a federal, state, tribal, or local proceeding, including an approval notice or an enforcement certification generated from a federal immigration proceeding, that shows that the movant is a victim of sex trafficking; or

(b) An affidavit or sworn testimony from an attorney, a member of the clergy, a medical professional, a trained professional staff member of a victim services organization, or other professional from whom the movant has sought legal counsel or other assistance in addressing the trauma associated with being a victim of sex trafficking.

(5) In considering whether the movant is a victim of sex trafficking, the court may consider any other evidence the court determines is of sufficient credibility and probative value, including an affidavit or sworn testimony. Examples of such evidence include, but are not limited to:

(a) Branding or other tattoos on the movant that identified him or her as having a trafficker;

(b) Testimony or affidavits from those with firsthand knowledge of the movant's involvement in the commercial sex trade such as solicitors of commercial sex, family members, hotel workers, and other individuals trafficked by the same individual or group of individuals who trafficked the movant;

(c) Financial records showing profits from the commercial sex trade, such as records of hotel stays, employment at indoor venues such as massage parlors, bottle clubs, or strip clubs, or employment at an escort service;

(d) Internet listings, print advertisements, or business cards used to promote the movant for commercial sex; or

(e) Email, text, or voicemail records between the movant, the trafficker, or solicitors of sex that reveal aspects of the sex trade such as behavior patterns, meeting times, or payments or examples of the trafficker exerting force, fraud, or coercion over the movant.

(6) Upon request of a movant, any hearing relating to the motion shall be conducted in camera. The rules of evidence shall not apply at any hearing relating to the motion.

(7) An order setting aside a conviction or an adjudication under this section shall have the same effect as an order setting aside a conviction as provided in subsections (5) and (6) of section 29-2264.

Source:Laws 2018, LB1132, § 2;    Laws 2020, LB881, § 25.    


29-3101. Arrest of accused person illegally in state; release; violation; warrant; documents filed; notify county attorney.

(a) If a person who has been charged with crime in another state and released from custody prior to final judgment, including the final disposition of any appeal, is alleged to have violated the terms and conditions of his release, and is present in this state, a designated agent of the court, judge, or magistrate which authorized the release may request the issuance of a warrant for the arrest of the person and an order authorizing his return to the demanding court, judge, or magistrate. Before the warrant is issued, the designated agent must file with a judicial officer of this state having authority under the laws of this state to issue warrants for the arrest of persons charged with crime the following documents:

(1) An affidavit stating the name and whereabouts of the person whose removal is sought, the crime with which the person was charged, the time and place of the crime charged, and the status of the proceedings against him;

(2) A certified copy of the order or other document specifying the terms and conditions under which the person was released from custody; and

(3) A certified copy of an order of the demanding court, judge, or magistrate stating the manner in which the terms and the conditions of the release have been violated and designating the affiant its agent for seeking removal of the person.

(b) Upon initially determining that the affiant is a designated agent of the demanding court, judge, or magistrate, and that there is probable cause for believing that the person whose removal is sought has violated the terms or conditions of his release, the judicial officer shall issue a warrant to a law enforcement officer of this state for the person's arrest.

(c) The judicial officer shall notify the county attorney of his action and shall direct him to investigate the case to ascertain the validity of the affidavits and documents required by subsection (a) and the identity and authority of the affiant.

Source:Laws 1969, c. 228, §1, p. 851.


29-3102. Removal; hearing; rights of person accused; conditions for release.

(a) The person whose removal is sought shall be brought before the judicial officer immediately upon arrest pursuant to the warrant; whereupon the judicial officer shall set a time and place for hearing, and shall advise the person of his right to have the assistance of counsel, to confront the witnesses against him, and to produce evidence in his own behalf at the hearing.

(b) The person whose removal is sought may at this time in writing waive the hearing and agree to be returned to the demanding court, judge, or magistrate. If a waiver is executed, the judicial officer shall issue an order pursuant to section 29-3103.

(c) The judicial officer may impose conditions of release authorized by the laws of this state which will reasonably assure the appearance at the hearing of the person whose removal is sought.

Source:Laws 1969, c. 228, § 2, p. 852.


29-3103. Order; return to demanding court.

The county attorney shall appear at the hearing and report to the judicial officer the results of his investigation. If the judicial officer finds that the affiant is a designated agent of the demanding court, judge, or magistrate and that the person whose removal is sought was released from custody by the demanding court, judge, or magistrate, and that the person has violated the terms or conditions of his release, the judicial officer shall issue an order authorizing the return of the person to the custody of the demanding court, judge, or magistrate forthwith.

Source:Laws 1969, c. 228, § 3, p. 853.


29-3104. Severability.

If any provision of sections 29-3101 to 29-3106 or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of sections 29-3101 to 29-3106 which can be given effect without the invalid provision or application, and to this end the provisions of sections 29-3101 to 29-3106 are severable.

Source:Laws 1969, c. 228, § 4, p. 853.


29-3105. Sections, how construed.

Sections 29-3101 to 29-3106 shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them.

Source:Laws 1969, c. 228, § 5, p. 853.


29-3106. Act, how cited.

Sections 29-3101 to 29-3106 may be cited as the Uniform Rendition of Accused Persons Act.

Source:Laws 1969, c. 228, § 6, p. 853.


29-3201. Terms, defined.

As used in sections 29-3201 to 29-3210,

(a) Witness means a person who is confined in a penal institution in any state and whose testimony is desired in another state in any criminal proceeding or investigation by a grand jury or in any criminal action before a court.

(b) Penal institutions includes a jail, prison, penitentiary, house of correction, or other place of penal detention.

(c) State includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory of the United States.

Source:Laws 1969, c. 229, § 1, p. 854.


29-3202. Witness; summoning in this state to testify in another state; procedure.

A judge of a state court of record in another state, which by its laws has made provision for commanding persons confined in penal institutions within that state to attend and testify in this state, may certify (1) that there is a criminal proceeding or investigation by a grand jury or a criminal action pending in the court, (2) that a person who is confined in a penal institution in this state may be a material witness in the proceeding, investigation, or action, and (3) that his presence will be required during a specified time. Upon presentation of the certificate to any judge having jurisdiction over the person confined, and upon notice to the Attorney General, the judge in this state shall fix a time and place for a hearing and shall make an order directed to the person having custody of the prisoner requiring that the prisoner be produced before him at the hearing.

Source:Laws 1969, c. 229, § 2, p. 854.


29-3203. Order; conditions; contents.

If at the hearing the judge determines (1) that the witness may be material and necessary, (2) that his attending and testifying are not adverse to the interests of this state or to the health or legal rights of the witness, (3) that the laws of the state in which he is requested to testify will give him protection from arrest and the service of civil and criminal process because of any act committed prior to his arrival in the state under the order, and (4) that as a practical matter the possibility is negligible that the witness may be subject to arrest or to the service of civil or criminal process in any state through which he will be required to pass, the judge shall issue an order, with a copy of the certificate attached, (a) directing the witness to attend and testify, (b) directing the person having custody of the witness to produce him, in the court where the criminal action is pending, or where the grand jury investigation is pending, at a time and place specified in the order, and (c) prescribing such conditions as the judge shall determine.

Source:Laws 1969, c. 229, § 3, p. 855.


29-3204. Order; mileage and expenses; order effective, when; conditions.

The order to the witness and to the person having custody of the witness shall provide for the return of the witness at the conclusion of his or her testimony, proper safeguards on his or her custody, and proper financial reimbursement or prepayment by the requesting jurisdiction for all expenses incurred in the production and return of the witness, and may prescribe such other conditions as the judge thinks proper or necessary. Mileage and expenses shall be allowed as provided in sections 81-1174 to 81-1177 for state employees. The order shall not become effective until the judge of the state requesting the witness enters an order directing compliance with the conditions prescribed.

Source:Laws 1969, c. 229, § 4, p. 855; Laws 1981, LB 204, § 45.    


29-3205. Sections; exceptions.

Sections 29-3201 to 29-3210 do not apply to any person in this state confined as mentally ill or under sentence of death.

Source:Laws 1969, c. 229, § 5, p. 855; Laws 1986, LB 1177, § 11;    Laws 2015, LB268, § 25;    Referendum 2016, No. 426.

Note: The changes made to section 29-3205 by Laws 2015, LB 268, section 25, have been omitted because of the vote on the referendum at the November 2016 general election.


29-3206. Prisoner from another state summoned to testify in this state; procedure.

If a person confined in a penal institution in any other state may be a material witness in a criminal action pending in a court of record or in a grand jury investigation in this state, a judge of the court may certify (1) that there is a criminal proceeding or investigation by a grand jury or a criminal action pending in the court, (2) that a person who is confined in a penal institution in the other state may be a material witness in the proceeding, investigation, or action, and (3) that his presence will be required during a specified time. The certificate shall be presented to a judge of a court of record in the other state having jurisdiction over the prisoner confined, and a notice shall be given to the Attorney General of the state in which the prisoner is confined.

Source:Laws 1969, c. 229, § 6, p. 855.


29-3207. Order; compliance.

The judge of the court in this state may enter an order directing compliance with the terms and conditions prescribed by the judge of the state in which the witness is confined.

Source:Laws 1969, c. 229, § 7, p. 856.


29-3208. Exemptions from arrest and personal service.

If a witness from another state comes into or passes through this state under an order directing him to attend and testify in this or another state, he shall not while in this state pursuant to the order be subject to arrest or the service of process, civil or criminal, because of any act committed prior to his arrival in this state under the order.

Source:Laws 1969, c. 229, § 8, p. 856.


29-3209. Sections, how construed.

Sections 29-3201 to 29-3210 shall be so construed as to effectuate their general purpose to make uniform the law of those states which enact them.

Source:Laws 1969, c. 229, § 9, p. 856.


29-3210. Act, how cited.

Sections 29-3201 to 29-3210 may be cited as the Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act.

Source:Laws 1969, c. 229, § 10, p. 856.


29-3301. Terms, defined.

As used in sections 29-3301 to 29-3307, the terms identifying physical characteristics or identification procedures shall include but not be limited to fingerprints, palm prints, footprints, measurements, handwriting exemplars, lineups, hand printing, voice samples, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, and photographs of an individual.

Source:Laws 1971, LB 568, § 1.    


Annotations

29-3302. Orders authorizing identification procedures; who may issue.

Judges and magistrates may issue orders authorizing identification procedures for the purpose of obtaining identifying physical characteristics in accordance with the procedures specified in sections 29-3301 to 29-3307. An order may be issued by any judge of the district court, Court of Appeals, or Supreme Court for service and execution anywhere within the State of Nebraska. An order may also be issued by any judge of the county court or other magistrate for service within the county of issuance.

Source:Laws 1971, LB 568, § 2;    Laws 1982, LB 928, § 26; Laws 1984, LB 13, § 73;    Laws 1991, LB 732, § 88; Laws 1992, LB 1059, § 27.


Annotations

29-3303. Order; issuance; requirements.

The order may issue upon a showing by affidavit of a peace officer that (1) there is probable cause to believe that an offense has been committed; (2) there is probable cause to believe that the person subject to the order has committed the offense; (3) procurement of evidence of identifying physical characteristics through nontestimonial identification procedures from an identified or particularly described individual may contribute to the identification of the individual who committed such offense; and (4) the identified or described individual has refused, or there is reason to believe he or she will refuse, to voluntarily provide the desired evidence of identifying physical characteristics. The contents of the affidavit may be supplemented or augmented by the affidavits of other persons or by sworn testimony given to the issuing judge or magistrate.

Source:Laws 1971, LB 568, § 3;    Laws 2005, LB 361, § 31.    


Annotations

29-3304. Order; when not required.

No order shall be required or necessary where the individual has been lawfully arrested, nor under any circumstances where peace officers may otherwise lawfully require or request the individual to provide evidence of identifying physical characteristics, and no order shall be required in the course of trials or other judicial proceedings.

Source:Laws 1971, LB 568, § 4.    


Annotations

29-3305. Order; contents.

Any order issued under sections 29-3301 to 29-3307 shall specify (1) the character of the alleged criminal offense which is the subject of the application; (2) the specific type or types of identifying physical characteristic evidence which are sought; (3) the identity or description of the individual who may be detained for obtaining such evidence; (4) the name and official status of the peace officer or officers authorized to obtain such evidence and to effectuate any detention which may be necessary to obtain the evidence; (5) the place at which the obtaining of such evidence may be carried out; (6) that the person will be under no legal obligation to submit to any interrogation or to make any statement during the period of his appearance except that required for voice identification; (7) that the individual shall forthwith accompany the officer serving the order for the purpose of carrying out its objectives, or, in the alternative, fixing a time at which the individual shall appear for the purpose of carrying out the objectives of the order; (8) that the person, if he fails to accompany the officer, or to appear at the time fixed, as may be provided, or to otherwise comply with the provisions of the order, shall be guilty of contempt of court and punished accordingly; (9) the period of time during which the named or described individual may be detained for obtaining such evidence, which in no event shall exceed five hours; (10) the period of time, not exceeding fifteen days, during which the order shall continue in force and effect; and (11) any other conditions which the issuing judge or magistrate finds to be necessary to properly protect the rights of the individual who is to supply such evidence.

Source:Laws 1971, LB 568, § 5.    


Annotations

29-3306. Order; service; return.

A copy of the order shall be given to the individual at the time it is served on him. No more than thirty days after the identification procedures have been carried out, a return of the order shall be made to the issuing court setting forth the type of evidence taken. Where the order is not executed, a return so indicating shall be filed within thirty days of its issuance.

Source:Laws 1971, LB 568, § 6.    


Annotations

29-3307. Contempt; penalty.

The penalty for contempt of court, as provided in sections 29-3301 to 29-3307, shall not exceed thirty days' imprisonment in the county jail.

Source:Laws 1971, LB 568, § 7.    


Annotations

29-3401. Interstate corrections compact.

The State of Nebraska ratifies and approves the following compact:

INTERSTATE CORRECTIONS COMPACT

Article I

Purpose and Policy

The party States, desiring by common action to fully utilize and improve their institutional facilities and provide adequate programs for the confinement, treatment and rehabilitation of various types of offenders, declare that it is the policy of each of the party States to provide such facilities and programs on a basis of cooperation with one another, thereby serving the best interests of such offenders and of society and effecting economies in capital expenditures and operational costs. The purpose of this Compact is to provide for the mutual development and execution of such programs of cooperation for the confinement, treatment and rehabilitation of offenders with the most economical use of human and material resources.

Article II

Definitions

As used in this Compact, unless the context clearly requires otherwise:

(1) "State" means a State of the United States, the United States of America, a Territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico;

(2) "sending State" means a State party to this Compact in which conviction or court commitment was had;

(3) "receiving State" means a State party to this Compact to which an inmate is sent for confinement other than a State in which conviction or court commitment was had;

(4) "inmate" means a male or female offender who is committed, under sentence to or confined in a penal or correctional institution;

(5) "institution" means any penal or correctional facility, including but not limited to a facility for the mentally ill or mentally defective, in which inmates as defined in (4) above may lawfully be confined.

Article III

Contracts

(a) Each party State may make one or more contracts with any one or more of the other party States for the confinement of inmates on behalf of a sending State in institutions situated within receiving States. Any such contract shall provide for:

(1) its duration;

(2) payments to be made to the receiving State by the sending State for inmate maintenance, extraordinary medical and dental expenses, and any participation in or receipt by inmates of rehabilitative or correctional services, facilities, programs or treatment not reasonably included as part of normal maintenance;

(3) participation in programs of inmate employment, if any, the disposition or crediting of any payments received by inmates on account thereof, and the crediting of proceeds from or disposal of any products resulting therefrom;

(4) delivery and retaking of inmates;

(5) such other matters as may be necessary and appropriate to fix the obligations, responsibilities and rights of the sending and receiving States.

(b) The terms and provisions of this Compact shall be a part of any contract entered into by the authority of or pursuant thereto, and nothing in any such contract shall be inconsistent therewith.

Article IV

Procedures and Rights

(a) Whenever the duly constituted authorities in a State party to this Compact, and which has entered into a contract pursuant to Article III, shall decide that confinement in, or transfer of an inmate to, an institution within the territory of another party State is necessary or desirable in order to provide adequate quarters and care or an appropriate program of rehabilitation or treatment, said officials may direct that the confinement be within an institution within the territory of said other party State, the receiving State to act in that regard solely as agent for the sending State.

(b) The appropriate officials of any State party to this Compact shall have access, at all reasonable times, to any institution in which it has a contractual right to confine inmates for the purpose of inspecting the facilities thereof and visiting such of its inmates as may be confined in the institution.

(c) Inmates confined in an institution pursuant to the terms of this Compact shall at all times be subject to the jurisdiction of the sending State and may at any time be removed therefrom for transfer to a prison or other institution within the sending State, for transfer to another institution in which the sending State may have a contractual or other right to confine inmates, for release on probation or parole, for discharge, or for any other purpose permitted by the laws of the sending State, provided, that the sending State shall continue to be obligated to such payments as may be required pursuant to the terms of any contract entered into under the terms of Article III.

(d) Each receiving State shall provide regular reports to each sending State on the inmates of that sending State in institutions pursuant to this Compact including a conduct record of each inmate and certify said record to the official designated by the sending State, in order that each inmate may have official review of his or her record in determining and altering the disposition of said inmate in accordance with the law which may obtain in the sending State and in order that the same may be a source of information for the sending State.

(e) All inmates who may be confined in an institution pursuant to the provisions of this Compact shall be treated in a reasonable and humane manner and shall be treated equally with such similar inmates of the receiving State as may be confined in the same institution. The fact of confinement in a receiving State shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending State.

(f) Any hearing or hearings to which an inmate confined pursuant to this Compact may be entitled by the laws of the sending state may be had before the appropriate authorities of the sending State, or of the receiving State, if authorized by the sending State. The receiving State shall provide adequate facilities for such hearings as may be conducted by the appropriate officials of a sending State. In the event such hearing or hearings are had before officials of the receiving State, the governing law shall be that of the sending State and a record of the hearing or hearings as prescribed by the sending State shall be made. Said record together with any recommendations of the hearing officials shall be transmitted forthwith to the official or officials before whom the hearing would have been had if it had taken place in the sending State. In any and all proceedings had pursuant to the provisions of this subdivision, the officials of the receiving State shall act solely as agents of the sending State and no final determination shall be made in any matter except by the appropriate officials of the sending State.

(g) Any inmate confined pursuant to this Compact shall be released within the territory of the sending State unless the inmate, and the sending and receiving States, shall agree upon release in some other place. The sending State shall bear the cost of such return to its territory.

(h) Any inmate confined pursuant to the terms of this Compact shall have any and all rights to participate in and derive any benefits or incur or be relieved of any obligations or have such obligations modified or his status changed on account of any action or proceeding in which he could have participated if confined in any appropriate institution of the sending State located within such State.

(i) The parent, guardian, trustee, or other person or persons entitled under the laws of the sending State to act for, advise, or otherwise function with respect to any inmate shall not be deprived of or restricted in his exercise of any power in respect of any inmate confined pursuant to the terms of this Compact.

Article V

Acts Not Reviewable in Receiving State: Extradition

(a) Any decision of the sending State in respect of any matter over which it retains jurisdiction pursuant to this Compact shall be conclusive upon and not reviewable within the receiving State, but if at the time the sending State seeks to remove an inmate from an institution in the receiving State there is pending against the inmate within such State any criminal charge or if the inmate is formally accused of having committed within such State a criminal offense, the inmate shall not be returned without the consent of the receiving State until discharged from prosecution or other form of proceeding, imprisonment or detention for such offense. The duly accredited officers of the sending State shall be permitted to transport inmates pursuant to this Compact through any and all States party to this Compact without interference.

(b) An inmate who escapes from an institution in which he is confined pursuant to this Compact shall be deemed a fugitive from the sending State and from the State in which the institution is situated. In the case of an escape to a jurisdiction other than the sending or receiving State, the responsibility for institution of extradition or rendition proceedings shall be that of the sending State, but nothing contained herein shall be construed to prevent or affect the activities of officers and agencies of any jurisdiction directed toward the apprehension and return of an escapee.

Article VI

Federal Aid

Any State party to this Compact may accept federal aid for use in connection with any institution or program, the use of which is or may be affected by this Compact or any contract pursuant hereto and any inmate in a receiving State pursuant to this Compact may participate in any such federally aided program or activity for which the sending and receiving States have made contractual provision; provided, that if such program or activity is not part of the customary correctional regimen the express consent of the appropriate official of the sending State shall be required therefor.

Article VII

Entry into Force

This Compact shall enter into force and become effective and binding upon the States so acting when it has been enacted into law by any 2 States. Thereafter, this Compact shall enter into force and become effective and binding as to any other of said States upon similar action by such State.

Article VIII

Withdrawal and Termination

This Compact shall continue in force and remain binding upon a party State until it shall have enacted a statute repealing the same and providing for the sending of formal written notice of withdrawal from the Compact to the appropriate officials of all other party States. An actual withdrawal shall not take effect until one year after the notices provided in said statute have been sent. Such withdrawal shall not relieve the withdrawing State from its obligations assumed hereunder prior to the effective date of withdrawal. Before the effective date of withdrawal, a withdrawing State shall remove to its territory, at its own expense, such inmates as it may have confined pursuant to the provisions of this Compact.

Article IX

Other Arrangements Unaffected

Nothing contained in this Compact shall be construed to abrogate or impair any agreement or other arrangement which a party State may have with a non-party State for the confinement, rehabilitation or treatment of inmates nor to repeal any other laws of a party State authorizing the making of cooperative institutional arrangements.

Article X

Construction and Severability

The provisions of this Compact shall be liberally construed and shall be severable. If any phrase, clause, sentence or provision of this Compact is declared to be contrary to the constitution of any participating State or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this Compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this Compact shall be held contrary to the constitution of any State participating therein, the Compact shall remain in full force and effect as to the remaining States and in full force and effect as to the State affected as to all severable matters.

Article XI

An inmate must request a transfer in writing before such a transfer can be made pursuant to Article IV.

Source:Laws 1974, LB 697, § 1.    


Annotations

29-3402. Department of Correctional Services; powers.

The Department of Correctional Services is hereby authorized and directed to do all things necessary or incidental to the carrying out of the Compact in every particular.

Source:Laws 1974, LB 697, § 2.    


29-3501. Act, how cited.

Sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423 shall be known and may be cited as the Security, Privacy, and Dissemination of Criminal History Information Act.

Source:Laws 1978, LB 713, § 1.    


29-3502. Sections; purposes.

The purposes of sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423 are (1) to control and coordinate criminal offender record keeping within this state, (2) to establish more efficient and uniform systems of criminal offender record keeping, (3) to assure periodic audits of such record keeping in order to determine compliance with sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423, (4) to establish a more effective administrative structure for the protection of individual privacy in connection with such record keeping, and (5) to preserve the principle of the public's right to know of the official actions of criminal justice agencies.

Source:Laws 1978, LB 713, § 2.    


29-3503. Definitions; sections found.

For the purposes of sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423, unless the context otherwise requires, the definitions found in sections 29-3504 to 29-3514 shall be used.

Source:Laws 1978, LB 713, § 3.    


29-3504. Administration of criminal justice, defined.

Administration of criminal justice shall mean performance of any of the following activities: Detection, apprehension, detention, pretrial release, pretrial diversion, posttrial release, prosecution, defense by a full-time public defender's office, defense by the Commission on Public Advocacy, adjudication, correctional supervision, or rehabilitation of accused persons or criminal offenders. The administration of criminal justice shall include criminal identification activities and the collection, storage, and dissemination of criminal history record information.

Source:Laws 1978, LB 713, § 4;    Laws 2002, LB 82, § 15.    


29-3505. Commission, defined.

Commission shall mean the Nebraska Commission on Law Enforcement and Criminal Justice.

Source:Laws 1978, LB 713, § 5.    


29-3506. Criminal history record information, defined.

Criminal history record information shall mean information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of issuance of arrest warrants, arrests, detentions, indictments, charges by information, and other formal criminal charges, and any disposition arising from such arrests, charges, sentencing, correctional supervision, and release. Criminal history record information shall include any judgment against or settlement with the state as a result of a wrongful conviction pursuant to the Nebraska Claims for Wrongful Conviction and Imprisonment Act. Criminal history record information shall not include intelligence or investigative information.

Source:Laws 1978, LB 713, § 6;    Laws 2009, LB260, § 9.    


Cross References

Annotations

29-3507. Complete, defined.

With reference to criminal history record information, complete shall mean that arrest records shall show the subsequent disposition of the case as it moves through the various stages of the criminal justice system; and accurate shall mean containing no erroneous information of a material nature.

Source:Laws 1978, LB 713, § 7.    


29-3508. Criminal history record information system or system, defined.

Criminal history record information system or system shall mean a system including the equipment, facilities, procedures, agreements, and organizations thereof, for the collection, processing, preservation, or dissemination of criminal history record information.

Source:Laws 1978, LB 713, § 8.    


29-3509. Criminal justice agency, defined.

Criminal justice agency shall mean:

(1) Courts; and

(2) A government agency or any subunit thereof which performs the administration of criminal justice pursuant to a statute or executive order and which allocates a substantial part of its annual budget to the administration of criminal justice.

Source:Laws 1978, LB 713, § 9.    


29-3510. Direct access, defined.

Direct access shall mean having the custodial authority to handle and control the actual documents or automated or computerized documentary record which constitutes the criminal history database.

Source:Laws 1978, LB 713, § 10.    


29-3511. Disposition, defined.

Disposition shall mean information disclosing that criminal proceedings have been concluded, including information disclosing that the police have elected not to refer a matter to a prosecutor or that a prosecutor has elected not to commence criminal proceedings, and also information disclosing the nature of the termination of the proceedings.

Source:Laws 1978, LB 713, § 11.    


29-3512. Operator, defined.

Operator shall mean the agency, person, or group of persons designated by the governing body of the jurisdiction served by a criminal history record information system to coordinate and supervise the system.

Source:Laws 1978, LB 713, § 12.    


29-3513. Person, defined.

Person shall mean any natural person, corporation, partnership, limited liability company, firm, or association.

Source:Laws 1978, LB 713, § 13;    Laws 1993, LB 121, § 192.    


29-3514. Person in interest, defined.

Person in interest shall mean the person who is the primary subject of a criminal justice record or any representative designated by such person, except that if the subject of the record is under legal disability, person in interest shall mean the person's parent or duly appointed legal representative.

Source:Laws 1978, LB 713, § 14.    


29-3515. Criminal justice agency; criminal history record information; maintain.

Each criminal justice agency shall maintain complete and accurate criminal history record information with regard to the actions taken by the agency.

Source:Laws 1978, LB 713, § 15.    


29-3516. Criminal justice agency; disposition of cases; report; procedure; commission; forms; rules and regulations; adopt.

Each criminal justice agency in this state shall report the disposition of cases which enter its area in the administration of criminal justice. As to cases in which fingerprint records must be reported to the Nebraska State Patrol under section 29-209, such disposition reports shall be made to the patrol. In all other cases when a centralized criminal history record information system is maintained by local units of government, dispositions made within the jurisdiction covered by such system shall be reported to the operator of that system or to the arresting agency in a noncentralized criminal history record information system. All dispositions shall be reported as promptly as feasible but not later than fifteen days after the happening of an event which constitutes a disposition. In order to achieve uniformity in reporting procedures, the commission shall prescribe the form to be used in reporting dispositions and may adopt rules and regulations to achieve efficiency and which will promote the ultimate purpose of insuring that each criminal justice information system maintained in this state shall contain complete and accurate criminal history information. All forms and rules and regulations relating to reports of dispositions by courts shall be approved by the Supreme Court of Nebraska.

Source:Laws 1978, LB 713, § 18.    


29-3517. Criminal justice agency; criminal history record information; process; assure accuracy.

Each criminal justice agency shall institute a process of data collection, entry, storage, and systematic audit of criminal history record information that will minimize the possibility of recording and storing inaccurate information. Any criminal justice agency which finds that it has reported inaccurate information of a material nature shall forthwith notify each criminal justice agency known to have received such information. Each criminal justice agency shall (1) maintain a listing of the individuals or agencies both in and outside of the state to which criminal history record information was released, a record of what information was released, and the date such information was released, (2) establish a delinquent disposition monitoring system, and (3) verify all record entries.

Source:Laws 1978, LB 713, § 19.    


29-3518. Criminal history record information; access; restrictions; requirements.

Direct access to criminal history record information system facilities, system operating environments, data file contents, and system documentation shall be restricted to authorized organizations and persons. Wherever criminal history record information is collected, stored, or disseminated, the criminal justice agency or agencies responsible for the operation of the system: (1) May determine for legitimate security purposes which personnel may work in a defined area where such information is stored, collected, or disseminated; (2) shall select and supervise all personnel authorized to have direct access to such information; (3) shall assure that an individual or agency authorized direct access is administratively held responsible for (a) the physical security of criminal history record information under its control or in its custody, and (b) the protection of such information from unauthorized access, disclosure, or dissemination; (4) shall institute procedures to reasonably protect any central repository of criminal history record information from unauthorized access, theft, sabotage, fire, flood, wind, or other natural or manmade disasters; (5) shall provide that each employee working with or having access to criminal history record information is to be made familiar with sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423 and of any rules and regulations promulgated under such sections; and (6) shall require that direct access to criminal history record information shall be made available only to authorized officers or employees of a criminal justice agency and, as necessary, other authorized personnel essential to the proper operation of the criminal history record information system. This section shall not be construed to inhibit or limit dissemination of criminal history record information as authorized in other sections of sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423, including both review of original records and the right to have copies made of records when not prohibited.

Source:Laws 1978, LB 713, § 20.    


29-3519. Criminal justice information systems; computerized; access; limitations; security; conditions.

Whenever computerized data processing is employed, effective and technologically advanced software and hardware designs shall be instituted to prevent unauthorized access to such information. Computer operations which support criminal justice information systems shall operate in accordance with procedures approved by the participating criminal justice agencies and assure that (1) criminal history record information is stored by the computer in such a manner that it cannot be modified, destroyed, accessed, changed, purged, or overlaid in any fashion by noncriminal justice terminals, (2) operation programs are used that will prohibit inquiry, record updates, or destruction of records from any terminal other than criminal justice system terminals which are so designated, (3) destruction of records is limited to designated terminals under the direct control of the criminal justice agency responsible for creating or storing the criminal history record information, (4) operational programs are used to detect and store, for the output of designated criminal justice agency employees, all unauthorized attempts to penetrate any criminal history record information system, program, or file, (5) the programs specified in subdivisions (2) and (4) of this section are known only to criminal justice agency employees responsible for criminal history record information control, or individuals and agencies pursuant to a specific agreement with the criminal justice agency to provide such programs and that the programs are kept continuously under maximum security conditions, and (6) a criminal justice agency may audit, monitor, and inspect procedures established in this section.

Source:Laws 1978, LB 713, § 21.    


29-3520. Criminal history record information; public record; criminal justice agencies; regulations; adopt.

Complete criminal history record information maintained by a criminal justice agency shall be a public record open to inspection and copying by any person during normal business hours and at such other times as may be established by the agency maintaining the record. Criminal justice agencies may adopt such regulations with regard to inspection and copying of records as are reasonably necessary for the physical protection of the records and the prevention of unnecessary interference with the discharge of the duties of the agency.

Source:Laws 1978, LB 713, § 22.    


29-3521. Information; considered public record; classifications.

In addition to public records under section 29-3520, information consisting of the following classifications shall be considered public record for purposes of dissemination: (1) Posters, announcements, lists for identifying or apprehending fugitives or wanted persons, or photographs taken in conjunction with an arrest for purposes of identification of the arrested person; (2) original records of entry such as police blotters, offense reports, or incident reports maintained by criminal justice agencies; (3) court records of any judicial proceeding; and (4) records of traffic offenses maintained by the Department of Motor Vehicles for the purpose of regulating the issuance, suspension, revocation, or renewal of driver's or other operator's licenses.

Source:Laws 1978, LB 713, § 23.    


29-3522. Criminal justice agency records; application to inspect; unavailable; procedure to provide records.

If the requested criminal justice history record or other public record, as defined in section 29-3521, of a criminal justice agency is not in the custody or control of the person to whom application is made, such person shall immediately notify the applicant of this fact. Such notification shall be in writing if requested by the applicant and shall state the agency, if known, which has custody or control of the record in question. If the requested criminal history record or other public record of a criminal justice agency is in the custody and control of the person to whom application is made but is not available at the time an applicant asks to examine it, the custodian shall immediately notify the applicant of such fact, in writing, if requested by the applicant. When requested by the applicant, the custodian shall set a date and hour within three working days at which time the record shall be available for inspection.

Source:Laws 1978, LB 713, § 24.    


29-3523. Criminal history record information; dissemination; limitations; removal; certain information not part of public record; court; duties; sealed record; effect; expungement.

(1) After the expiration of the periods described in subsection (3) of this section or after the granting of a motion under subsection (4), (5), or (6) of this section, a criminal justice agency shall respond to a public inquiry in the same manner as if there were no criminal history record information and criminal history record information shall not be disseminated to any person other than a criminal justice agency, except as provided in subsection (2) of this section or when the subject of the record:

(a) Is currently the subject of prosecution or correctional control as the result of a separate arrest;

(b) Is currently an announced candidate for or holder of public office;

(c) Has made a notarized request for the release of such record to a specific person; or

(d) Is kept unidentified, and the record is used for purposes of surveying or summarizing individual or collective law enforcement agency activity or practices, or the dissemination is requested consisting only of release of criminal history record information showing (i) dates of arrests, (ii) reasons for arrests, and (iii) the nature of the dispositions including, but not limited to, reasons for not prosecuting the case or cases.

(2) That part of criminal history record information described in subsection (7) of this section may be disseminated to individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency that specifically authorizes access to the information, limits the use of the information to research, evaluative, or statistical activities, and ensures the confidentiality and security of the information.

(3) Except as provided in subsections (1) and (2) of this section, in the case of an arrest, citation in lieu of arrest, or referral for prosecution without citation, all criminal history record information relating to the case shall be removed from the public record as follows:

(a) When no charges are filed as a result of the determination of the prosecuting attorney, the criminal history record information shall not be part of the public record after one year from the date of arrest, citation in lieu of arrest, or referral for prosecution without citation;

(b) When charges are not filed as a result of a completed diversion, the criminal history record information shall not be part of the public record after two years from the date of arrest, citation in lieu of arrest, or referral for prosecution without citation; and

(c) When charges are filed, but the case is dismissed by the court (i) on motion of the prosecuting attorney, (ii) as a result of a hearing not the subject of a pending appeal, (iii) after acquittal, (iv) after a deferred judgment, or (v) after completion of a program prescribed by a drug court or any other problem solving court approved by the Supreme Court, the criminal history record information shall not be part of the public record immediately upon notification of a criminal justice agency after acquittal pursuant to subdivision (3)(c)(iii) of this section or after the entry of an order dismissing the case.

(4) Upon the granting of a motion to set aside a conviction or an adjudication pursuant to section 29-3005, a person who is a victim of sex trafficking, as defined in section 29-3005, may file a motion with the sentencing court for an order to seal the criminal history record information related to such conviction or adjudication. Upon a finding that a court issued an order setting aside such conviction or adjudication pursuant to section 29-3005, the sentencing court shall grant the motion and:

(a) For a conviction, issue an order as provided in subsection (7) of this section; or

(b) For an adjudication, issue an order as provided in section 43-2,108.05.

(5) Any person who has received a pardon may file a motion with the sentencing court for an order to seal the criminal history record information and any cases related to such charges or conviction. Upon a finding that the person received a pardon, the court shall grant the motion and issue an order as provided in subsection (7) of this section.

(6) Any person who is subject to a record which resulted in a case being dismissed prior to January 1, 2017, as described in subdivision (3)(c) of this section, may file a motion with the court in which the case was filed to enter an order pursuant to subsection (7) of this section. Upon a finding that the case was dismissed for any reason described in subdivision (3)(c) of this section, the court shall grant the motion and enter an order as provided in subsection (7) of this section.

(7) Upon acquittal or entry of an order dismissing a case described in subdivision (3)(c) of this section, or after granting a motion under subsection (4), (5), or (6) of this section, the court shall:

(a) Order that all records, including any information or other data concerning any proceedings relating to the case, including the arrest, taking into custody, petition, complaint, indictment, information, trial, hearing, adjudication, correctional supervision, dismissal, or other disposition or sentence, are not part of the public record and shall not be disseminated to persons other than criminal justice agencies, except as provided in subsection (1) or (2) of this section;

(b) Send notice of the order (i) to the Nebraska Commission on Law Enforcement and Criminal Justice, (ii) to the Nebraska State Patrol, and (iii) to law enforcement agencies, county attorneys, and city attorneys referenced in the court record;

(c) Order all parties notified under subdivision (7)(b) of this section to seal all records pertaining to the case; and

(d) If the case was transferred from one court to another, send notice of the order to seal the record to the transferring court.

(8) In any application for employment, bonding, license, education, or other right or privilege, any appearance as a witness, or any other public inquiry, a person cannot be questioned with respect to any offense for which the record is sealed. If an inquiry is made in violation of this subsection, the person may respond as if the offense never occurred.

(9) Any person arrested due to the error of a law enforcement agency may file a petition with the district court for an order to expunge the criminal history record information related to such error. The petition shall be filed in the district court of the county in which the petitioner was arrested. The county attorney shall be named as the respondent and shall be served with a copy of the petition. The court may grant the petition and issue an order to expunge such information if the petitioner shows by clear and convincing evidence that the arrest was due to error by the arresting law enforcement agency.

(10) The changes made by Laws 2018, LB1132, to the relief set forth in this section shall apply to all persons otherwise eligible in accordance with the provisions of this section, whether arrested, cited in lieu of arrest, referred for prosecution without citation, charged, convicted, or adjudicated prior to, on, or subsequent to July 19, 2018.

Source:Laws 1978, LB 713, § 25;    Laws 1980, LB 782, § 1; Laws 1997, LB 856, § 1;    Laws 2007, LB470, § 1;    Laws 2015, LB605, § 73;    Laws 2016, LB505, § 1;    Laws 2018, LB1132, § 3;    Laws 2019, LB686, § 12.    


Annotations

29-3524. Criminal justice agencies; fees; assessment.

Criminal justice agencies may assess reasonable fees, not to exceed actual costs, for search, retrieval, storing, maintaining, and copying of criminal justice records and may waive fees at their discretion. When fees for certified copies or other copies, printouts, or photographs of such records are specifically prescribed by law, such specific fees shall apply. All fees collected by the Nebraska State Patrol pursuant to this section shall be remitted to the State Treasurer for credit to the Nebraska State Patrol Cash Fund.

Source:Laws 1978, LB 713, § 26;    Laws 1986, LB 851, § 4;    Laws 2003, LB 17, § 17.    


29-3525. Criminal history record information; review by person in interest; identity; verification.

Any person in interest, who asserts that he or she has reason to believe that criminal history information relating to him or her or the person in whose interest he or she acts is maintained by any system in this state, shall be entitled to review and receive a copy of such information for the purpose of determining its accuracy and completeness by making application to the agency operating such system. The applicant shall provide satisfactory verification of the subject's identity, which shall include name, date, and place of birth, and, when identification is doubtful, a set of fingerprint impressions may be taken upon fingerprint cards or forms commonly used for law enforcement purposes by law enforcement agencies. The review authorized by this section shall be limited to a review of criminal history record information.

Source:Laws 1978, LB 713, § 28.    


29-3526. Commission; powers and duties; rules and regulations.

The commission may by rule authorize a fee for each application for review under section 29-3525, and may charge for making copies or printouts as provided in section 29-3524. The commission shall implement section 29-3525 by rule and regulation, including but not limited to provisions for (1) administrative review and necessary correction of any claim by the individual to whom the information relates that the information is inaccurate or incomplete, (2) administrative appeal when a criminal justice agency refuses to correct challenged information to the satisfaction of the individual to whom the information relates, (3) supplying to an individual whose record has been corrected, upon his or her request, the names of all noncriminal justice agencies and individuals to which the data has been given, and (4) requiring the correcting agency to notify all criminal justice recipients of corrected information.

Source:Laws 1978, LB 713, § 29.    


29-3527. Violations; penalty.

Any person who (1) permits unauthorized direct access to criminal history record information, (2) knowingly fails to disseminate or make public criminal history record information of official acts as required under sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423, or (3) knowingly disseminates nondisclosable criminal history record information in violation of sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423, shall be guilty of a Class IV misdemeanor.

Source:Laws 1978, LB 713, § 30.    


29-3528. Violations; person aggrieved; remedies.

Whenever any officer or employee of the state, its agencies, or its political subdivisions, or whenever any state agency or any political subdivision or its agencies fails to comply with the requirements of sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423 or of regulations lawfully adopted to implement sections 29-209, 29-210, 29-3501 to 29-3528, and 81-1423, any person aggrieved may bring an action, including but not limited to an action for mandamus, to compel compliance and such action may be brought in the district court of any district in which the records involved are located or in the district court of Lancaster County. The commission may request the Attorney General to bring such action.

Source:Laws 1978, LB 713, § 31.    


Annotations

29-3601. Legislative findings.

The Legislature finds that pretrial diversion offers persons charged with criminal offenses and minor traffic violations an alternative to traditional criminal justice proceedings in that: (1) It permits participation by the accused only on a voluntary basis; (2) the accused has access to counsel for criminal offenses prior to a decision to participate; (3) it occurs prior to an adjudication but after arrest and a decision has been made by the prosecutor that the offense will support criminal charges; and (4) it results in dismissal of charges, or its equivalent, if the individual successfully completes the diversion process.

Source:Laws 1979, LB 573, § 2;    Laws 2002, LB 1303, § 1;    Laws 2003, LB 43, § 11.    


29-3602. Pretrial diversion program; established.

The county attorney of any county may establish a pretrial diversion program with the concurrence of the county board. Any city attorney may establish a pretrial diversion program with the concurrence of the governing body of the city. Such programs shall be established pursuant to sections 29-3603 and 29-3605 to 29-3609.

Source:Laws 1979, LB 573, § 3;    Laws 1999, LB 295, § 1;    Laws 2002, LB 1303, § 2.    


29-3603. Pretrial diversion plan for criminal offenses; requirements.

A pretrial diversion plan for criminal offenses shall include, but not be limited to:

(1) Formal eligibility guidelines established following consultation with criminal justice officials and program representatives. The guidelines shall be written and made available and routinely disseminated to all interested parties;

(2) A maximum time limit for any defendant's participation in a diversion program, beyond which no defendant shall be required or permitted to participate. Such maximum term shall be long enough to effect sufficient change in participants to deter them from criminal activity, but not so long as to prejudice the prosecution or defense of the case should the participant be returned to the ordinary course of prosecution;

(3) The opportunity for eligible defendants to review, with their counsel present, a copy of general diversion program requirements including average program duration and possible outcome, prior to making the decision to enter a diversion program;

(4) Dismissal of the diverted case upon completion of the program;

(5) A provision that participants shall be able to withdraw at any time before the program is completed and be remanded to the court process without prejudice to them during the ordinary course of prosecution;

(6) Enrollment shall not be conditioned on a plea of guilty; and

(7) Defendants who are denied enrollment in a diversion program shall be afforded an administrative review of the decision and written reasons for denial.

Source:Laws 1979, LB 573, § 4;    Laws 2002, LB 1303, § 3.    


29-3604. Driving while intoxicated, implied consent refusal; not eligible for pretrial diversion.

No person charged with a violation of section 60-6,196 or 60-6,197 shall be eligible for pretrial diversion under a program established pursuant to sections 29-3601 to 29-3603 and 29-3605 to 29-3609.

Source:Laws 1982, LB 568, § 4;    Laws 1993, LB 370, § 15;    Laws 2002, LB 1303, § 4.    


29-3605. Minor traffic violations; terms, defined.

For purposes of sections 29-3606 to 29-3609:

(1) Department means the Department of Motor Vehicles; and

(2) Minor traffic violation does not include leaving the scene of an accident, sections 60-696 to 60-698, driving under the influence of alcoholic liquor or drugs, sections 60-4,164, 60-6,196, and 60-6,211.01, reckless driving or willful reckless driving, sections 60-6,213 and 60-6,214, participating in a speed competition, section 60-6,195, operating a motor vehicle to avoid arrest, section 28-905, refusing a breath or blood test, sections 60-4,164, 60-6,197, 60-6,197.04, and 60-6,211.02, driving on a suspended or revoked operator's license, sections 60-4,107 to 60-4,110 and 60-6,197.06, speeding twenty or more miles per hour over the speed limit, operating a motor vehicle without insurance or other financial responsibility in violation of the Motor Vehicle Safety Responsibility Act, any injury accident, or any violation which is classified as a misdemeanor or a felony.

Source:Laws 2002, LB 1303, § 5;    Laws 2004, LB 208, § 3.    


Cross References

29-3606. Minor traffic violations; pretrial diversion plan; driver's safety training program.

(1) A pretrial diversion plan for minor traffic violations shall consist of a driver's safety training program.

(2) A driver's safety training program shall:

(a) Provide a curriculum of driver's safety training, as approved by the department, which is designed to educate persons committing minor traffic violations and to deter future violations; and

(b) Require payment of a fee approved by the department which is reasonable and appropriate to defray the cost of the presentation of the program. A jurisdiction shall charge a uniform fee for participation in a driver's safety training program regardless of the traffic violation for which the applicant was cited. Fees received by a jurisdiction offering a driver's safety training program may be utilized by such jurisdiction to pay for the costs of administering and operating such program, to promote driver safety, and to pay for the costs of administering and operating other safety and educational programs within such jurisdiction.

(3) The program administrator of each driver's safety training program shall keep a record of attendees and shall be responsible for determining eligibility. A report of attendees at all driver's safety training programs in the state shall be shared only with similar programs throughout the state. All procedures for sharing records of attendees among such programs shall conform with the rules and regulations adopted and promulgated by the department to assure that no individual takes the approved course more than once within any three-year period in Nebraska. Such record of attendees and any related records shall not be considered a public record as defined in section 84-712.01.

(4) The department shall approve the curriculum and fees of each program and shall adopt and promulgate rules and regulations governing such programs, including guidelines for fees, curriculum, and instructor certification.

Source:Laws 2002, LB 1303, § 6.    


29-3607. Minor traffic violations; driver's safety training program; certificate; fee.

Any organization or governmental entity desiring to offer a driver's safety training program shall first obtain a certificate from the department, to be renewed annually. The certificate fee and the annual renewal fee shall each be fifty dollars. The fee collected by the department from the organization or governmental entity shall be remitted to the State Treasurer for credit to the Department of Motor Vehicles Cash Fund.

Source:Laws 2002, LB 1303, § 7.    


29-3608. Minor traffic violations; pretrial diversion program; eligibility.

Any driver holding a commercial driver's license or CLP-commercial learner's permit issued pursuant to the Motor Vehicle Operator's License Act shall not be eligible to participate in a program under sections 29-3605 to 29-3609 if such participation would be in noncompliance with federal law or regulation and subject the state to possible loss of federal funds.

Source:Laws 2002, LB 1303, § 8;    Laws 2003, LB 562, § 1;    Laws 2005, LB 76, § 1;    Laws 2011, LB178, § 1;    Laws 2014, LB983, § 1.    


Cross References

29-3609. Minor traffic violations; applicability.

Sections 29-3605 to 29-3609 shall not apply to programs of pretrial diversion for offenses other than minor traffic violations.

Source:Laws 2002, LB 1303, § 9.    


29-3701. Verdict of acquittal; probable cause hearing; finding; referral or confinement; evaluations; conditions of confinement; order; preparation of treatment plan; contents.

(1) Following receipt of a verdict of acquittal on grounds of insanity, the court shall forthwith conduct a hearing to determine whether there is probable cause to believe the person is dangerous to himself, herself, or others by reason of mental illness or defect or will be so dangerous in the foreseeable future, as demonstrated by omissions, threats, or overt acts. In making this determination the court shall consider all evidence adduced at trial and all additional relevant evidence. If the court finds probable cause it shall order an evaluation not to exceed ninety days in length of the person's mental condition and a treatment plan pursuant to subsection (4) of this section. The evaluation of the person may be conducted as an outpatient at a regional center or other appropriate facility if the court finds by clear and convincing evidence that the person poses no current danger to society at the time of the probable cause hearing and will not become a danger to society during the evaluation period. Otherwise the evaluation of the person shall be conducted as an inpatient at a locked and secure regional center facility or other appropriate locked and secure facility. When the court orders such an inpatient evaluation, the court shall specify in a detailed written order all conditions of the person's confinement during the evaluation and under what, if any, circumstances the person may leave the locked and secure facility. The written order specifying the conditions of confinement shall include a finding by the court that any freedom of movement accorded the person outside a locked and secure facility is consistent with the safety of the public.

(2) The superintendent of the regional center or the director of the facility to which the person has been referred or confined for evaluation shall be responsible for supervising the evaluation and the preparation of an individualized treatment plan.

(3) The report of the evaluation shall address the following to the extent that the available information allows: (a) The person's psychological condition at the time of the evaluation; (b) the probable course of development of the person's condition, with special attention to the probable relationship between the person's current condition and the person's condition at the time of any omissions, threats, or overt acts establishing dangerousness, including the crime for which he or she was acquitted on grounds of insanity; (c) the probable relationship, if any, between the previous omissions, threats, or overt acts establishing dangerousness and the person's condition at the time of the omissions, threats, or overt acts; and (d) the prognosis for change in the person's condition in light of available treatment.

(4) The individualized treatment plan shall contain a statement of the nature of the specific mental and physical problems and needs of the person, a statement of the least restrictive treatment conditions necessary to achieve the purposes of the plan, a statement of the least restrictive treatment conditions consistent with the safety of the public, and a description of intermediate and long-range treatment goals and a projected timetable for their attainment.

(5) Such evaluation and treatment plan shall include the facts upon which conclusions stated therein are based and shall be received by the court at least ten days prior to the expiration of the evaluation period. Copies of the evaluation and treatment plan shall be furnished to the prosecuting attorney and to the person.

(6) If the person desires a separate evaluation, he or she may file a motion with the court requesting an evaluation by one or more qualified experts of his or her choice. Such evaluation shall be at the person's expense unless otherwise ordered by the court. Any such expert evaluating a person pursuant to this subsection shall have access to the person's records at his or her place of confinement. The court may extend the person's referral or confinement for an additional period not to exceed sixty days, if necessary to permit completion of the separate evaluation. The evaluation shall include the facts upon which conclusions stated therein are based and shall be received by the court at least ten days prior to the expiration of the evaluation period. A copy of such evaluation shall be furnished the prosecuting attorney.

Source:Laws 1981, LB 213, § 3;    Laws 1994, LB 498, § 1.    


Annotations

29-3702. Evidentiary hearing; determination; release or court-ordered treatment; personnel at facility violating order of commitment; contempt.

(1) Prior to the expiration of the evaluation period provided for in section 29-3701, the court shall conduct an evidentiary hearing regarding the condition of the person, at which time a representative of the facility where he or she was evaluated may testify as to the results of the evaluation and the contents of the treatment plan. Based upon the results of the evaluation, evidence adduced at trial, evidence of other omissions, threats, or overt acts indicative of dangerousness, and any other relevant evidence, the court shall determine whether the person is dangerous to himself, herself, or others by reason of mental illness or defect, will be so dangerous in the foreseeable future, or will be so dangerous absent continuing participation in appropriate treatment.

(2) If the court does not find that there is clear and convincing evidence of such dangerousness, as demonstrated by omissions, threats, or overt acts, the court shall unconditionally release the person from further court-ordered treatment. If the court finds clear and convincing evidence of such dangerousness, as demonstrated by omissions, threats, or overt acts, the court shall order that such person participate in an appropriate treatment program specifying conditions of liberty and monitoring consistent with the treatment needs of the person and the safety of the public. The treatment program may involve any public or private facility or program which offers treatment for mental illness and may include an inpatient, residential, day, or outpatient setting. The court shall place the person in the least restrictive available treatment program that is consistent with the treatment needs of the person and the safety of the public. Personnel at the facility providing the treatment program shall obey the court-ordered conditions, and any person who fails to do so shall upon conviction be subject to the full contempt powers of the court.

Source:Laws 1981, LB 213, § 4;    Laws 1994, LB 498, § 2.    


Cross References

Annotations

29-3703. Trial court; person found not responsible by reason of insanity; review records; conduct hearing; evaluation; treatment program; discharge plan; compliance with conditions; reports.

(1) The court which tried a person who is found not responsible by reason of insanity shall annually and may, upon its own motion or upon motion of the person or the prosecuting attorney, review the records of such person and conduct an evidentiary hearing on the status of the person. The court may, upon its own motion or upon a motion by the person or the prosecuting attorney, order an independent psychiatric or psychological evaluation of the person. The court shall consider the results of the evaluation at the evidentiary hearing. When the independent evaluation is conducted pursuant to a motion by the court or the prosecuting attorney, the cost of such independent evaluation shall be the expense of the county. When the evaluation is conducted pursuant to a motion by the person and if the person is not indigent, the cost of the evaluation shall be borne by the person.

(2) If as a result of such hearing the court finds that such person is no longer dangerous to himself, herself, or others by reason of mental illness or defect and will not be so dangerous in the foreseeable future, the court shall order such person unconditionally released from court-ordered treatment. If the court does not so find, the court shall order that such person participate in an appropriate treatment program specifying conditions of liberty and monitoring consistent with the treatment needs of the person and the safety of the public. The treatment program may involve any public or private facility or program which offers treatment for mental illness and may include an inpatient, residential, day, or outpatient setting. The court shall place the person in the least restrictive available treatment program that is consistent with the treatment needs of the person and the safety of the public.

(3) If the person has been treated in a regional center or other appropriate facility and is ordered placed in a less restrictive treatment program, the regional center or other appropriate facility shall develop an individual discharge plan consistent with the order of the court and shall provide the less restrictive treatment program a copy of the discharge plan and all relevant treatment information.

(4) Upon motion of the prosecuting attorney or upon its own motion, but at least annually, the court shall hold a hearing to determine whether the person is complying with the conditions set by the court. Upon an initial showing of probable cause by affidavit or sworn testimony that the person is not complying with the court-ordered conditions, the court may issue a warrant directing the sheriff or any peace officer to take the person into custody and place him or her into a mental health center, regional center, or other appropriate facility with available space where he or she shall be held pending the hearing. When a person has been taken into custody pursuant to this subsection, the hearing shall be held within ten days. Following the hearing, the court shall determine whether placement in the current treatment program should be continued or ceased and whether the conditions of the placement should be continued or modified.

(5) Any treatment program to which a person is committed on July 16, 1994, under this section or section 29-3702 shall submit reports to the trial court and the prosecuting attorney documenting the treatment progress of that person at least annually. Additionally, if the person fails to comply with any condition specified by the court, the court and the prosecuting attorney shall be notified forthwith.

Source:Laws 1981, LB 213, § 5;    Laws 1994, LB 498, § 3.    


Annotations

29-3704. Hearing; person's rights.

At each hearing conducted pursuant to sections 29-3701 to 29-3703, the person shall be entitled to assistance of counsel and such additional rights as are guaranteed by the laws and Constitution of the State of Nebraska and by the United States Constitution.

Source:Laws 1981, LB 213, § 6.    


Annotations

29-3705. Person acquitted prior to May 29, 1981; jurisdiction of trial court; petition; hearing.

The court which tried and acquitted any person who, as of May 29, 1981, stands committed by an order of a mental health board pursuant to the Nebraska Mental Health Commitment Act in consequence of the insanity or derangement which was the ground of the acquittal, shall have jurisdiction over such person for disposition consistent with the provisions of sections 29-2203 and 29-3701 to 29-3704. Within sixty days of May 29, 1981, the county attorney in the jurisdiction of the court which tried and acquitted the person shall file with the court which tried and acquitted the person and shall serve on the person a petition asserting the court's jurisdiction over the person for disposition consistent with sections 29-3701 to 29-3704. The court shall then conduct an evidentiary hearing on the status of the person pursuant to section 29-3703.

Source:Laws 1981, LB 213, § 7;    Laws 2004, LB 1083, § 88.    


Cross References

29-3706. Records of proceedings; part of criminal case records; medical and psychiatric records; how treated.

All pleadings, evidence admitted, orders, judgments, and memoranda of findings and conclusions made in the proceedings held pursuant to sections 29-3701 to 29-3704 shall be made a part of the official record of the underlying criminal case. The court may direct that the medical and psychiatric records not received into evidence at such proceedings be kept confidential and not be available for public inspection.

Source:Laws 1981, LB 213, § 8.    


Annotations

29-3801. Terms, defined.

As used in sections 29-3801 to 29-3809, unless the context otherwise requires:

(1) Director shall mean the Director of Correctional Services; and

(2) Prosecutor shall mean a prosecuting attorney as defined in section 29-104.

Source:Laws 1984, LB 591, § 1.    


Annotations

29-3802. Notice of untried charges and rights; director; duties.

The director shall promptly inform in writing each prisoner in the custody of the Department of Correctional Services of the source and nature of any untried indictment, information, or complaint against him or her of which the director has knowledge and of his or her right to make a request for final disposition thereof.

Source:Laws 1984, LB 591, § 2.    


Annotations

29-3803. Prisoner; request final disposition; director; duties.

Any person who is imprisoned in a facility operated by the Department of Correctional Services may request in writing to the director final disposition of any untried indictment, information, or complaint pending against him or her in this state. Upon receiving any request from a prisoner for final disposition of any untried indictment, information, or complaint, the director shall:

(1) Furnish the prosecutor with a certificate stating the term of commitment under which the prisoner is being held, the time already served on the sentence, the time remaining to be served, the good time earned, the time of the prisoner's parole eligibility, and any decision of the Board of Parole relating to the prisoner;

(2) Send by registered or certified mail, return receipt requested, one copy of the request and the certificate to the court in which the untried indictment, information, or complaint is pending and one copy to the prosecutor charged with the duty of prosecuting it; and

(3) Offer to deliver temporary custody of the prisoner to the appropriate authority in the city or county where the untried indictment, information, or complaint is pending.

Source:Laws 1984, LB 591, § 3.    


Annotations

29-3804. Prosecutor; require prisoner's attendance; procedure.

The prosecutor in a city or county in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner, against whom he or she has lodged a detainer and who is serving a term of imprisonment in any facility operated by the Department of Correctional Services, made available upon presentation of a written request for temporary custody or availability to the director. The court having jurisdiction of such indictment, information, or complaint shall duly approve, record, and transmit the prosecutor's request. Upon receipt of the prosecutor's written request the director shall:

(1) Furnish the prosecutor with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the good time earned, the time of the prisoner's parole eligibility, and any decision of the Board of Parole relating to the prisoner; and

(2) Offer to deliver temporary custody of the prisoner to the appropriate authority in the city or county where the untried indictment, information, or complaint is pending in order that speedy and efficient prosecution may be had.

Source:Laws 1984, LB 591, § 4.    


Annotations

29-3805. Untried charges; trial; when.

Within one hundred eighty days after the prosecutor receives a certificate from the director pursuant to section 29-3803 or 29-3804 or within such additional time as the court for good cause shown in open court may grant, the untried indictment, information, or complaint shall be brought to trial with the prisoner or his or her counsel being present. The parties may stipulate for a continuance or a continuance may be granted on a notice to the attorney of record and an opportunity for him or her to be heard. If the indictment, information, or complaint is not brought to trial within the time period stated in this section, including applicable continuances, no court of this state shall any longer have jurisdiction thereof nor shall the untried indictment, information, or complaint be of any further force or effect and it shall be dismissed with prejudice.

Source:Laws 1984, LB 591, § 5.    


Annotations

29-3806. Temporary custody; conditions; limitations.

The temporary custody referred to in sections 29-3803 and 29-3804 shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or complaints which form the basis of a detainer lodged with the director or for prosecution on any other charge or charges arising out of the same transaction. Except for attendance at court and transportation to or from any place where the prisoner's presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution. However, the prisoner shall not be classified as a pretrial detainee but shall be deemed to remain in custody of the Department of Correctional Services and any escape from temporary custody may be dealt with in the same manner as an escape from the Department of Correctional Services' facility to which he or she was confined.

Source:Laws 1984, LB 591, § 6.    


29-3807. Escape from custody; effect.

Escape from custody by a prisoner subsequent to execution of a request for final disposition of any untried indictment, information, or complaint shall void the request.

Source:Laws 1984, LB 591, § 7.    


29-3808. Mentally ill person; sections not applicable.

No provision of sections 29-3801 to 29-3809 and no remedy made available by sections 29-3801 to 29-3809 shall apply to any person who is adjudged to be mentally ill.

Source:Laws 1984, LB 591, § 8.    


29-3809. Transportation costs; how paid.

The costs of transporting prisoners to and from the city or county in which any untried indictment, information, or complaint is pending as provided in sections 29-3801 to 29-3809 shall be paid by the city or county.

Source:Laws 1984, LB 591, § 9.    


29-3901. Terms, defined.

For purposes of sections 29-3901 to 29-3908:

(1) Court shall mean a district court or a county court;

(2) Felony defendant shall mean a person who is charged by complaint, information, or indictment with or who is under arrest for investigation or on suspicion that he or she may have committed any criminal offense which may be punishable by imprisonment in a Department of Correctional Services adult correctional facility;

(3) Indigent shall mean the inability to retain legal counsel without prejudicing one's financial ability to provide economic necessities for one's self or one's family. Before a felony defendant's initial court appearance, the determination of his or her indigency shall be made by the public defender, but thereafter it shall be made by the court; and

(4) Judge shall mean a judge of the district court, a judge of the county court, or a clerk magistrate.

Source:Laws 1972, LB 1463, § 3;    Laws 1979, LB 241, § 2;    R.S.1943, (1989), § 29-1804.04; Laws 1990, LB 822, § 19;    Laws 1993, LB 31, § 14.    


Annotations

29-3902. Indigent defendant; right to counsel.

At a felony defendant's first appearance before a court, the court shall advise him or her of the right to court-appointed counsel if he or she is indigent.

If he or she asserts indigency, the court shall make a reasonable inquiry to determine his or her financial condition and may require him or her to execute an affidavit of indigency. If the court determines him or her to be indigent, it shall formally appoint the public defender to represent him or her in all proceedings before the court and shall make a notation of such appointment and appearances of the public defender upon the felony complaint. The same procedure shall be followed by the court in misdemeanor cases punishable by imprisonment.

Source:Laws 1972, LB 1463, § 4;    Laws 1975, LB 285, § 2;    Laws 1984, LB 189, § 3;    R.S.1943, (1989), § 29-1804.05; Laws 1990, LB 822, § 20.    


Annotations

29-3903. Indigent defendant; right to counsel; appointment.

At a felony defendant's first appearance before a judge, the judge shall advise him or her of the right to court-appointed counsel if such person is indigent. If he or she asserts indigency, the court shall make a reasonable inquiry to determine such person's financial condition and shall require him or her to execute an affidavit of indigency for filing with the clerk of the court.

If the court determines the defendant to be indigent, it shall formally appoint the public defender or, in counties not having a public defender, an attorney or attorneys licensed to practice law in this state, not exceeding two, to represent the indigent felony defendant at all future critical stages of the criminal proceedings against such defendant, consistent with the provisions of section 23-3402, but appointed counsel other than the public defender must obtain leave of court before being authorized to proceed beyond an initial direct appeal to either the Court of Appeals or the Supreme Court of Nebraska to any further direct, collateral, or postconviction appeals to state or federal courts.

A felony defendant who is not indigent at the time of his or her first appearance before a judge may nevertheless assert his or her indigency at any subsequent stage of felony proceedings, at which time the judge shall consider appointing counsel as otherwise provided in this section.

The judge, upon filing such order for appointment, shall note all appearances of appointed counsel upon the record. If at the time of appointment of counsel the indigent felony defendant and appointed counsel have not had a reasonable opportunity to consult concerning the prosecution, the judge shall continue the arraignment, trial, or other next stage of the felony proceedings for a reasonable period of time to allow for such consultation.

Source:Laws 1972, LB 1463, § 6;    Laws 1979, LB 241, § 3;    Laws 1984, LB 189, § 4;    R.S.1943, (1989), § 29-1804.07; Laws 1990, LB 822, § 21;    Laws 1991, LB 732, § 89; Laws 2018, LB193, § 62.    


Annotations

29-3904. Appointment of other counsel; when.

(1) Nothing in sections 23-3402, 29-3902, and 29-3903 shall prevent any judge from appointing counsel other than the public defender or other substitute counsel when the public defender or counsel initially appointed might otherwise be required to represent conflicting interests or for other good cause shown, from not appointing any counsel for any indigent felony defendant who expressly waives his or her right to such counsel at any stage of felony proceedings, or from appointing the public defender or other counsel as may be required or permitted by other applicable law.

(2) In selecting counsel to represent an indigent felony defendant, the prosecuting attorney shall not have any role whatsoever in the selection or appointment process of the counsel by the court, including, but not limited to, any individual appointment suggestions.

Source:Laws 1972, LB 1463, § 7;    Laws 1979, LB 241, § 4;    R.S.1943, (1989), § 29-1804.08; Laws 1990, LB 822, § 22;    Laws 2003, LB 610, § 1.    


29-3905. Appointed counsel; fees and expenses.

Appointed counsel for an indigent felony defendant other than the public defender shall apply to the district court which appointed him or her for all expenses reasonably necessary to permit him or her to effectively and competently represent his or her client and for fees for services performed pursuant to such appointment, except that if the defendant was not bound over for trial in the district court, the application shall be made in the appointing court. The court, upon hearing the application, shall fix reasonable expenses and fees, and the county board shall allow payment to counsel in the full amount determined by the court.

Source:Laws 1972, LB 1463, § 11;    Laws 1979, LB 241, § 5;    R.S.1943, (1989), § 29-1804.12; Laws 1990, LB 822, § 23.    


Annotations

29-3906. Misdemeanor defendant; indigent; counties with no public defender; court-appointed counsel; compensation.

In counties not having public defenders, the court may appoint an attorney licensed to practice law in this state to represent any indigent person who is charged with a misdemeanor offense punishable by imprisonment. When such a defendant asserts indigency, the court shall make a reasonable inquiry to determine the defendant's financial condition and may require him or her to execute an affidavit of indigency. Attorneys appointed pursuant to this section shall be compensated in the manner provided by section 29-3905 with application being made to the appointing court.

Source:Laws 1975, LB 285, § 3;    Laws 1979, LB 241, § 6;    R.S.1943, (1989), § 29-1804.13; Laws 1990, LB 822, § 24.    


29-3907. Counsel; right to consult with accused privately.

Any public defender, assistant public defender, or other attorney representing an indigent felony defendant who is incarcerated by law enforcement officers or other government officials without bond or in lieu of bond shall have full access to and the right to consult privately with such defendant at all reasonable hours.

Source:Laws 1972, LB 1463, § 8;    R.S.1943, (1989), § 29-1804.09; Laws 1990, LB 822, § 25.    


29-3908. Indigent; reimburse county for costs; when.

Whenever any court finds subsequent to its appointment of the public defender or other counsel to represent a felony defendant that its initial determination of indigency was incorrect or that during the course of representation by appointed counsel the felony defendant has become no longer indigent, the court may order such felony defendant to reimburse the county for all or part of the reasonable cost of providing such representation.

Source:Laws 1972, LB 1463, § 9;    R.S.1943, (1989), § 29-1804.10; Laws 1990, LB 822, § 26.    


Annotations

29-3909. Judicial district public defender; established.

There is hereby established the office of judicial district public defender subject to the provisions of sections 29-3910 to 29-3918.

Source:Laws 1969, c. 234, § 1, p. 863; R.S.1943, (1989), § 29-1805.01; Laws 1990, LB 822, § 27.    


29-3910. Judicial district public defender; determination; district judge; conditions; certification to Governor; salary.

Whenever the district judge or judges determine that a public defender should be named for his, her, or their judicial district, as provided in section 24-301.02, the fact of such determination shall be certified to the Governor. In making the determination, the judge or judges shall consider (1) the number of indigent persons in the district for whom appointment of counsel was necessary in the preceding year, (2) the number and geographic distribution within the district of attorneys available for appointment as counsel on an individual case basis, and (3) the relative expense of providing counsel for the indigent on an individual case basis as compared to the expense of providing a public defender.

At the time of making the determination, the judge or judges shall also fix the salary of the public defender and make a determination whether the office shall be full time or part time. For succeeding terms the district judge or judges shall fix the salary of the public defender at least sixty days prior to the closing of filings for the primary election for such office. All salary determinations shall be filed with the clerk of the district court of each county in the district and shall be available for public inspection.

When it is deemed desirable to have the same public defender for more than one judicial district, the same may be accomplished by having the district judges concerned jointly make the determinations provided for in sections 29-3910 to 29-3918.

Source:Laws 1969, c. 234, § 2, p. 863; R.S.1943, (1989), § 29-1805.02; Laws 1990, LB 822, § 28.    


29-3911. Judicial district public defender; appointment; salary; payment.

Within thirty days following receipt of a certification as provided in section 29-3910, the Governor shall authorize the judge or judges to appoint a public defender for the district. The salary and all expenses, including trial expense and expert witness fees, of the judicial district public defender shall be paid out of funds appropriated to the office of Governor for that purpose.

Source:Laws 1969, c. 234, § 3, p. 864; R.S.1943, (1989), § 29-1805.03; Laws 1990, LB 822, § 29.    


29-3912. Judicial district public defender; office; equipment; personnel.

If necessary office space is not available in a courthouse within the district, the judicial district public defender may rent or lease such space. He or she may also purchase, through the materiel administrator of the Department of Administrative Services, necessary furniture, equipment, books, stationery, and other supplies necessary for the operation of the office. The public defender may employ, with the approval of the appropriate district judge or judges, necessary assistant public defenders and other employees at salaries which are to be approved by the judge or judges. Such judge or judges shall also determine whether assistant public defenders and other employees are to be part time or full time. Public defenders may employ law students authorized by the Supreme Court to engage in a limited form of the practice of law and may enter into agreements with law schools to provide clinical training for their students under the provisions of the Higher Education Act of 1965 and other similar federal programs.

Source:Laws 1969, c. 234, § 4, p. 864; R.S.1943, (1989), § 29-1805.04; Laws 1990, LB 822, § 30;    Laws 2000, LB 654, § 1.    


29-3913. Judicial district public defender; election; term.

The successor to the judicial district public defender initially appointed shall be elected at the next general election and shall take office at the same time as other elected state officers. The term of office of an elected judicial district public defender shall be four years. With the exception of being nominated and elected within their respective districts, candidates for such office shall be nominated and elected as nearly as may be practicable in the same manner as candidates for the office of Governor. Candidates for such office shall file with the Secretary of State as provided in section 32-607 and pay the filing fee provided in section 32-608.

Source:Laws 1969, c. 234, § 5, p. 864; R.S.1943, (1989), § 29-1805.05; Laws 1990, LB 822, § 31;    Laws 1994, LB 76, § 550.    


29-3914. Judicial district public defender; qualifications.

A judicial district public defender shall be a lawyer duly admitted to and engaged in the practice of law in Nebraska.

Source:Laws 1969, c. 234, § 6, p. 865; R.S.1943, (1989), § 29-1805.06; Laws 1990, LB 822, § 32.    


29-3915. Persons entitled to representation.

The following persons who are financially unable to obtain counsel shall be entitled to be represented by a judicial district public defender:

(1) A person charged with a felony, including appeals from convictions for a felony;

(2) A person pursuing a postconviction proceeding under sections 29-3001 to 29-3004 after conviction of a felony, when the public defender after investigation concludes that there may be merit to such a proceeding or when the court in which such proceeding is pending directs the public defender to represent the person;

(3) A minor brought before the juvenile court when neither the minor nor his or her parent or guardian is able to afford counsel; and

(4) A person against whom a petition has been filed with a mental health board as provided in sections 71-945 to 71-947.

Source:Laws 1969, c. 234, § 7, p. 865; R.S.1943, (1989), § 29-1805.07; Laws 1990, LB 822, § 33;    Laws 1991, LB 830, § 29; Laws 2004, LB 1083, § 89.    


Cross References

29-3916. Application for counsel; inquiry by court or magistrate; waiver of counsel.

Any person described in section 29-3915 or any other person entitled by law to representation by counsel may at any time request the court in which the matter is pending or the court in which the person was convicted to appoint the public defender to provide representation. Upon a request for the appointment of counsel, the court or magistrate shall proceed to make appropriate inquiry into the financial circumstances of the applicant who shall submit, unless waived in whole or in part by the court, a financial statement under oath or affirmation setting forth his or her assets and liabilities, source or sources of income, and such other information as may be required by the court or magistrate. The information contained in such a statement shall be confidential and for the exclusive use of the court or magistrate unless it is made to appear to the satisfaction of the court or magistrate that the statement may contain false, misleading, or incomplete information, in which event the person making the statement shall be punished as for contempt if it is established after a hearing that the statement was in whole or in part false, misleading, or incomplete. A refusal to execute a financial statement as provided in this section shall constitute a waiver of the right to the appointment of the public defender.

Source:Laws 1969, c. 234, § 8, p. 865; R.S.1943, (1989), § 29-1805.08; Laws 1990, LB 822, § 34.    


29-3917. Office of public defender; abolished; when.

Any county in a judicial district in which a determination is made that a public defender should be named in accordance with section 29-3910 shall no longer be subject to section 23-3401, and the office created by section 23-3401 shall be abolished as of the date specified in such determination.

Source:Laws 1969, c. 234, § 9, p. 866; R.S.1943, (1989), § 29-1805.09; Laws 1990, LB 822, § 35.    


29-3918. Special counsel; appointment; procedure; cost; payment.

Nothing in sections 29-3910 to 29-3918 shall prevent a court from appointing counsel other than the public defender to represent indigent defendants or other persons by law entitled to legal representation, but appointments of counsel other than the public defender shall be limited to situations in which there are multiple defendants requiring separate representation or when other exigent circumstances are present which in the opinion of the court require appointment of other than the public defender. In all such cases of appointments of other than the public defender, the procedure shall be in accordance with sections 43-272 and 43-273 and the cost of such appointments shall be paid by the county as provided in such sections.

Source:Laws 1969, c. 234, § 10, p. 866; Laws 1988, LB 790, § 2;    R.S.1943, (1989), § 29-1805.10; Laws 1990, LB 822, § 36.    


Cross References

Annotations

29-3919. Act, how cited.

Sections 29-3919 to 29-3933 shall be known and may be cited as the County Revenue Assistance Act.

Source:Laws 1995, LB 646, § 1;    Laws 2001, LB 335, § 2.    


29-3920. Legislative findings.

The Legislature finds that:

(1) County property owners should be given some relief from the obligation of providing mandated indigent defense services which in most instances are required because of state laws establishing crimes and penalties;

(2) Property tax relief can be accomplished if the state begins to assist the counties with the obligation of providing indigent defense services required by state laws establishing crimes and penalties;

(3) Property tax relief in the form of state assistance to the counties of Nebraska in providing for indigent defense services will also increase accountability because the state, which is the governmental entity responsible for passing criminal statutes, will likewise be responsible for paying some of the costs;

(4) Property tax relief in the form of state assistance to the counties of Nebraska in providing for indigent defense services will also improve inconsistent and inadequate funding of indigent defense services by the counties;

(5) Property tax relief in the form of state assistance to the counties of Nebraska in providing for indigent defense services will also lessen the impact on county property taxpayers of the cost of a high profile death penalty case which can significantly affect the finances of the counties; and

(6) To accomplish property tax relief in the form of the state assisting the counties of Nebraska in providing for indigent defense services, the Commission on Public Advocacy Operations Cash Fund should be established to fund the operation of the Commission on Public Advocacy and to fund reimbursement requests as determined by section 29-3933.

Source:Laws 1995, LB 646, § 2;    Laws 2002, LB 876, § 64;    Laws 2003, LB 760, § 9;    Laws 2015, LB268, § 26;    Referendum 2016, No. 426.

Note: The changes made to section 29-3920 by Laws 2015, LB 268, section 26, have been omitted because of the vote on the referendum at the November 2016 general election.


29-3921. Commission on Public Advocacy Operations Cash Fund; created; use; investment; transfers; use.

(1) The Commission on Public Advocacy Operations Cash Fund is created. The fund shall be used for the operations of the commission, except that transfers may be made from the fund to the General Fund at the direction of the Legislature through June 30, 2011. The Commission on Public Advocacy Operations Cash Fund shall consist of money remitted pursuant to section 33-156. It is the intent of the Legislature that the commission shall be funded solely from the fund. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

(2) On July 1, 2011, or as soon thereafter as administratively possible, the State Treasurer shall transfer one hundred thousand dollars from the Commission on Public Advocacy Operations Cash Fund to the Supreme Court Education Fund. The State Court Administrator shall use these funds to assist the juvenile justice system in providing prefiling and diversion programming designed to reduce excessive absenteeism and unnecessary involvement with the juvenile justice system.

(3) The State Treasurer shall transfer the following amounts from the Commission on Public Advocacy Operations Cash Fund to the Court Appointed Special Advocate Fund:

(a) On July 1, 2011, or as soon thereafter as administratively possible, one hundred thousand dollars; and

(b) On July 1, 2012, or as soon thereafter as administratively possible, two hundred thousand dollars.

(4) On July 1, 2012, or as soon thereafter as administratively possible, the State Treasurer shall transfer sixty thousand dollars from the Commission on Public Advocacy Operations Cash Fund to the Nebraska State Patrol Cash Fund.

The Nebraska State Patrol shall use such funds to contract with the University of Nebraska to study sex offender recidivism data before and after the passage of Laws 2009, LB285, which changed the Nebraska sex offender classification system from an evaluation of risk assessment system to an offense-based assessment system in the attempt by the state to comply with federal requirements under the Adam Walsh Child Protection and Safety Act of 2006.

Source:Laws 1995, LB 646, § 3;    Laws 1997, LB 108, § 1;    Laws 2001, LB 659, § 14;    Laws 2002, LB 876, § 65;    Laws 2003, LB 760, § 10;    Laws 2008, LB961, § 2;    Laws 2009, First Spec. Sess., LB3, § 16;    Laws 2011, LB463, § 3;    Laws 2012, LB969, § 5.    


Cross References

29-3922. Terms, defined.

For purposes of the County Revenue Assistance Act:

(1) Chief counsel means an attorney appointed to be the primary administrative officer of the commission pursuant to section 29-3928;

(2) Commission means the Commission on Public Advocacy;

(3) Commission staff means attorneys, investigators, and support staff who are performing work for the capital litigation division, appellate division, DNA testing division, and major case resource center;

(4) Contracting attorney means an attorney contracting to act as a public defender pursuant to sections 23-3404 to 23-3408;

(5) Court-appointed attorney means an attorney other than a contracting attorney or a public defender appointed by the court to represent an indigent person;

(6) Indigent defense services means legal services provided to indigent persons by an indigent defense system in capital cases, felony cases, misdemeanor cases, juvenile cases, mental health commitment cases, child support enforcement cases, and paternity establishment cases;

(7) Indigent defense system means a system of providing services, including any services necessary for litigating a case, by a contracting attorney, court-appointed attorney, or public defender;

(8) Indigent person means a person who is indigent and unable to obtain legal counsel as determined pursuant to subdivision (3) of section 29-3901; and

(9) Public defender means an attorney appointed or elected pursuant to sections 23-3401 to 23-3403.

Source:Laws 1995, LB 646, § 4;    Laws 2001, LB 335, § 3;    Laws 2001, LB 659, § 15;    Laws 2009, LB154, § 2;    Laws 2015, LB268, § 27;    Referendum 2016, No. 426.

Note: The changes made to section 29-3922 by Laws 2015, LB 268, section 27, have been omitted because of the vote on the referendum at the November 2016 general election.


29-3923. Commission on Public Advocacy; created; duties.

The Commission on Public Advocacy is created. The commission shall provide legal services and resources to assist counties in fulfilling their obligation to provide for effective assistance of counsel for indigent persons.

Source:Laws 1995, LB 646, § 5.    


Cross References

29-3924. Commission; members; term.

The commission shall consist of nine members appointed by the Governor from a list of attorneys submitted by the executive council of the Nebraska State Bar Association after consultation with the board of directors of the Nebraska Criminal Defense Attorneys Association. A member shall be appointed from each of the six Supreme Court judicial districts, and three members shall be appointed at large. The executive council of the Nebraska State Bar Association shall ensure that the selection process promotes appointees who are independent from partisan political influence. To be eligible for appointment, a person shall be a member of the Nebraska State Bar Association who has substantial experience in criminal defense work and, for appointments made after September 13, 1997, substantial experience in civil legal matters that commonly affect low-income persons and, at the time of selection or at any time during the term of office, shall not be a prosecutor, law enforcement official, or judge. All members shall be committed to the principle of providing indigent defense services and civil legal services to low-income persons free from unwarranted judicial or political influence. Each member shall serve for a term of six years, except that three of the initial appointees shall serve terms of two years and three shall serve terms of four years as designated by the Governor. Members may be removed from the commission by the Governor for cause.

Source:Laws 1995, LB 646, § 6;    Laws 1997, LB 729, § 7.    


29-3925. Commission; chairperson; expenses.

The Governor shall designate one of the members of the commission as the chairperson. The members of the commission shall be reimbursed for expenses incurred in the performance of their duties as provided in sections 81-1174 to 81-1177.

Source:Laws 1995, LB 646, § 7;    Laws 2020, LB381, § 24.    


29-3926. Commission; quorum.

Five members of the commission constitute a quorum for the transaction of business. The commission may act by a majority of the members present at any meeting at which a quorum is in attendance.

Source:Laws 1995, LB 646, § 8.    


29-3927. Commission; duties.

(1) With respect to its duties under section 29-3923, the commission shall:

(a) Adopt and promulgate rules and regulations for its organization and internal management and rules and regulations governing the exercise of its powers and the fulfillment of its purpose;

(b) Appoint and abolish such advisory committees as may be necessary for the performance of its functions and delegate appropriate powers and duties to them;

(c) Accept and administer loans, grants, and donations from the United States and its agencies, the State of Nebraska and its agencies, and other sources, public and private, for carrying out the functions of the commission;

(d) Enter into contracts, leases, and agreements necessary, convenient, or desirable for carrying out its purposes and the powers granted under this section with agencies of state or local government, corporations, or persons;

(e) Acquire, hold, and dispose of personal property in the exercise of its powers;

(f) Provide legal services to indigent persons through the divisions in section 29-3930; and

(g) Adopt guidelines and standards for county indigent defense systems, including, but not limited to, standards relating to the following: The use and expenditure of funds appropriated by the Legislature to reimburse counties which qualify for reimbursement; attorney eligibility and qualifications for court appointments; compensation rates for salaried public defenders, contracting attorneys, and court-appointed attorneys and overall funding of the indigent defense system; maximum caseloads for all types of systems; systems administration, including rules for appointing counsel, awarding defense contracts, and reimbursing defense expenses; conflicts of interest; continuing legal education and training; and availability of supportive services and expert witnesses.

(2) The standards adopted by the commission under subdivision (1)(g) of this section are intended to be used as a guide for the proper methods of establishing and operating indigent defense systems. The standards are not intended to be used as criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.

(3) With respect to its duties related to the provision of civil legal services to eligible low-income persons, the commission shall have such powers and duties as described in sections 25-3001 to 25-3004.

(4) The commission may adopt and promulgate rules and regulations governing the Legal Education for Public Service and Rural Practice Loan Repayment Assistance Act which are recommended by the Legal Education for Public Service and Rural Practice Loan Repayment Assistance Board pursuant to the act. The commission shall have the powers and duties provided in the act.

Source:Laws 1995, LB 646, § 9;    Laws 1997, LB 729, § 8;    Laws 2001, LB 335, § 4;    Laws 2002, LB 876, § 66;    Laws 2008, LB1014, § 28;    Laws 2009, LB154, § 3;    Laws 2014, LB907, § 10.    


Cross References

29-3928. Chief counsel; qualifications; salary.

The commission shall appoint a chief counsel. The responsibilities and duties of the chief counsel shall be defined by the commission and shall include the overall supervision of the workings of the various divisions of the commission. The chief counsel shall be qualified for his or her position, shall have been licensed to practice law in the State of Nebraska for at least five years prior to the effective date of the appointment, and shall be experienced in the practice of criminal defense, including the defense of capital cases. The chief counsel shall serve at the pleasure of the commission. The salary of the chief counsel shall be set by the commission.

Source:Laws 1995, LB 646, § 10;    Laws 2015, LB268, § 28;    Referendum 2016, No. 426.

Note: The changes made to section 29-3928 by Laws 2015, LB 268, section 28, have been omitted because of the vote on the referendum at the November 2016 general election.


29-3929. Chief counsel; duties.

The primary duties of the chief counsel shall be to provide direct legal services to indigent defendants, and the chief counsel shall:

(1) Supervise the operations of the appellate division, the capital litigation division, the DNA testing division, and the major case resource center;

(2) Prepare a budget and disburse funds for the operations of the commission;

(3) Present to the commission an annual report on the operations of the commission, including an accounting of all funds received and disbursed, an evaluation of the cost-effectiveness of the commission, and recommendations for improvement;

(4) Convene or contract for conferences and training seminars related to criminal defense;

(5) Perform other duties as directed by the commission;

(6) Establish and administer projects and programs for the operation of the commission;

(7) Appoint and remove employees of the commission and delegate appropriate powers and duties to them;

(8) Adopt and promulgate rules and regulations for the management and administration of policies of the commission and the conduct of employees of the commission;

(9) Transmit monthly to the commission a report of the operations of the commission for the preceding calendar month;

(10) Execute and carry out all contracts, leases, and agreements authorized by the commission with agencies of federal, state, or local government, corporations, or persons; and

(11) Exercise all powers and perform all duties necessary and proper in carrying out his or her responsibilities.

Source:Laws 1995, LB 646, § 11;    Laws 2001, LB 659, § 16;    Laws 2015, LB268, § 29;    Referendum 2016, No. 426.

Note: The changes made to section 29-3929 by Laws 2015, LB 268, section 29, have been omitted because of the vote on the referendum at the November 2016 general election.


29-3930. Commission; divisions established.

The following divisions are established within the commission:

(1) The capital litigation division shall be available to assist in the defense of capital cases in Nebraska, subject to caseload standards of the commission;

(2) The appellate division shall be available to prosecute appeals to the Court of Appeals and the Supreme Court, subject to caseload standards of the commission;

(3) The violent crime and drug defense division shall be available to assist in the defense of certain violent and drug crimes as defined by the commission, subject to the caseload standards of the commission;

(4) The DNA testing division shall be available to assist in representing persons who are indigent who have filed a motion pursuant to the DNA Testing Act, subject to caseload standards; and

(5) The major case resource center shall be available to assist public defenders, contracting attorneys, or court-appointed attorneys with the defense of a felony offense, subject to caseload standards of the commission.

Source:Laws 1995, LB 646, § 12;    Laws 2001, LB 659, § 17;    Laws 2003, LB 760, § 11;    Laws 2015, LB268, § 30;    Referendum 2016, No. 426.

Note: The changes made to section 29-3930 by Laws 2015, LB 268, section 30, have been omitted because of the vote on the referendum at the November 2016 general election.


Cross References

29-3931. Transferred to section 33-156.

29-3932. Repealed. Laws 2009, LB 154, § 27.

29-3933. Request for reimbursement; requirements.

(1) Any county which intends to request reimbursement for a portion of its expenditures for its indigent defense system must comply with this section.

(2) In order to assist the Commission on Public Advocacy in its budgeting process for determining future reimbursement amounts, after July 1, 2002, and before July 15, 2002, and for each year thereafter in which the county intends to seek reimbursement for a portion of its expenditures for indigent defense services in felony cases for the next fiscal year, the county shall present to the Commission on Public Advocacy (a) a plan, in a format approved by the commission, describing how the county intends to provide indigent defense services in felony cases, (b) a statement of intent declaring that the county intends to comply with the standards set by the commission for felony cases and that the county intends to apply for reimbursement, and (c) a projection of the total dollar amount of expenditures for that county's indigent defense services in felony cases for the next fiscal year.

(3) The commission may conduct whatever investigation is necessary and may require certifications by key individuals in the criminal justice system, in order to determine if the county is in compliance with the standards. If a county is certified by the commission as having met the standards established by the commission for felony cases, the county shall be eligible for reimbursement according to the following schedule and procedures: The county clerk of the county seeking reimbursement may submit, on a quarterly basis, a certified request to the commission, for reimbursement from funds appropriated by the Legislature, for an amount equal to one-fourth of the county's actual expenditures for indigent defense services in felony cases.

(4) Upon certification by the county clerk of the amount of the expenditures, and a determination by the commission that the request is in compliance with the standards set by the commission for felony cases, the commission shall quarterly authorize an amount of reimbursement to the county as set forth in this section.

(5) If the appropriated funds are insufficient in any quarter to meet the amount needed for full payment of all county reimbursements for net expenditures that are certified for that quarter, the commission shall pay the counties their pro rata share of the remaining funds based upon the percentage of the county's certified request in comparison to the total certified requests for that quarter.

(6) For purposes of section 13-519, for any year in which a county first seeks reimbursement from funds appropriated by the Legislature or has previously qualified for reimbursement and is seeking additional reimbursement for improving its indigent criminal defense program, the last prior year's total of restricted funds shall be the last prior year's total of restricted funds plus any increased amount budgeted for indigent defense services that is required to develop a plan and meet the standards necessary to qualify for reimbursement of expenses from funds appropriated by the Legislature. This subsection applies to fiscal years beginning prior to July 1, 2025.

Source:Laws 2001, LB 335, § 6;    Laws 2002, LB 876, § 69;    Laws 2024, First Spec. Sess., LB34, § 17.    
Effective Date: August 21, 2024


29-4001. Act, how cited.

Sections 29-4001 to 29-4014 shall be known and may be cited as the Sex Offender Registration Act.

Source:Laws 1996, LB 645, § 1;    Laws 2006, LB 1199, § 17;    Laws 2009, LB97, § 23.    


Annotations

29-4001.01 . Terms, defined.

For purposes of the Sex Offender Registration Act:

(1) Aggravated offense means any registrable offense under section 29-4003 which involves the penetration of, direct genital touching of, oral to anal contact with, or oral to genital contact with (a) a victim age thirteen years or older without the consent of the victim, (b) a victim under the age of thirteen years, or (c) a victim who the sex offender knew or should have known was mentally or physically incapable of resisting or appraising the nature of his or her conduct;

(2) DNA sample has the same meaning as in section 29-4103;

(3) Habitual living location means any place that an offender may stay for a period of more than three days even though the sex offender maintains a separate permanent address or temporary domicile;

(4) Minor means a person under eighteen years of age;

(5) State DNA Database means the database established pursuant to section 29-4104; and

(6) Temporary domicile means any place at which the person actually lives or stays for a period of at least three working days.

Source:Laws 2009, LB97, § 24;    Laws 2009, LB285, § 3;    Laws 2015, LB292, § 5.    


Annotations

29-4002. Legislative findings.

The Legislature finds that sex offenders present a high risk to commit repeat offenses. The Legislature further finds that efforts of law enforcement agencies to protect their communities, conduct investigations, and quickly apprehend sex offenders are impaired by the lack of available information about individuals who have pleaded guilty to or have been found guilty of sex offenses and who live, work, or attend school in their jurisdiction. The Legislature further finds that state policy should assist efforts of local law enforcement agencies to protect their communities by requiring sex offenders to register with local law enforcement agencies as provided by the Sex Offender Registration Act.

Source:Laws 1996, LB 645, § 2;    Laws 2002, LB 564, § 2.    


29-4003. Applicability of act.

(1)(a) The Sex Offender Registration Act applies to any person who on or after January 1, 1997:

(i) Has ever pled guilty to, pled nolo contendere to, or been found guilty of any of the following:

(A) Kidnapping of a minor pursuant to section 28-313, except when the person is the parent of the minor and was not convicted of any other offense in this section;

(B) False imprisonment of a minor pursuant to section 28-314 or 28-315;

(C) Sexual assault pursuant to section 28-319 or 28-320;

(D) Sexual abuse by a school employee pursuant to section 28-316.01;

(E) Sexual assault of a child in the second or third degree pursuant to section 28-320.01;

(F) Sexual assault of a child in the first degree pursuant to section 28-319.01;

(G) Sexual abuse of a vulnerable adult or senior adult pursuant to subdivision (1)(c) of section 28-386;

(H) Incest of a minor pursuant to section 28-703;

(I) Pandering of a minor pursuant to section 28-802;

(J) Visual depiction of sexually explicit conduct of a child pursuant to section 28-1463.03 or subdivision (2)(b) or (c) of section 28-1463.05;

(K) Knowingly possessing any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers pursuant to subsection (1) or (4) of section 28-813.01;

(L) Criminal child enticement pursuant to section 28-311;

(M) Child enticement by means of an electronic communication device pursuant to section 28-320.02;

(N) Debauching a minor pursuant to section 28-805; or

(O) Attempt, solicitation, aiding or abetting, being an accessory, or conspiracy to commit an offense listed in subdivisions (1)(a)(i)(A) through (1)(a)(i)(N) of this section;

(ii) Has ever pled guilty to, pled nolo contendere to, or been found guilty of any offense that is substantially equivalent to a registrable offense under subdivision (1)(a)(i) of this section by any village, town, city, state, territory, commonwealth, or other jurisdiction of the United States, by the United States Government, by court-martial or other military tribunal, or by a foreign jurisdiction, notwithstanding a procedure comparable in effect to that described under section 29-2264 or any other procedure to nullify a conviction other than by pardon;

(iii) Is incarcerated in a jail, a penal or correctional facility, or any other public or private institution or is under probation or parole as a result of pleading guilty to or being found guilty of a registrable offense under subdivision (1)(a)(i) or (ii) of this section prior to January 1, 1997; or

(iv) Enters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States.

(b) In addition to the registrable offenses under subdivision (1)(a) of this section, the Sex Offender Registration Act applies to any person who on or after January 1, 2010:

(i)(A) Except as provided in subdivision (1)(b)(i)(B) of this section, has ever pled guilty to, pled nolo contendere to, or been found guilty of any of the following:

(I) Murder in the first degree pursuant to section 28-303;

(II) Murder in the second degree pursuant to section 28-304;

(III) Manslaughter pursuant to section 28-305;

(IV) Assault in the first degree pursuant to section 28-308;

(V) Assault in the second degree pursuant to section 28-309;

(VI) Assault in the third degree pursuant to section 28-310;

(VII) Stalking pursuant to section 28-311.03;

(VIII) Violation of section 28-311.08 requiring registration under the act pursuant to subsection (6) of section 28-311.08;

(IX) Kidnapping pursuant to section 28-313;

(X) False imprisonment pursuant to section 28-314 or 28-315;

(XI) Sexual abuse of an inmate or parolee in the first degree pursuant to section 28-322.02;

(XII) Sexual abuse of an inmate or parolee in the second degree pursuant to section 28-322.03;

(XIII) Sexual abuse of a protected individual pursuant to section 28-322.04;

(XIV) Incest pursuant to section 28-703;

(XV) Child abuse pursuant to subdivision (1)(d) or (e) of section 28-707;

(XVI) Enticement by electronic communication device pursuant to section 28-833; or

(XVII) Attempt, solicitation, aiding or abetting, being an accessory, or conspiracy to commit an offense listed in subdivisions (1)(b)(i)(A)(I) through (1)(b)(i)(A)(XVI) of this section.

(B) In order for the Sex Offender Registration Act to apply to the offenses listed in subdivisions (1)(b)(i)(A)(I), (II), (III), (IV), (V), (VI), (VII), (IX), and (X) of this section, a court shall have found that evidence of sexual penetration or sexual contact, as those terms are defined in section 28-318, was present in the record, which shall include consideration of the factual basis for a plea-based conviction and information contained in the presentence report;

(ii) Has ever pled guilty to, pled nolo contendere to, or been found guilty of any offense that is substantially equivalent to a registrable offense under subdivision (1)(b)(i) of this section by any village, town, city, state, territory, commonwealth, or other jurisdiction of the United States, by the United States Government, by court-martial or other military tribunal, or by a foreign jurisdiction, notwithstanding a procedure comparable in effect to that described under section 29-2264 or any other procedure to nullify a conviction other than by pardon; or

(iii) Enters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States.

(c) In addition to the registrable offenses under subdivisions (1)(a) and (b) of this section, the Sex Offender Registration Act applies to any person who on or after January 1, 2020:

(i) Has ever pled guilty to, pled nolo contendere to, or been found guilty of sexual abuse of a detainee under section 28-322.05; or

(ii) Has ever pled guilty to, pled nolo contendere to, or been found guilty of any offense that is substantially equivalent to a registrable offense under subdivision (1)(c)(i) of this section by any village, town, city, state, territory, commonwealth, or other jurisdiction of the United States, by the United States Government, by court-martial or other military tribunal, or by a foreign jurisdiction, notwithstanding a procedure comparable in effect to that described under section 29-2264 or any other procedure to nullify a conviction other than by pardon.

(d) In addition to the registrable offenses under subdivisions (1)(a), (b), and (c) of this section, the Sex Offender Registration Act applies to any person who on or after January 1, 2023:

(i) Has ever pled guilty to, pled nolo contendere to, or been found guilty of human trafficking under subsection (1) or (2) of section 28-831, and the court determines either by notification of sex offender registration responsibilities or notation in the sentencing order that the human trafficking was sex trafficking or sex trafficking of a minor and not solely labor trafficking or labor trafficking of a minor; or

(ii) Has ever pled guilty to, pled nolo contendere to, or been found guilty of any offense that is substantially equivalent to a registrable offense under subdivision (1)(d)(i) of this section by any village, town, city, state, territory, commonwealth, or other jurisdiction of the United States, by the United States Government, by court-martial or other military tribunal, or by a foreign jurisdiction, notwithstanding a procedure comparable in effect to that described under section 29-2264 or any other procedure to nullify a conviction other than by pardon.

(2) A person appealing a conviction of a registrable offense under this section shall be required to comply with the act during the appeals process.

Source:Laws 1996, LB 645, § 3;    Laws 2002, LB 564, § 3;    Laws 2004, LB 943, § 9;    Laws 2005, LB 713, § 4;    Laws 2006, LB 1199, § 18;    Laws 2009, LB97, § 25;    Laws 2009, LB285, § 4;    Laws 2011, LB61, § 2;    Laws 2014, LB998, § 6;    Laws 2016, LB934, § 11;    Laws 2019, LB519, § 14;    Laws 2019, LB630, § 7;    Laws 2020, LB881, § 26;    Laws 2022, LB1246, § 2.    


Annotations

29-4004. Registration; location; sheriff; duties; Nebraska State Patrol; duties; name-change order; treatment.

(1) Any person subject to the Sex Offender Registration Act shall register within three working days after becoming subject to the act at a location designated by the Nebraska State Patrol for purposes of accepting such registration.

(2) Any person required to register under the act shall inform the sheriff of the county in which he or she resides, in person, and complete a form as prescribed by the Nebraska State Patrol for such purpose, if he or she has a new address, temporary domicile, or habitual living location, within three working days before the change. The sheriff shall submit such information to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner prescribed by the Nebraska State Patrol for such purpose.

(3) Any person required to register under the act shall inform the sheriff of the county in which he or she resides, in person, and complete a form as prescribed by the Nebraska State Patrol for such purpose, if he or she has a new address, temporary domicile, or habitual living location in a different county in this state, within three working days before the address change. The sheriff shall submit such information to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner as prescribed by the Nebraska State Patrol for such purpose. If the change in address, temporary domicile, or habitual living location is to a location within the State of Nebraska, the division shall notify the sheriff of each affected county of the new address, temporary domicile, or habitual living location, within three working days. The person shall report to the county sheriff of his or her new county of residence and register with such county sheriff within three working days after the address change.

(4) Any person required to register under the act shall inform the sheriff of the county in which he or she resides, in person, and complete a form as prescribed by the Nebraska State Patrol for such purpose, if he or she moves to a new out-of-state address, within three working days before the address change. The sheriff shall submit such information to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner as prescribed by the Nebraska State Patrol for such purpose. If the change in address, temporary domicile, or habitual living location is to a location outside of the State of Nebraska, the division shall notify the sheriff of each affected county in Nebraska and the other state's, country's, or territory's central repository for sex offender registration of the new out-of-state address, temporary domicile, or habitual living location, within three working days.

(5) Any person required to register under the act who is employed, carries on a vocation, or attends school shall inform, in person, the sheriff of the county in which he or she is employed, carries on a vocation, or attends school and complete a form as prescribed by the Nebraska State Patrol for such purpose, within three working days after becoming employed, carrying on a vocation, or attending school. The person shall also notify the sheriff, in person, of any changes in employment, vocation, or school of attendance, and complete a form as prescribed by the Nebraska State Patrol for such purpose, within three working days after the change. The sheriff shall submit such information to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner as prescribed by the Nebraska State Patrol for such purpose.

(6) Any person required to register under the act who is residing, has a temporary domicile, or is habitually living in another state, and is employed, carries on a vocation, or attends school in this state, shall report and register, in person, with the sheriff of the county in which he or she is employed, carries on a vocation, or attends school in this state and complete a form as prescribed by the Nebraska State Patrol for such purpose, within three working days after becoming employed, carrying on a vocation, or attending school. The person shall also notify the sheriff of any changes in employment, vocation, or school of attendance, in person, and complete a form as prescribed by the Nebraska State Patrol for such purpose, within three working days after the change. The sheriff shall submit such information to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner as prescribed by the Nebraska State Patrol for such purpose. For purposes of this subsection:

(a) Attends school means enrollment in any educational institution in this state on a full-time or part-time basis; and

(b) Is employed or carries on a vocation means any full-time or part-time employment, with or without compensation, which lasts for a duration of more than fourteen days or for an aggregate period exceeding thirty days in a calendar year.

(7) Any person incarcerated for a registrable offense under section 29-4003 in a jail, penal or correctional facility, or other public or private institution shall be registered by the jail, penal or correctional facility, or public or private institution prior to his or her discharge, parole, furlough, work release, or release. The person shall be informed and information shall be obtained as required in section 29-4006.

(8) Any person required to register or who is registered under the act, but is incarcerated for more than three working days, shall inform the sheriff of the county in which he or she is incarcerated, in writing, within three working days after incarceration, of his or her incarceration and his or her expected release date, if any such date is available. The sheriff shall forward the information regarding incarceration to the sex offender registration and community notification division of the Nebraska State Patrol immediately on the day on which it was received and in a manner prescribed by the Nebraska State Patrol for such purpose.

(9) Any person required to register or who is registered under the act who no longer has a residence, temporary domicile, or habitual living location shall report such change in person to the sheriff of the county in which he or she is located, within three working days after such change in residence, temporary domicile, or habitual living location. Such person shall update his or her registration, in person, to the sheriff of the county in which he or she is located, on a form approved by the sex offender registration and community notification division of the Nebraska State Patrol at least once every thirty calendar days during the time he or she remains without residence, temporary domicile, or habitual living location.

(10) Each registering entity shall forward all written information, photographs, and fingerprints obtained pursuant to the act to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner prescribed by the Nebraska State Patrol for such purpose. The information shall be forwarded on forms furnished by the division. The division shall maintain a central registry of sex offenders required to register under the act. Any collected DNA samples shall be forwarded to the State DNA Database.

(11) The sex offender registration and community notification division of the Nebraska State Patrol shall determine whether a name-change order received from the clerk of a district court pursuant to section 25-21,271 is for a person in the central registry of sex offenders and, if so, shall include the changed name with the former name in the registry, file or cross-reference the information under both names, and notify the sheriff of the county in which such person then resides.

Source:Laws 1996, LB 645, § 4;    Laws 2002, LB 564, § 4;    Laws 2005, LB 713, § 5;    Laws 2006, LB 1199, § 19;    Laws 2009, LB285, § 5;    Laws 2010, LB147, § 4.    


29-4005. Registration duration; reduction in time; request; proof.

(1)(a) Except as provided in subsection (2) of this section, any person to whom the Sex Offender Registration Act applies shall be required to register during any period of supervised release, probation, or parole and shall continue to comply with the act for the period of time after the date of discharge from probation, parole, or supervised release or release from incarceration, whichever date is most recent, as set forth in subdivision (b) of this subsection. A sex offender shall keep the registration current for the full registration period but shall not be subject to verification procedures during any time the sex offender is in custody or under an inpatient civil commitment, unless the sex offender is allowed a reduction in his or her registration period under subsection (2) of this section.

(b) The full registration period is as follows:

(i) Fifteen years, if the sex offender was convicted of a registrable offense under section 29-4003 not punishable by imprisonment for more than one year;

(ii) Twenty-five years, if the sex offender was convicted of a registrable offense under section 29-4003 punishable by imprisonment for more than one year; or

(iii) Life, if the sex offender was convicted of a registrable offense under section 29-4003 punishable by imprisonment for more than one year and was convicted of an aggravated offense or had a prior sex offense conviction or has been determined to be a lifetime registrant in another state, territory, commonwealth, or other jurisdiction of the United States, by the United States Government, by court-martial or other military tribunal, or by a foreign jurisdiction.

(2) A sex offender who is required to register for fifteen years may request a reduction in the registration period to ten years upon completion of ten years of the registration period after the date of discharge from probation, parole, supervised release, or incarceration, whichever date is most recent. The sex offender shall make the request to the Nebraska State Patrol. The sex offender shall provide proof that, during such registration period, he or she:

(a) Was not convicted of any offense for which imprisonment for more than one year could have been imposed;

(b) Was not convicted of any sex offense;

(c) Successfully completed any period of probation, parole, supervised release, or incarceration; and

(d) Successfully completed an appropriate sex offender treatment program.

(3) Any time period when any person who is required to register under the act knowingly or willfully fails to comply with such registration requirement shall not be counted as completed registration time and shall be used to recalculate the registration period. The recalculation shall be completed by the sex offender registration and community notification division of the Nebraska State Patrol.

Source:Laws 1996, LB 645, § 5;    Laws 2002, LB 564, § 5;    Laws 2006, LB 1199, § 20;    Laws 2009, LB285, § 6.    


Annotations

29-4006. Registration format; contents; verification; name change; duties; information provided to sheriff; violation; warrant.

(1) Registration information required by the Sex Offender Registration Act shall be entered into a database in a format approved by the sex offender registration and community notification division of the Nebraska State Patrol and shall include, but not be limited to, the following information:

(a) The legal name and all aliases which the person has used or under which the person has been known;

(b) The person's date of birth and any alias dates of birth;

(c) The person's social security number;

(d) The address of each residence at which the person resides, has a temporary domicile, has a habitual living location, or will reside;

(e) The name and address of any place where the person is an employee or will be an employee, including work locations without a single worksite;

(f) The name and address of any place where the person is a student or will be a student;

(g) The license plate number and a description of any vehicle owned or operated by the person and its regular storage location;

(h) The person's motor vehicle operator's license number, including the person's valid motor vehicle operator's license or state identification card submitted for photocopying;

(i) The person's original travel and immigration documents submitted for photocopying;

(j) The person's original professional licenses or certificates submitted for photocopying;

(k) The person's telephone numbers;

(l) A physical description of the person;

(m) A digital link to the text of the provision of law defining the criminal offense or offenses for which the person is registered under the act;

(n) Access to the criminal history of the person, including the date of all arrests and convictions, the status of parole, probation, or supervised release, registration status, and the existence of any outstanding arrest warrants for the person;

(o) A current photograph of the person;

(p) A set of fingerprints and palm prints of the person; and

(q) A DNA sample of the person.

(2) Except as provided in section 29-4005, the registration information shall be verified as provided in subsections (3), (4), and (5) of this section for the duration of the registration period. The person shall appear in person for such verification at the office of the sheriff of the county in which he or she resides, has a temporary domicile, or is habitually living for purposes of accepting verifications and shall have his or her photograph and fingerprints taken upon request of verification personnel.

(3) A person required to register under the act for fifteen years shall report every twelve months in the month of his or her birth, in person, to the office of the sheriff of the county in which he or she resides for purposes of accepting verifications, regardless of the original registration month. The sheriff shall submit such verification information to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner prescribed by the Nebraska State Patrol for such purpose.

(4) A person required to register under the act for twenty-five years shall report, in person, every six months to the office of the sheriff of the county in which he or she resides for purposes of accepting verification. The person shall report, in person, in the month of his or her birth and in the sixth month following the month of his or her birth, regardless of the original registration month. The sheriff shall submit such verification information to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner prescribed by the Nebraska State Patrol for such purpose.

(5) A person required to register under the act for life shall report, in person, every three months to the office of the sheriff of the county in which he or she resides for purposes of accepting verification. The person shall report, in person, in the month of his or her birth and every three months following the month of his or her birth, regardless of the original registration month. The sheriff shall submit such verification information to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner prescribed by the Nebraska State Patrol for such purpose.

(6) The verification form shall be signed by the person required to register under the act and state whether the address last reported to the division is still correct.

(7) Upon receipt of registration and confirmation of the registry requirement, the sex offender registration and community notification division of the Nebraska State Patrol shall notify the person by certified mail of his or her registry duration and verification schedule.

(8) If the person required to register under the act fails to report in person as required in subsection (3), (4), or (5) of this section, the person shall be in violation of this section.

(9) If the person required to register under the act falsifies the registration or verification information or form or fails to provide or timely update law enforcement of any of the information required to be provided by the Sex Offender Registration Act, the person shall be in violation of this section.

(10) The verification requirements of a person required to register under the act shall not apply during periods of such person's incarceration or inpatient civil commitment. Verification shall be resumed as soon as such person is placed on any type of supervised release, parole, or probation or outpatient civil commitment or is released from incarceration or civil commitment. Prior to any type of release from incarceration or inpatient civil commitment, the person shall report a change of address, in writing, to the sheriff of the county in which he or she is incarcerated and the sheriff of the county in which he or she resides, has a temporary domicile, or has a habitual living location. The sheriff shall submit the change of address to the sex offender registration and community notification division of the Nebraska State Patrol on the day it is received and in a manner prescribed by the Nebraska State Patrol for such purpose.

(11) Any person required to register under the act shall, in person, inform the sheriff of any legal change in name within three working days after such change and provide a copy of the legal documentation supporting the change in name. The sheriff shall submit the information to the sex offender registration and community notification division of the Nebraska State Patrol, in writing, immediately after receipt of the information and in a manner prescribed by the Nebraska State Patrol for such purpose.

(12) At any time that a person required to register under the act violates the registry requirements and cannot be located, the registry information shall reflect that the person has absconded, a warrant shall be sought for the person's arrest, and the United States Marshals Service shall be notified.

Source:Laws 1996, LB 645, § 6;    Laws 2002, LB 564, § 6;    Laws 2006, LB 1199, § 21;    Laws 2009, LB97, § 26;    Laws 2009, LB285, § 7;    Laws 2015, LB292, § 6.    


Annotations

29-4007. Sentencing court; duties; Department of Correctional Services or local facility; Department of Motor Vehicles; notification requirements; Attorney General; approve form.

(1) When sentencing a person convicted of a registrable offense under section 29-4003, the court shall:

(a) Provide written notification of the duty to register under the Sex Offender Registration Act at the time of sentencing to any defendant who has pled guilty or has been found guilty of a registrable offense under section 29-4003. The written notification shall:

(i) Inform the defendant of whether or not he or she is subject to the act, the duration of time he or she will be subject to the act, and that he or she shall report to a location designated by the Nebraska State Patrol for purposes of accepting such registration within three working days after the date of the written notification to register;

(ii) Inform the defendant that if he or she moves to another address within the same county, he or she must report to the county sheriff of the county in which he or she is residing within three working days before his or her move;

(iii) Inform the defendant that if he or she no longer has a residence, temporary domicile, or habitual living location, he or she shall report such change in person to the sheriff of the county in which he or she is located within three working days after such change in residence, temporary domicile, or habitual living location;

(iv) Inform the defendant that if he or she moves to another county in the State of Nebraska, he or she must notify, in person, the county sheriff of the county in which he or she had been last residing, had a temporary domicile, or had a habitual living location and the county sheriff of the county in which he or she is residing, has a temporary domicile, or is habitually living of his or her current address. The notice must be given within three working days before his or her move;

(v) Inform the defendant that if he or she moves to another state, he or she must report, in person, the change of address to the county sheriff of the county in which he or she has been residing, has had a temporary domicile, or has had a habitual living location and must comply with the registration requirements of the state to which he or she is moving. The notice must be given within three working days before his or her move;

(vi) Inform the defendant that he or she shall (A) inform the sheriff of the county in which he or she resides, has a temporary domicile, or is habitually living, in person, of each educational institution at which he or she is employed, carries on a vocation, or attends school, within three working days after such employment or attendance, and (B) notify the sheriff of any change in such employment or attendance status of such person at such educational institution, within three working days;

(vii) Inform the defendant that he or she shall (A) inform the sheriff of the county in which the employment site is located, in person, of the name and address of any place where he or she is or will be an employee, within three working days after such employment, and (B) inform the sheriff of the county in which the employment site is located, in person, of any change in his or her employment;

(viii) Inform the defendant that if he or she goes to another state to work or goes to another state as a student and still resides, has a temporary domicile, or has a habitual living location in this state, he or she must comply with the registration requirements of both states;

(ix) Inform the defendant that fingerprints, palm prints, a DNA sample if not previously collected, and a photograph will be obtained by any registering entity in order to comply with the registration requirements;

(x) Inform the defendant of registry and verification locations; and

(xi) Inform the defendant of the reduction request requirements, if eligible, under section 29-4005;

(b) Require the defendant to read and sign the registration form stating that the duty of the defendant to register under the Sex Offender Registration Act has been explained;

(c) Retain the original notification signed by the defendant; and

(d) Provide a copy of the filed notification, the information or amended information, and the sentencing order of the court to the county attorney, the defendant, the sex offender registration and community notification division of the Nebraska State Patrol, and the county sheriff of the county in which the defendant resides, has a temporary domicile, or has a habitual living location.

(2) When a person is convicted of a registrable offense under section 29-4003 and is not subject to immediate incarceration upon sentencing, prior to being released by the court, the sentencing court shall ensure that the defendant is registered by a Nebraska State Patrol office or other location designated by the patrol for purposes of accepting registrations.

(3)(a) The Department of Correctional Services or a city or county correctional or jail facility shall provide written notification of the duty to register pursuant to the Sex Offender Registration Act to any person committed to its custody for a registrable offense under section 29-4003 prior to the person's release from incarceration. The written notification shall:

(i) Inform the person of whether or not he or she is subject to the act, the duration of time he or she will be subject to the act, and that he or she shall report to a location designated by the Nebraska State Patrol for purposes of accepting such registration within three working days after the date of the written notification to register;

(ii) Inform the person that if he or she moves to another address within the same county, he or she must report all address changes, in person, to the county sheriff of the county in which he or she has been residing within three working days before his or her move;

(iii) Inform the defendant that if he or she no longer has a residence, temporary domicile, or habitual living location, he or she shall report such change in person to the sheriff of the county in which he or she is located within three working days after such change in residence, temporary domicile, or habitual living location;

(iv) Inform the person that if he or she moves to another county in the State of Nebraska, he or she must notify, in person, the county sheriff of the county in which he or she had been last residing, had a temporary domicile, or had a habitual living location and the county sheriff of the county in which he or she is residing, has a temporary domicile, or is habitually living of his or her current address. The notice must be given within three working days before his or her move;

(v) Inform the person that if he or she moves to another state, he or she must report, in person, the change of address to the county sheriff of the county in which he or she has been residing, has had a temporary domicile, or has been habitually living and must comply with the registration requirements of the state to which he or she is moving. The report must be given within three working days before his or her move;

(vi) Inform the person that he or she shall (A) inform the sheriff of the county in which he or she resides, has a temporary domicile, or is habitually living, in person, of each educational institution at which he or she is employed, carries on a vocation, or attends school, within three working days after such employment or attendance, and (B) notify the sheriff of any change in such employment or attendance status of such person at such educational institution, within three working days after such change;

(vii) Inform the person that he or she shall (A) inform the sheriff of the county in which the employment site is located, in person, of the name and address of any place where he or she is or will be an employee, within three working days after such employment, and (B) inform the sheriff of the county in which the employment site is located, in person, of any change in his or her employment;

(viii) Inform the person that if he or she goes to another state to work or goes to another state as a student and still resides, has a temporary domicile, or has a habitual living location in this state, he or she must comply with the registration requirements of both states;

(ix) Inform the defendant that fingerprints, palm prints, a DNA sample if not previously collected, and a photograph will be obtained by any registering entity in order to comply with the registration requirements;

(x) Inform the defendant of registry and verification locations; and

(xi) Inform the defendant of the reduction request requirements, if eligible, under section 29-4005.

(b) The Department of Correctional Services or a city or county correctional or jail facility shall:

(i) Require the person to read and sign the notification form stating that the duty to register under the Sex Offender Registration Act has been explained;

(ii) Retain a signed copy of the written notification to register; and

(iii) Provide a copy of the signed, written notification to register to the person and to the sex offender registration and community notification division of the Nebraska State Patrol.

(4) If a person is convicted of a registrable offense under section 29-4003 and is immediately incarcerated, he or she shall be registered as required under the act prior to discharge, parole, or work release.

(5) The Department of Motor Vehicles shall cause written notification of the duty to register to be provided on the applications for a motor vehicle operator's license and for a commercial driver's license.

(6) All written notification as provided in this section shall be on a form approved by the Attorney General.

Source:Laws 1996, LB 645, § 7;    Laws 1998, LB 204, § 1;    Laws 2002, LB 564, § 7;    Laws 2006, LB 1199, § 22;    Laws 2009, LB97, § 27;    Laws 2009, LB285, § 8;    Laws 2015, LB292, § 7;    Laws 2018, LB193, § 63.    


Annotations

29-4008. False or misleading information prohibited; updates required.

No person subject to the Sex Offender Registration Act shall knowingly and willfully furnish any false or misleading information in the registration or fail to provide or timely update law enforcement of any of the information required to be provided by the act.

Source:Laws 1996, LB 645, § 8;    Laws 2009, LB97, § 28.    


Annotations

29-4009. Information not confidential; limit on disclosure.

(1) Information obtained under the Sex Offender Registration Act shall not be confidential, except that the following information shall only be disclosed to law enforcement agencies, including federal or state probation or parole agencies, if appropriate:

(a) A sex offender's social security number;

(b) Any references to arrests of a sex offender that did not result in conviction;

(c) A sex offender's travel or immigration document information;

(d) A sex offender's remote communication device identifiers and addresses;

(e) A sex offender's email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers;

(f) A sex offender's telephone numbers;

(g) A sex offender's motor vehicle operator's license information or state identification card number; and

(h) The name of any employer of a sex offender.

(2) The identity of any victim of a sex offense shall not be released.

(3) The release of information authorized by this section shall conform with the rules and regulations adopted and promulgated by the Nebraska State Patrol pursuant to section 29-4013.

Source:Laws 1996, LB 645, § 9;    Laws 1998, LB 204, § 2;    Laws 2002, LB 564, § 8;    Laws 2005, LB 713, § 6;    Laws 2006, LB 1199, § 23;    Laws 2009, LB285, § 9.    


29-4010. Repealed. Laws 2009, LB 285, § 17.

29-4011. Violations; penalties; investigation and enforcement.

(1) Any person required to register under the Sex Offender Registration Act who violates the act is guilty of a Class IIIA felony.

(2) Any person required to register under the act who violates the act and who has previously been convicted of a violation of the act is guilty of a Class IIA felony and shall be sentenced to a mandatory minimum term of at least one year in prison unless the violation which caused the person to be placed on the registry was a misdemeanor, in which case the violation of the act shall be a Class IIIA felony.

(3) Any law enforcement agency with jurisdiction in the area in which a person required to register under the act resides, has a temporary domicile, maintains a habitual living location, is employed, carries on a vocation, or attends school shall investigate and enforce violations of the act.

Source:Laws 1996, LB 645, § 11;    Laws 2006, LB 1199, § 24;    Laws 2009, LB285, § 10;    Laws 2015, LB605, § 74.    


29-4012. Immunity from liability.

Law enforcement officials, their employees, and state officials shall be immune from liability for good faith conduct under the Sex Offender Registration Act.

Source:Laws 1996, LB 645, § 12.    


29-4013. Rules and regulations; release of information; duties; access to public notification information; access to documents.

(1) The Nebraska State Patrol shall adopt and promulgate rules and regulations to carry out the registration provisions of the Sex Offender Registration Act.

(2)(a) The Nebraska State Patrol shall adopt and promulgate rules and regulations for the release of information pursuant to section 29-4009.

(b) The procedures for release of information established by the Nebraska State Patrol shall provide for law enforcement and public notification using electronic systems.

(3) Information concerning the address or whereabouts of a sex offender may be disclosed to his or her victim or victims.

(4) The following shall have access to public notification information: Any agency responsible for conducting employment-related background checks under section 3 of the National Child Protection Act of 1993, 42 U.S.C. 5119a; any social service entity responsible for protecting minors in the child welfare system; any volunteer organization in which contact with minors or other vulnerable individuals might occur; any public housing agency in each area in which a registered sex offender resides or is an employee or a student; any governmental agency conducting confidential background checks for employment, volunteer, licensure, or certification purposes; and any health care provider who serves children or vulnerable adults for the purpose of conducting confidential background checks for employment. If any means of notification proposes a fee for usage, then nonprofit organizations holding a certificate of exemption under section 501(c) of the Internal Revenue Code shall not be charged.

(5) Personnel for the sex offender registration and community notification division of the Nebraska State Patrol shall have access to all documents that are generated by any governmental agency that may have bearing on sex offender registration and community notification. This may include, but is not limited to, law enforcement reports, presentence reports, criminal histories, birth certificates, or death certificates. The division shall not be charged for access to documents under this subsection. Access to such documents will ensure that a fair determination of what is an appropriate registration period is completed using the totality of all information available.

(6) Nothing in subsection (2) of this section shall be construed to prevent law enforcement officers from providing community notification concerning any person who poses a danger under circumstances that are not provided for in the Sex Offender Registration Act.

Source:Laws 1996, LB 645, § 13;    Laws 1998, LB 204, § 3;    Laws 2002, LB 564, § 10;    Laws 2005, LB 713, § 7;    Laws 2006, LB 1199, § 25;    Laws 2007, LB463, § 1130;    Laws 2009, LB285, § 11.    


Annotations

29-4014. Person committed to Department of Correctional Services; attend sex offender treatment and counseling programming.

Any person convicted of a crime requiring registration as a sex offender pursuant to section 29-4003 and committed to the Department of Correctional Services shall attend appropriate sex offender treatment and counseling programming offered by the department. Refusal to participate in such programming shall not result in disciplinary action or a loss of good time credit on the part of the offender but shall require a civil commitment evaluation pursuant to section 83-174.02 prior to the completion of his or her criminal sentence.

Source:Laws 2006, LB 1199, § 26.    


Annotations

29-4015. Act, how cited.

Sections 29-4015 to 29-4017 shall be known and may be cited as the Sexual Predator Residency Restriction Act.

Source:Laws 2006, LB 1199, § 27.    


29-4016. Terms, defined.

For purposes of the Sexual Predator Residency Restriction Act:

(1) Child care facility means a facility licensed pursuant to the Child Care Licensing Act;

(2) Political subdivision means a village, a city, a county, a school district, a public power district, or any other unit of local government;

(3) School means a public, private, denominational, or parochial school which meets the requirements for accreditation or approval prescribed in Chapter 79;

(4) Sex offender means an individual who has been convicted of a crime listed in section 29-4003 and who is required to register as a sex offender pursuant to the Sex Offender Registration Act; and

(5) Sexual predator means an individual who is required to register under the Sex Offender Registration Act, who has committed an aggravated offense as defined in section 29-4001.01, and who has victimized a person eighteen years of age or younger.

Source:Laws 2006, LB 1199, § 28;    Laws 2009, LB285, § 12.    


Cross References

29-4017. Political subdivision restrictions on sex offender residency; requirements.

(1) A political subdivision may enact an ordinance, resolution, or other legal restriction prescribing where sex offenders may reside only if the restrictions are limited to sexual predators, extend no more than five hundred feet from a school or child care facility, and meet the requirements of subsection (2) of this section.

(2) An ordinance, resolution, or other legal restriction enacted by a political subdivision shall not apply to a sexual predator who:

(a) Resides within a prison or a correctional or treatment facility operated by the state or a political subdivision;

(b) Established a residence before July 1, 2006, and has not moved from that residence; or

(c) Established a residence after July 1, 2006, and the school or child care facility triggering the restriction was established after the initial date of the sexual predator's residence at that location.

(3) Any ordinance, resolution, or other legal restriction prescribing where sex offenders may reside which does not meet the requirements of this section is void, regardless of whether such ordinance, resolution, or legal restriction was adopted prior to, on, or after July 14, 2006.

Source:Laws 2006, LB 1199, § 29.    


29-4018. Offense requiring civil commitment evaluation; sentencing court; duties.

When sentencing a person convicted of an offense which requires a civil commitment evaluation pursuant to section 83-174.02, the sentencing court shall:

(1) Provide written notice to the defendant that a civil commitment evaluation is required prior to his or her release from incarceration;

(2) Require the defendant to read and sign a form stating that the defendant has been informed that a civil commitment evaluation is required prior to his or her release from incarceration; and

(3) Retain a copy of the written notification signed by the defendant.

Source:Laws 2006, LB 1199, § 55.    


29-4019. Offense requiring lifetime community supervision; sentencing court; duties.

(1) When sentencing a person convicted of an offense which requires lifetime community supervision upon release pursuant to section 83-174.03, the sentencing court shall:

(a) Provide written notice to the defendant that he or she shall be subject to lifetime community supervision by the Division of Parole Supervision upon release from incarceration or civil commitment. The written notice shall inform the defendant (i) that he or she shall be subject to lifetime community supervision by the division upon release and that the division shall conduct a risk assessment and evaluation to determine the conditions of community supervision which will minimize, in the least restrictive manner that is compatible with public safety, the risk of the defendant committing additional offenses, (ii) that a violation of any of the conditions of community supervision imposed by the division may result in the revision of existing conditions, the addition of new conditions, a recommendation that civil commitment proceedings should be instituted, or criminal prosecution, and (iii) of his or her right to challenge the determination of the conditions of community supervision by the division and the right to a periodic review of the conditions of community supervision pursuant to section 83-174.03 to determine if the conditions are still necessary to protect the public;

(b) Require the defendant to read and sign a form stating that the duty of the defendant to comply with the conditions of community supervision and his or her rights to challenge the conditions of community supervision imposed by the division has been explained; and

(c) Retain a copy of the written notification signed by the defendant.

(2) Prior to the release of a person serving a sentence for an offense requiring lifetime community supervision by the Division of Parole Supervision pursuant to section 83-174.03, the Department of Correctional Services, the Department of Health and Human Services, or a city or county correctional or jail facility shall:

(a) Provide written notice to the person that he or she shall be subject to lifetime community supervision by the division upon release from incarceration. The written notice shall inform the person (i) that he or she shall be subject to lifetime community supervision by the division upon release and that the division shall conduct a risk assessment and evaluation of the defendant to determine the conditions of community supervision which will minimize, in the least restrictive manner that is compatible with public safety, the risk of the person committing additional offenses, (ii) that a violation of any of the conditions of community supervision imposed by the division may result in the revision of existing conditions, the addition of new conditions, a recommendation that civil commitment proceedings should be instituted, or criminal prosecution, and (iii) of his or her right to challenge the determination of the conditions of community supervision by the division and the right to a periodic review of the conditions of community supervision pursuant to section 83-174.03 to determine if the conditions are still necessary to protect the public;

(b) Require the defendant to read and sign a form stating that the duty of the defendant to comply with the conditions of community supervision and his or her right to challenge the conditions of community supervision imposed by the division has been explained; and

(c) Retain a copy of the written notification signed by the person.

Source:Laws 2006, LB 1199, § 106;    Laws 2018, LB841, § 5.    


29-4101. Act, how cited.

Sections 29-4101 to 29-4115.01 shall be known and may be cited as the DNA Identification Information Act.

Source:Laws 1997, LB 278, § 1;    Laws 2006, LB 385, § 2;    Laws 2006, LB 1113, § 28;    Laws 2010, LB190, § 2.    


29-4102. Legislative findings.

The Legislature finds that DNA data banks are an important tool in criminal investigations, in the exclusion of individuals who are the subject of criminal investigations or prosecutions, in deterring and detecting recidivist acts, and in locating and identifying missing persons and human remains. Several states have enacted laws requiring persons convicted of certain crimes to provide genetic samples for DNA typing tests. Moreover, it is the policy of this state to assist federal, state, and local criminal justice and law enforcement agencies in the identification and detection of individuals in criminal investigations and in locating and identifying missing persons and human remains. It is in the best interest of this state to establish a State DNA Database for DNA records and a State DNA Sample Bank as a repository for DNA samples from individuals convicted of felony offenses and other specified offenses and from individuals for purposes of assisting in locating and identifying missing persons and human remains.

Source:Laws 1997, LB 278, § 2;    Laws 2006, LB 385, § 3;    Laws 2006, LB 1113, § 29;    Laws 2010, LB190, § 3.    


29-4103. Terms, defined.

For purposes of the DNA Identification Information Act:

(1) Combined DNA Index System means the Federal Bureau of Investigation's national DNA identification index system that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories;

(2) DNA means deoxyribonucleic acid which is located in the cells and provides an individual's personal genetic blueprint. DNA encodes genetic information that is the basis of human heredity and forensic identification;

(3) DNA record means the DNA identification information stored in the State DNA Database or the Combined DNA Index System which is derived from DNA typing test results;

(4) DNA sample means a blood, tissue, or bodily fluid sample provided by any person covered by the DNA Identification Information Act for analysis or storage, or both;

(5) DNA typing tests means the laboratory procedures which evaluate the characteristics of a DNA sample which are of value in establishing the identity of an individual;

(6) Law enforcement agency includes a police department, a town marshal, a county sheriff, and the Nebraska State Patrol;

(7) Other specified offense means misdemeanor stalking pursuant to sections 28-311.02 to 28-311.05 or false imprisonment in the second degree pursuant to section 28-315 or an attempt, conspiracy, or solicitation to commit stalking pursuant to sections 28-311.02 to 28-311.05, false imprisonment in the first degree pursuant to section 28-314, false imprisonment in the second degree pursuant to section 28-315, knowing and intentional sexual abuse of a vulnerable adult or senior adult pursuant to subdivision (1)(c) of section 28-386, or a violation of the Sex Offender Registration Act pursuant to section 29-4011; and

(8) Released means any release, parole, furlough, work release, prerelease, or release in any other manner from a prison, a jail, or any other detention facility or institution.

Source:Laws 1997, LB 278, § 3;    Laws 2006, LB 385, § 4;    Laws 2006, LB 1199, § 30;    Laws 2010, LB190, § 4;    Laws 2016, LB934, § 12.    


Cross References

29-4104. State DNA Database; established; contents; Nebraska State Patrol; duties.

The State DNA Database is established. The Nebraska State Patrol shall administer the State DNA Database and shall provide DNA records to the Federal Bureau of Investigation for storage and maintenance in the Combined DNA Index System. The patrol shall provide for liaison with the Federal Bureau of Investigation and other law enforcement agencies in regard to the state's participation in the Combined DNA Index System. The State DNA Database shall store and maintain DNA records related to:

(1) Forensic casework, including, but not limited to, forensic casework relating to missing persons, relatives of missing persons, and unidentified human remains;

(2) Convicted offenders required to provide a DNA sample under the DNA Identification Information Act;

(3) Anonymous DNA records used for research or quality control; and

(4) Missing persons, relatives of missing persons, and unidentified human remains.

Source:Laws 1997, LB 278, § 4;    Laws 2006, LB 385, § 5;    Laws 2006, LB 1113, § 30.    


29-4105. DNA samples and records; access restrictions; Nebraska State Patrol; duties.

(1) The Nebraska State Patrol shall prescribe procedures to be used in the collection, submission, identification, analysis, storage, and disposition of DNA samples in the State DNA Sample Bank and DNA records in the State DNA Database. These procedures shall include quality assurance guidelines for laboratories which submit DNA records to the State DNA Database and shall also require that all laboratories be accredited by the American Society of Crime Laboratory Directors-LAB-Laboratory Accreditation Board or the National Forensic Science Technology Center or by any other national accrediting body or public agency which has requirements that are substantially equivalent to or more comprehensive than those of the society or center. The State DNA Database shall be compatible with the procedures specified by the Federal Bureau of Investigation, including the use of comparable test procedures, laboratory equipment, supplies, and computer software. The DNA records shall be securely stored in the State DNA Database and retained in a manner consistent with the procedures established by the Federal Bureau of Investigation.

(2) The Nebraska State Patrol may contract with the University of Nebraska Medical Center to establish the State DNA Sample Bank at the medical center and for DNA typing tests. The State DNA Sample Bank shall serve as the repository of DNA samples collected under the DNA Identification Information Act and other forensic casework. Any such contract shall require that the University of Nebraska Medical Center be subject to the same restrictions and requirements of the act, insofar as applicable, as the Nebraska State Patrol, as well as any additional restrictions imposed by the patrol.

(3) The DNA samples and DNA records shall only be used by the Nebraska State Patrol (a) to create a separate population database comprised of DNA records obtained after all personal identification is removed and (b) for quality assurance, training, and research purposes related to human DNA identification. The patrol may share or disseminate the population database with other law enforcement agencies or forensic DNA laboratories which assist the patrol with statistical databases. The population database may be made available to and searched by other agencies participating in the Combined DNA Index System.

(4) Except for records and samples expunged under section 29-4109, the Nebraska State Patrol shall permanently retain DNA samples and records of an individual obtained under section 29-4106. Any other DNA samples and records related to forensic casework, other than those used for research or quality control, shall not be permanently retained but shall be retained only as long as needed for a criminal investigation or criminal prosecution.

(5) If the Nebraska State Patrol determines after analysis that a forensic sample has been submitted by an individual who has been eliminated as a suspect in a crime, the patrol or the law enforcement agency which submitted the sample shall destroy the DNA sample and record in the presence of a witness. After destruction, the patrol or law enforcement agency shall make and keep a written record of the destruction, signed by the individual who witnessed the destruction. After the patrol or the law enforcement agency destroys the DNA sample and record, it shall notify the individual if he or she is not a minor or the parent or legal guardian of a minor by certified mail that the sample and record have been destroyed. Destruction of a DNA sample and record under this section shall not be considered the offense of tampering with physical evidence under section 28-922.

Source:Laws 1997, LB 278, § 5;    Laws 2001, LB 432, § 7;    Laws 2006, LB 385, § 6.    


29-4106. Person subject to DNA sample; payment of costs.

(1) A person who is convicted of a felony offense or other specified offense on or after July 15, 2010, who does not have a DNA sample available for use in the State DNA Sample Bank, shall, at his or her own expense, have a DNA sample collected:

(a) Upon intake to a prison, jail, or other detention facility or institution to which such person is sentenced. If the person is already confined at the time of sentencing, the person shall have a DNA sample collected immediately after the sentencing. Such DNA sample shall be collected at the place of incarceration or confinement. Such person shall not be released unless and until a DNA sample has been collected; or

(b) As a condition for any sentence which will not involve an intake into a prison, jail, or other detention facility or institution. Such DNA samples shall be collected as follows:

(i) In any county containing a city of the metropolitan class, a person placed on probation or who received a penalty of a fine or time served shall have such DNA sample collected by a probation officer at a probation office. Such person shall not be released unless and until a DNA sample has been collected; and

(ii) In all other counties, a person placed on probation shall have such DNA sample collected by a probation officer at a probation office, and a person not placed on probation who receives a penalty of a fine or time served shall have such DNA sample collected by the county sheriff. Such person shall not be released unless and until a DNA sample has been collected.

(2) A person who has been convicted of a felony offense or other specified offense before July 15, 2010, who does not have a DNA sample available for use in the State DNA Sample Bank, and who is still serving a term of confinement or probation for such felony offense or other specified offense on July 15, 2010, shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge from his or her probation unless and until a DNA sample has been collected.

(3) A person who is serving a term of probation and has a DNA sample collected pursuant to this section shall pay all costs associated with the collection of the DNA sample.

(4) If the court waives the cost of taking a DNA sample for any reason, a county jail or other county detention facility or institution collecting the DNA sample shall not be held financially responsible for the cost of the DNA sample kit.

Source:Laws 1997, LB 278, § 6;    Laws 2006, LB 385, § 7;    Laws 2006, LB 1113, § 32;    Laws 2010, LB190, § 5;    Laws 2012, LB66, § 1.    


Annotations

29-4106.01. DNA samples; collection method choice.

A person required to submit a DNA sample pursuant to section 29-4106 shall be given the choice of having the sample collected by a blood draw or a buccal cell collection kit. Any person who collects a DNA sample pursuant to section 29-4106 shall honor the choice of collection method made by the person providing the DNA sample. If the person required to submit the DNA sample does not indicate a preference as to the method of collection, either method may be used to collect the sample.

Source:Laws 2006, LB 1113, § 31.    


29-4107. DNA samples; persons authorized to obtain samples; immunity.

(1) Only individuals (a) who are physicians or registered nurses, (b) who are trained to withdraw human blood for scientific or medical purposes and are obtaining blood specimens while working under orders of or protocols and procedures approved by a physician, registered nurse, or other independent health care practitioner licensed to practice by the state if the scope of practice of that practitioner permits the practitioner to obtain blood specimens, or (c) who are both employed by a licensed institution or facility and have been trained to withdraw human blood for scientific or medical purposes shall withdraw blood for a DNA blood sample under the DNA Identification Information Act. Withdrawal of blood shall be performed in a medically approved manner using a collection kit provided or accepted by the Nebraska State Patrol. The collection of buccal cell samples shall be performed by any person approved or designated by the Nebraska State Patrol and using a collection kit provided or accepted by the Nebraska State Patrol.

(2) In addition to the DNA sample, one thumb print or fingerprint shall be taken from the person from whom the DNA sample is being collected for the exclusive purpose of verifying the identity of such person. The DNA sample and the thumb print or fingerprint shall be delivered to the Nebraska State Patrol within five working days after collecting the sample unless the DNA sample was collected from buccal cell samples, in which case the DNA sample shall be delivered within ten working days after collecting the sample.

(3) A person authorized to collect DNA samples under the act is not criminally liable for collecting a DNA sample and transmitting DNA records pursuant to the act if he or she performs these activities in good faith and is not civilly liable for such activities if he or she performed such activities in a reasonable manner according to generally accepted medical standards for blood samples or in accordance with the collection kit and procedures approved by the Nebraska State Patrol for tissue samples.

Source:Laws 1997, LB 278, § 7;    Laws 2000, LB 151, § 1;    Laws 2006, LB 385, § 8;    Laws 2006, LB 1113, § 33;    Laws 2012, LB66, § 2.    


29-4108. DNA samples and DNA records; confidentiality.

(1) All DNA samples and DNA records submitted to the State DNA Sample Bank or the State DNA Database are confidential except as otherwise provided in the DNA Identification Information Act. The Nebraska State Patrol shall make DNA records in the State DNA Database available:

(a) To law enforcement agencies and forensic DNA laboratories which serve such agencies and which participate in the Combined DNA Index System; and

(b) Upon written or electronic request and in furtherance of an official investigation of a criminal offense or offender or suspected offender.

(2) The Nebraska State Patrol shall adopt and promulgate rules and regulations governing the methods of obtaining information from the State DNA Database and the Combined DNA Index System and procedures for verification of the identity and authority of the requester.

(3) The Nebraska State Patrol may, for good cause shown, revoke or suspend the right of a forensic DNA laboratory in this state to have access to or submit records to the State DNA Database.

(4) For purposes of this subsection, person means a law enforcement agency, the Federal Bureau of Investigation, any forensic DNA laboratory, or person. No records or DNA samples shall be provided to any person unless such person enters into a written agreement with the Nebraska State Patrol to comply with the provisions of section 29-4109 relative to expungement, when notified by the Nebraska State Patrol that expungement has been granted. Every person shall comply with the provisions of section 29-4109 within ten calendar days of receipt of such notice and certify in writing to the Nebraska State Patrol that such compliance has been effectuated. The Nebraska State Patrol shall provide notice of such certification to the person who was granted expungement.

Source:Laws 1997, LB 278, § 8;    Laws 2006, LB 385, § 9;    Laws 2020, LB106, § 1.    


29-4109. DNA record; expungement; procedure.

A person whose DNA record has been included in the State DNA Database pursuant to the DNA Identification Information Act may request expungement on the grounds that the conviction on which the authority for including such person's DNA record was based has been reversed and the case dismissed. The Nebraska State Patrol shall purge all DNA records and identifiable information in the database pertaining to the person and destroy all DNA samples from the person upon receipt of a written request for expungement pursuant to this section and a certified copy of the final court order reversing and dismissing the conviction.

Within ten calendar days of granting expungement, the Nebraska State Patrol shall provide written notice of such expungement pursuant to subsection (4) of section 29-4108, to any person to whom DNA records and samples have been made available. The Nebraska State Patrol shall establish procedures for providing notice of certification of expungement to the person who was granted expungement.

Source:Laws 1997, LB 278, § 9;    Laws 2006, LB 385, § 10.    


29-4110. Unlawfully obtaining or possessing DNA samples or records; penalty.

(1) Any person who has possession of or access to individually identifiable DNA samples or DNA records in the State DNA Database or in the State DNA Sample Bank shall not disclose such samples or records in any manner to any person or agency not authorized to receive them knowing that such person or agency is not authorized to receive them.

(2) No person shall obtain individually identifiable DNA samples or DNA records from the State DNA Database or the State DNA Sample Bank without authorization to do so. Any person who knowingly violates this subsection is guilty of a Class III misdemeanor.

Source:Laws 1997, LB 278, § 10.    


29-4111. Unlawful disclosure for pecuniary gain; penalty; attorney's fees.

(1) Any person who has possession of or access to individually identifiable DNA samples or DNA records contained in the State DNA Database or in the State DNA Sample Bank and who for pecuniary gain for such person or for any other person discloses such samples and records in any manner to any person or agency not authorized to receive them is guilty of a Class III misdemeanor.

(2) Any person aggrieved by a knowing violation of this section has the substantive right to bring an action for damages for such violation in a court of competent jurisdiction. A person found by the court to have been aggrieved by a knowing violation of this section may receive damages of not less than one hundred dollars for each violation and may recover the reasonable costs of the litigation and attorney's fees.

Source:Laws 1997, LB 278, § 11.    


29-4112. Injunction.

The Nebraska State Patrol or any other aggrieved individual or agency may institute an action in a court of proper jurisdiction against any person, including law enforcement agencies, to enjoin such person or agency from violating the DNA Identification Information Act.

Source:Laws 1997, LB 278, § 12;    Laws 2006, LB 385, § 11.    


29-4113. DNA samples; additional offenses; Nebraska State Patrol; duties.

The Nebraska State Patrol may recommend to the Legislature that the Legislature enact legislation for the inclusion of additional offenses for which DNA samples shall be collected and otherwise subjected to the DNA Identification Information Act. In determining whether to recommend additional offenses, the Nebraska State Patrol shall consider those offenses for which DNA testing will have a substantial impact on the detection and identification of sexual offenders and violent offenders.

Source:Laws 1997, LB 278, § 13;    Laws 2006, LB 385, § 12.    


29-4114. Rules and regulations.

The Nebraska State Patrol shall adopt and promulgate rules and regulations to carry out the DNA Identification Information Act.

Source:Laws 1997, LB 278, § 14;    Laws 2006, LB 385, § 13.    


29-4115. Act; how construed.

Except as provided in section 29-4105, the DNA Identification Information Act shall not limit or abrogate any existing authority of peace officers to collect, maintain, store, and utilize DNA samples for law enforcement purposes.

Source:Laws 1997, LB 278, § 15;    Laws 2001, LB 432, § 8;    Laws 2006, LB 385, § 14.    


29-4115.01. State DNA Sample and Database Fund; created; use; investment.

The State DNA Sample and Database Fund is created. The fund shall be maintained by the Nebraska State Patrol and administered by the Superintendent of Law Enforcement and Public Safety. The fund shall consist of any funds transferred to the fund by the Legislature or made available by any department or agency of the United States Government if so directed by such department or agency. The fund shall be used to pay the expenses of the Department of Correctional Services and the Nebraska State Patrol as needed to collect DNA samples as provided in section 29-4106. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 2010, LB190, § 6;    Laws 2017, LB331, § 21.    


Cross References

29-4116. Act, how cited.

Sections 29-4116 to 29-4125 shall be known and may be cited as the DNA Testing Act.

Source:Laws 2001, LB 659, § 1.    


Annotations

29-4117. Legislative intent.

It is the intent of the Legislature that wrongfully convicted persons have an opportunity to establish their innocence through deoxyribonucleic acid, DNA, testing.

Source:Laws 2001, LB 659, § 2.    


Annotations

29-4118. Legislative findings.

The Legislature finds and declares:

(1) Over the past decade, DNA testing has emerged as the most reliable forensic technique for identifying persons when biological material is found at a crime scene or transferred from the victim to the person responsible and transported from the crime scene;

(2) Because of its scientific precision and reliability, DNA testing can, in some cases, conclusively establish the guilt or innocence of a criminal defendant. In other cases, DNA may not conclusively establish guilt or innocence but may have significant probative value to a finder of fact;

(3) While DNA testing is increasingly commonplace in pretrial investigations currently, it was not widely available in cases prior to 1994. Moreover, new forensic DNA testing procedures, such as polymerase chain reaction amplification, DNA short tandem repeat analysis, and mitochondrial DNA analysis, make it possible to obtain results from minute samples that previously could not be tested and to obtain more informative and accurate results than earlier forms of forensic DNA testing could produce. As a result, in some cases, convicted inmates have been exonerated by new DNA tests after earlier tests had failed to produce definitive results;

(4) Because DNA testing is often feasible on relevant biological material that is decades old, it can in some circumstances prove that a conviction which predated the development of DNA testing was based upon incorrect factual findings. DNA evidence produced even decades after a conviction can provide a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial. DNA testing, therefor, can and has resulted in postconviction exoneration of innocent men and women;

(5) In the past decade, there have been multiple postconviction exonerations in the United States and Canada based upon DNA testing. In addition, a disturbing number of persons sentenced to death have been exonerated through postconviction DNA testing, some of these exonerations coming within days of their execution date;

(6) DNA testing responds to serious concerns regarding wrongful convictions, especially those arising out of mistaken eyewitness identification testimony; and

(7) There is a compelling need to ensure the preservation of biological material for postconviction DNA testing, for a limited period.

Source:Laws 2001, LB 659, § 3.    


Annotations

29-4119. Exculpatory evidence, defined.

For purposes of the DNA Testing Act, exculpatory evidence means evidence which is favorable to the person in custody and material to the issue of the guilt of the person in custody.

Source:Laws 2001, LB 659, § 4.    


Annotations

29-4120. DNA testing; procedure.

(1) Notwithstanding any other provision of law, a person in custody pursuant to the judgment of a court may, at any time after conviction, file a motion, with or without supporting affidavits, in the court that entered the judgment requesting forensic DNA testing of any biological material that:

(a) Is related to the investigation or prosecution that resulted in such judgment;

(b) Is in the actual or constructive possession or control of the state or is in the possession or control of others under circumstances likely to safeguard the integrity of the biological material's original physical composition; and

(c) Was not previously subjected to DNA testing or can be subjected to retesting with more current DNA techniques that provide a reasonable likelihood of more accurate and probative results.

(2) Notice of such motion shall be served by the person in custody upon the county attorney of the county in which the prosecution was held.

(3) Upon receiving notice of a motion filed pursuant to subsection (1) of this section, the county attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured by the state or a political subdivision in connection with the case is preserved pending the completion of proceedings under the DNA Testing Act.

(4) The county attorney shall prepare an inventory of all evidence that was secured by the state or a political subdivision in connection with the case and shall submit a copy of the inventory to the person or the person's counsel and to the court. If evidence is intentionally destroyed after notice of a motion filed pursuant to this section, the court shall impose appropriate sanctions, including criminal contempt.

(5) Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that (a)(i) the biological material was not previously subjected to DNA testing or (ii) the biological material was tested previously, but current technology could provide a reasonable likelihood of more accurate and probative results, (b) the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and (c) such testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced.

(6) All forensic DNA tests shall be performed by a laboratory which is accredited by the American Society of Crime Laboratory Directors-LAB-Laboratory Accreditation Board or the National Forensic Science Technology Center or by any other national accrediting body or public agency which has requirements that are substantially equivalent to or more comprehensive than those of the society or center.

Source:Laws 2001, LB 659, § 5;    Laws 2015, LB245, § 3.    


Annotations

29-4121. DNA testing; costs.

The cost of DNA testing ordered under subsection (5) of section 29-4120 shall be paid by the person filing the motion, unless the court determines such person to be indigent. If the person filing such motion is determined by the court to be indigent, the costs shall be paid by the state in the following manner:

(1) If the Commission on Public Advocacy has been appointed to represent the person filing the motion, as determined under section 29-4122, the costs of testing shall be paid by the commission from funds appropriated by the Legislature; and

(2) If the Commission on Public Advocacy has not been appointed to represent the person filing the motion, the court shall hold a hearing to determine the costs for DNA testing. The court shall order the commission to pay such costs. The order shall be forwarded by the clerk of the court to the commission, along with copies of all invoices for such DNA testing. Upon receipt, the commission shall pay such costs from funds appropriated by the Legislature.

Source:Laws 2001, LB 659, § 6;    Laws 2002, LB 876, § 70.    


Cross References

29-4122. Appointed counsel; when.

Upon a showing by the person that DNA testing may be relevant to the person's claim of wrongful conviction, the court shall appoint counsel for an indigent person as follows:

(1) The court shall first contact the chief counsel for the Commission on Public Advocacy to inquire if the commission is able to accept the appointment. If the chief counsel determines that the commission can accept the appointment, then the court shall appoint the commission pursuant to the County Revenue Assistance Act; and

(2) If the chief counsel declines the appointment because of a conflict of interest or the case would exceed the caseload standards set by the commission, then the court shall appoint an attorney licensed to practice law in this state with at least five years experience in felony litigation to represent the indigent person at all stages of the proceedings. Counsel appointed under this subdivision, other than the public defender, shall obtain leave of court before proceeding beyond an initial direct appeal to either the Court of Appeals or the Supreme Court to any further direct, collateral, or postconviction appeals to state or federal courts. Counsel appointed under this subdivision shall file an application for fees and expenses in the district court which appointed him or her for all fees and expenses reasonably necessary to permit him or her to effectively and competently represent the client. The court, upon hearing the application, shall fix reasonable attorney's fees and expenses. The court's order shall require that such fees and expenses be paid by the Commission on Public Advocacy from funds appropriated by the Legislature. Upon receipt of the order, the commission shall pay such fees and expenses in the full amount determined by the court.

Source:Laws 2001, LB 659, § 7;    Laws 2002, LB 876, § 71.    


Cross References

Annotations

29-4123. DNA testing results; effect.

(1) The results of the final DNA or other forensic testing ordered under subsection (5) of section 29-4120 shall be disclosed to the county attorney, to the person filing the motion, and to the person's attorney.

(2) Upon receipt of the results of such testing, any party may request a hearing before the court when such results exonerate or exculpate the person. Following such hearing, the court may, on its own motion or upon the motion of any party, vacate and set aside the judgment and release the person from custody based upon final testing results exonerating or exculpating the person.

(3) If the court does not grant the relief contained in subsection (2) of this section, any party may file a motion for a new trial under sections 29-2101 to 29-2103.

Source:Laws 2001, LB 659, § 8.    


Annotations

29-4124. Act; how construed.

Nothing in the DNA Testing Act shall be construed to limit the circumstances under which a person may obtain DNA testing or other postconviction relief under any other provision of law.

Source:Laws 2001, LB 659, § 9.    


29-4125. Biological material; secured; when.

(1) Notwithstanding any other provision of law and subject to subsection (2) or (4) of this section, state agencies and political subdivisions shall preserve any biological material secured in connection with a criminal case for such period of time as any person remains incarcerated in connection with that case.

(2) State agencies or political subdivisions that have secured biological material for use in criminal cases may dispose of biological material before expiration of the period of time specified in subsection (1) of this section if:

(a) The state agency or political subdivision which secured the biological material for use in a criminal case notifies any person who remains incarcerated in connection with the case, such person's counsel of record, or if there is no counsel of record, the public defender, if applicable, in the county in which the judgment of conviction of such person was entered. The notice shall include:

(i) The intention of the state agency or political subdivision to dispose of the material after ninety days after receipt of the notice; and

(ii) The provisions of the DNA Testing Act;

(b) The person, such person's counsel of record, or the public defender does not file a motion under section 29-4120 within ninety days after receipt of notice under this section; and

(c) No other provision of law or court order requires that such biological material be preserved.

(3) The person, such person's counsel of record, or the public defender who receives notice under subdivision (2)(a) of this section, may, in lieu of a motion under section 29-4120, request in writing to take possession of the biological material for the purpose of having the material available for any future discovery of scientific or forensic techniques. Copies of any such written request shall be provided to both the court and to the county attorney. The costs of acquisition, preservation, and storage of any such material shall be at the expense of the person.

(4) The Department of Health and Human Services shall preserve biological material obtained for the purpose of determining the concentration of alcohol in a person's blood for two years unless a request is made for the retention of such material beyond such period in connection with a pending legal action.

Source:Laws 2001, LB 659, § 10;    Laws 2003, LB 245, § 2;    Laws 2007, LB296, § 48.    


29-4126. Limitations on obtaining and using samples.

Notwithstanding any other provision of law:

(1) No DNA sample shall be obtained from any person for any law enforcement purpose in connection with an investigation of a crime without probable cause, a court order, or voluntary consent as described in subdivision (2) of this section;

(2) In the absence of probable cause, if any person is requested by a law enforcement person or agency to consent to the taking of a DNA sample in connection with a law enforcement investigation of a particular crime, such consent shall be deemed voluntary only if:

(a) The sample is knowingly and voluntarily given in connection with the investigation of a particular crime;

(b) The person was informed by a written advisory prepared by the law enforcement agency that the request may be refused and that such refusal does not provide probable cause or reasonable suspicion to believe that the person has committed a crime, and the person signs the advisory; and

(c) No threat, pressure, duress, or coercion of any kind was employed, whether (i) direct or indirect, (ii) express or implied, or (iii) physical or psychological;

(3) Any DNA sample obtained in violation of this section is not admissible in any proceeding for any purpose whatsoever;

(4) A person shall be notified in writing by the law enforcement agency immediately upon the determination that he or she has not been implicated by his or her DNA sample in the commission of the particular crime in connection with which the DNA sample was obtained;

(5) Except as authorized in subdivision (7) of this section, such sample and all identifying information pertaining to the person shall be delivered to the person within ten days after the notification required by subdivision (4) of this section with a written explanation that the materials are being turned over in compliance with this section;

(6) Except as authorized in subdivision (7) of this section, the law enforcement agency shall purge all records and identifiable information pertaining to the person specified in subdivisions (4) and (5) of this section;

(7) An accredited laboratory authorized to perform DNA testing under section 29-4105 shall be allowed to maintain the minimum records and supporting documentation of DNA tests that it has performed as needed for the sole purpose of complying with the laboratory accreditation standards as set forth by a national accrediting body or public agency;

(8) No record authorized for retention under subdivision (7) of this section shall be transferred, shared, or otherwise provided to any national, state, county, or local law enforcement agency unless such person has been implicated in the case by his or her DNA sample;

(9) Any aggrieved person may file an action in district court against any person, including any law enforcement agency, to enjoin such person or law enforcement agency from violating this section; and

(10) Any person aggrieved by a knowing violation of this section may bring an action in district court for damages. A person found by the court to be aggrieved by a violation of this section shall receive damages of not less than one thousand dollars and may recover reasonable costs and attorney's fees.

For purposes of this section, DNA means deoxyribonucleic acid.

Source:Laws 2005, LB 361, § 22;    Laws 2006, LB 1113, § 34.    


29-4201. Legislative intent.

It is the intent and purpose of sections 29-4201 to 29-4207 to authorize the usage of audiovisual court appearances and certain written waivers and pleas in criminal proceedings consistent with the statutory and constitutional rights guaranteed by the Constitution of the United States and the Constitution of Nebraska.

Source:Laws 1999, LB 623, § 1;    Laws 2014, LB828, § 1.    


Annotations

29-4202. Audiovisual court appearance; when permitted.

(1) Except for trials, when the appearance of a detainee or prisoner is required in any court at a nonevidentiary criminal proceeding, the detainee or prisoner may make an audiovisual court appearance. However, a judge or magistrate is not required to allow an audiovisual court appearance and may order the detainee or prisoner to appear physically in the courtroom.

(2) An audiovisual court appearance shall meet the conditions required by sections 29-4201 to 29-4207.

Source:Laws 1999, LB 623, § 2;    Laws 2006, LB 1115, § 21.    


29-4203. Repealed. Laws 2009, LB 90, § 3.

29-4204. Audiovisual communication system and facilities; requirements.

The audiovisual communication system and the facilities for an audiovisual court appearance shall:

(1) Operate so that the detainee or prisoner and the judge or magistrate can see each other simultaneously and converse with each other verbally and documents can be transmitted between the judge or magistrate and the detainee or prisoner;

(2) Operate so that the detainee or prisoner and his or her counsel, if any, are both physically in the same location during the audiovisual court appearance; or if the detainee or prisoner and his or her counsel are in different locations, operate so that the detainee or prisoner and counsel can communicate privately and confidentially and be allowed to confidentially transmit papers back and forth; and

(3) Be at locations conducive to judicial proceedings. Audiovisual court proceedings may be conducted in the courtroom, the judge's or magistrate's chambers, or any other location suitable for audiovisual communications. The locations shall be sufficiently lighted for use of the audiovisual equipment. The location provided for the judge or magistrate to preside shall be accessible to the public and shall be operated so that interested persons have an opportunity to observe the proceeding.

Source:Laws 1999, LB 623, § 4;    Laws 2006, LB 1115, § 23;    Laws 2009, LB90, § 1.    


29-4205. Audiovisual court appearance; procedures.

In a proceeding in which an audiovisual court appearance is made:

(1) Facsimile signatures or electronically reproduced signatures are acceptable for purposes of releasing the detainee or prisoner from custody; however, actual signed copies of the release documents must be promptly filed with the court and the detainee or prisoner must promptly be provided with a copy of all documents which the detainee or prisoner signs;

(2) The record of the court reporting personnel shall be the official record of the proceeding; and

(3) On motion of the detainee or prisoner or the prosecuting attorney or in the court's discretion, the court may terminate an audiovisual appearance and require an appearance by the detainee or prisoner.

Source:Laws 1999, LB 623, § 5;    Laws 2006, LB 1115, § 24;    Laws 2018, LB983, § 1.    


29-4206. County or district court; accept written waivers; when; form; use; effect.

(1) The county courts and district courts may accept a written waiver of preliminary hearing and a written waiver of arraignment and plea of not guilty from any defendant. The written waivers shall only be accepted if the defendant is represented by counsel. The written waivers shall contain the necessary consent and waiver of the right to a physical appearance and comply with subsection (2) of this section, shall be signed by the defendant and his or her counsel of record, and shall be filed with the clerk of the court.

(2) The written waivers authorized under subsection (1) of this section shall be in substantially the following form:

STATE OF NEBRASKA, PLEA OF NOT GUILTY/
Plaintiff, WAIVER OF APPEARANCE
-vs- Case No. ...........
................................, Arrest No. .........
(Print or Type) Defendant

I, the defendant in the above-entitled action, advise the court that I have retained ..................................... to represent me in this matter. I understand that I have been charged with the following violation(s): .................................................................................................................................... Preliminary Hearing Date or Arraignment Date ....................... and in the event that the charges have been amended or new charges added I wish to waive a formal preliminary hearing or arraignment before the court and ask the court to enter plea(s) of not guilty on my behalf. My attorney has advised me of my rights: The right to trial and to a jury trial, if appropriate; my right to confront accusers; to subpoena witnesses; to remain silent; to counsel; to have this matter transferred to juvenile court, if appropriate; and my right to be presumed innocent until proven guilty beyond reasonable doubt. My attorney has also advised me of the possible penalties for the violations with which I am charged, and the possibility that I will be required to make restitution for damages, if appropriate.

I understand that my attorney will notify me of all appearance dates in this matter.

Date: ........ Defendant's Signature: .........................
APPEARANCE OF COUNSEL

I, ...................................., advise the court that I am the attorney of record for the above-named defendant. I have advised my client of all rights and the possible penalties for the charges filed against him or her. I understand that the court will expect me to represent the defendant in all hearings before the court in this matter.

(Please Print or Type)
............................ Attorney's Name
............................ Attorney's Address
............................
............................ ...................................
(Telephone Number) (Attorney Number)
Date:.......... Attorney's Signature:.............

(3) A defendant's use of written forms under this section shall not prevent his or her right to all other process, procedures, and defenses allowed by state and federal law.

Source:Laws 1999, LB 623, § 6;    Laws 2006, LB 1115, § 25;    Laws 2014, LB828, § 2.    


Annotations

29-4207. Rules of practice and procedure.

The Supreme Court may promulgate rules of practice and procedure for implementation of sections 29-4201 to 29-4207.

Source:Laws 1999, LB 623, § 7;    Laws 2006, LB 1115, § 26.    


29-4301. Legislative findings.

The Legislature finds that because of the fear and stigma that often results from crimes of sexual assault or domestic violence, and because of the risk of retaliatory violence by the perpetrator, many victims hesitate to seek help even when it is available at no cost to them. Without assurances that communications made while receiving assistance in overcoming the adverse effects of a sexual assault or domestic violence situation will be confidential and protected from disclosure, victims will be even more reluctant to seek assistance or to confide openly to their advocates and to explore legal and social remedies fully. As a result, victims may fail to receive needed vital care and counseling and thus lack the support, resources, and information necessary to recover from the crime, to report the crime, to assist in the prosecution of the crime, to participate effectively in the justice system, to achieve legal protections, and to prevent future sexual assaults and domestic violence. This is a matter of statewide concern, and the prevention of violence is for the protection of the health, safety, and welfare of the public.

Source:Laws 2004, LB 613, § 1.    


29-4302. Terms, defined.

For purposes of sections 29-4301 to 29-4304:

(1) Advocate means any employee or supervised volunteer of a domestic violence and sexual assault victim assistance program or of any other agency, business, or organization that is not affiliated with a law enforcement or prosecutor's office, whose primary purpose is assisting domestic violence and sexual assault victims;

(2) Victim means a person who communicates with an advocate for assistance in overcoming the adverse effects of domestic violence or sexual assault; and

(3) Confidential communication means any written or spoken information exchanged between a victim and an advocate in private or in the presence of a third party who is necessary to facilitate communication or further the advocacy process and which is disclosed to the advocate for the purposes of overcoming the adverse effects of domestic violence or sexual assault.

Source:Laws 2004, LB 613, § 2.    


29-4303. Confidential communications; disclosure; when.

(1) A victim, an advocate without the consent of the victim, a third party as described in subdivision (3) of section 29-4302 without the consent of the victim, or a minor or incapacitated victim without the consent of a custodial guardian or a guardian ad litem appointed upon application of either party, shall not be compelled to give testimony or to produce records concerning a confidential communication for any purpose in any criminal, civil, legislative, administrative, or other proceeding, except as follows:

(a) The party seeking disclosure of a confidential communication shall, in a criminal, civil, or administrative proceeding, file a motion that sets forth specifically the issues on which disclosure is sought and enumerates the reasons why the party is seeking disclosure and why disclosure is necessary, accompanied by an affidavit or affidavits containing specific information which establishes that the confidential communication constitutes relevant and material evidence in the case; and

(b) If the party seeking disclosure has complied with subdivision (a) of this subsection, the court or a hearing officer shall review the confidential communication in camera and out of the presence and hearing of all persons, except the victim, the advocate, and any other person the victim is willing to have present, to determine whether a failure to disclose the confidential communication would violate the constitutional rights of the party seeking disclosure.

(2) An advocate, a victim, or a third party as described in subdivision (3) of section 29-4302 cannot be compelled to provide testimony in any criminal, civil, legislative, administrative, or other proceeding that would identify the name, address, location, or telephone number of a safe house, abuse shelter, or other facility that provided temporary emergency shelter to the victim of the offense that is the subject of the proceeding unless the facility is a party to the proceeding.

Source:Laws 2004, LB 613, § 3.    


29-4304. Confidential communications; waiver; sections, how construed.

(1) A victim does not waive the protections afforded by sections 29-4301 to 29-4304 by testifying in court about the offense, except that:

(a) If the victim partially discloses the contents of a confidential communication in the course of testifying, then either party may request the court to rule that justice requires the protections afforded by sections 29-4301 to 29-4304 be waived to the extent the protections apply to that portion of the confidential communication; and

(b) Any waiver shall apply only to the extent necessary to require any witness to respond to counsel's questions concerning a confidential communication that is relevant to the case.

(2) An advocate cannot waive the protections afforded a victim under sections 29-4301 to 29-4304. However, if a victim brings suit against an advocate or the agency, business, or organization in which the advocate was employed or served as a volunteer at the time of the advocacy relationship, the advocate may testify or produce records regarding confidential communications with the victim and is not in violation of sections 29-4301 to 29-4304.

(3) Sections 29-4301 to 29-4304 shall not relieve an advocate of any duty to report suspected adult abuse or neglect as required by section 28-372 or suspected child abuse or neglect as required by section 28-711 or any other legal duty to report a criminal or unlawful act.

(4) Sections 29-4301 to 29-4304 shall not be construed to limit any other testimonial privilege available to any person under the laws of this state.

Source:Laws 2004, LB 613, § 4.    


29-4305. Law enforcement agencies, prosecuting attorneys, and Office of Probation Administration; duties.

On or before July 1, 2005, all law enforcement agencies, prosecuting attorneys, and the Office of Probation Administration shall develop, adopt, promulgate, and implement written policies and procedures regarding crimes between intimate partners as defined in section 28-323.

Source:Laws 2004, LB 613, § 11.    


29-4306. Collection of evidence; requirements.

Every health care professional as defined in section 44-5418 or any person in charge of any emergency room in this state:

(1) Shall utilize a standardized sexual assault evidence collection kit approved by the Attorney General; and

(2) Shall collect forensic evidence with the consent of the sexual assault or domestic violence victim without separate authorization by a law enforcement agency. If the sexual assault or domestic violence victim is eighteen years of age, the consent of or notification of the parent, parents, guardian, or any other person having custody of the sexual assault or domestic violence victim is not required.

Source:Laws 2005, LB 713, § 1;    Laws 2011, LB479, § 1.    


29-4307. City of the primary or metropolitan class; annual report.

On or before December 1, 2020, and annually thereafter, each city of the primary class and city of the metropolitan class shall make a report listing the number of untested sexual assault evidence collection kits for such city. The report shall contain aggregate data only and shall not contain any personal identifying information. The report shall be made publicly available on the city's website and shall be electronically submitted to the Attorney General and to the Legislature.

Source:Laws 2020, LB881, § 1.    


29-4308. Act, how cited.

Sections 29-4308 to 29-4315 shall be known and may be cited as the Sexual Assault Victims' Bill of Rights Act.

Source:Laws 2020, LB43, § 1.    


29-4309. Terms, defined.

For the purposes of the Sexual Assault Victims' Bill of Rights Act:

(1)(a) Advocate means:

(i) Any employee or supervised volunteer of a domestic violence and sexual assault victim assistance program or of any other agency, business, or organization that is not affiliated with a law enforcement or prosecutor's office, whose primary purpose is assisting domestic violence and sexual assault victims. This includes employees or supervised volunteers of an Indian tribe or a postsecondary educational institution;

(ii) A representative from a victim and witness assistance center as established in sections 81-1845 to 81-1847 or a similar entity affiliated with a law enforcement agency or prosecutor's office; or

(iii) An advocate who is employed by a child advocacy center that meets the requirements of subsection (2) of section 28-728.

(b) If reasonably possible, an advocate shall speak the victim's preferred language or use the services of a qualified interpreter;

(2) Health care provider means any individual who is licensed, certified, or registered to perform specified health services consistent with state law;

(3) Sexual assault means a violation of section 28-319, 28-319.01, 28-320, 28-320.01, 28-320.02, 28-322.01, 28-322.02, 28-322.03, 28-322.04, 28-322.05, 28-703, or 28-1463.03, sex trafficking or sex trafficking of a minor under section 28-831, or subdivision (1)(c) or (g) of section 28-386 or subdivision (1)(d), (e), or (f) of section 28-707;

(4) Sexual assault forensic evidence means evidence collected by a health care provider contained within any sexual assault forensic evidence collection kit, including a toxicology kit, or any forensic evidence collected by law enforcement through the course of an investigation; and

(5)(a) Sexual assault victim or victim means any person who is a victim of sexual assault who reports such sexual assault:

(i) To a health care provider, law enforcement, or an advocate, including anonymous reporting as provided in section 28-902; and

(ii) In the case of a victim who is under eighteen years of age, to the Department of Health and Human Services.

(b) Sexual assault victim or victim also includes, if the victim described in subdivision (5)(a) of this section is incompetent, deceased, or a minor who is unable to consent to counseling services, such victim's parent, guardian, or spouse, unless such person is the reported assailant.

Source:Laws 2020, LB43, § 2.    


29-4310. Privileged communication; presence of others; effect; prosecutor; duty.

Notwithstanding any provision of Chapter 27, article 5, any communication with a victim which is privileged, whether by statute, court order, or common law, shall retain such privilege regardless of who is present during the communication so long as the victim has a privilege with respect to each individual present. Nothing in this section shall relieve the prosecutor of the prosecutor's duty to disclose and make known to the defendant or the defendant's attorney any and all exculpatory material or information suitable for impeachment which is known to the prosecutor.

Source:Laws 2020, LB43, § 3.    


29-4311. Medical evidentiary or physical examinations; rights of victim.

(1) A victim has the right to have an advocate of the victim's choosing present during a medical evidentiary or physical examination. The health care provider shall contact the advocate before beginning the medical evidentiary or physical examination, unless declined by the victim. If an advocate cannot appear in a timely manner, the health care provider shall inform the victim of the potential impact of delaying the examination.

(2) A victim retains such right to have an advocate present at any time during any medical evidentiary or physical examination, regardless of whether the victim has previously waived such right.

(3) A victim has the right to a free forensic medical examination as provided in section 81-1429.03 without regard to whether a victim participates in the criminal justice system or cooperates with law enforcement.

(4) A victim has the right to be provided health care in accordance with best practices and established protocols for age-appropriate sexual assault forensic medical examinations as set forth in publications of the Office on Violence Against Women of the United States Department of Justice.

(5) A victim has the protection of confidential communications as provided in sections 29-4301 to 29-4304.

(6) A victim has the right to shower at no cost after the medical evidentiary or physical examination, unless showering facilities are not available.

(7) A victim has the right to anonymous reporting as provided in section 28-902.

Source:Laws 2020, LB43, § 4.    


29-4312. Interview or deposition; rights of victim.

(1)(a) A victim has the right to have an advocate present during an interview by a peace officer, prosecutor, or defense attorney, unless no advocate can appear in a reasonably timely manner. In an interview involving a prosecutor, the prosecutor shall inform the victim of the victim's rights under this subsection. The peace officer, prosecutor, or defense attorney shall contact the advocate before beginning the interview, unless declined by the victim.

(b) A victim has the right to have an advocate present during a deposition as provided in sections 29-1917 and 29-1926.

(c) An advocate present at an interview or deposition under this subsection shall not interfere in the interview or deposition or provide legal advice.

(d) Nothing in this subsection shall preclude law enforcement officers or prosecutors from contacting a victim directly to make limited inquiries regarding the sexual assault.

(2) A victim has the right to be interviewed by a peace officer of the gender of the victim's choosing, if such request can be reasonably accommodated by a peace officer that is properly trained to conduct such interviews.

(3) A victim has the right to be interviewed by a peace officer that speaks the victim's preferred language or to have a qualified interpreter available, if such request can be reasonably accommodated.

(4) A peace officer, prosecutor, or defense attorney shall not, for any reason, discourage a victim from receiving a medical evidentiary or physical examination.

(5) A victim has the right to counsel. This subsection does not create a new obligation by the state or a political subdivision to appoint or pay for counsel. Treatment of the victim shall not be affected or altered in any way as a result of the victim's decision to exercise such right to counsel.

(6) A victim who is a child three to eighteen years of age has the right to a forensic interview at a child advocacy center by a professional with specialized training as provided in section 28-728. The right to have an advocate, representative, or attorney present shall not apply during such a forensic interview.

Source:Laws 2020, LB43, § 5.    


29-4313. Sexual assault forensic evidence; rights of victim.

(1) A victim has the right to timely analysis of sexual assault forensic evidence.

(2) Subject to section 28-902, a health care provider shall notify the appropriate law enforcement agency of a victim's reported sexual assault and submit to law enforcement the sexual assault forensic evidence, if evidence has been obtained.

(3)(a) A law enforcement agency shall collect the sexual assault forensic evidence upon notification by the health care provider and shall retain the sexual assault forensic evidence for the longer of the statute of limitations applicable to the sexual assault or the retention period set forth in subsection (4) of section 28-902.

(b)(i) Except as provided in subdivision (3)(b)(ii) of this section, no later than sixty days before expiration of the retention period described in subdivision (3)(a) of this section, the law enforcement agency shall notify the victim of any intended destruction or disposal of the sexual assault forensic evidence. Upon request by the victim, the law enforcement agency shall preserve the sexual assault forensic evidence for an additional twenty years.

(ii) Subdivision (3)(b)(i) of this section does not apply to sexual assault forensic evidence which has been provided anonymously.

(c) Each law enforcement agency which stores sexual assault forensic evidence shall have a written policy that details retention periods for sexual assault forensic evidence and methods for carrying out the notifications required by subdivision (3)(b) of this section.

(4) A victim has a right to contact the investigating law enforcement agency and be provided with information on the status of the processing and analysis of the victim's sexual assault forensic evidence, if the victim did not report anonymously.

(5) A victim has the right to have the results of the analysis of the victim's sexual assault forensic evidence uploaded to the appropriate local, state, and federal DNA databases, as allowed by law.

(6) A victim has the right to be informed by the investigating law enforcement agency, upon the victim's request, of the results of analysis of the victim's sexual assault forensic evidence, whether the analysis yielded a DNA profile, and whether the analysis yielded a DNA match, either to the named perpetrator or to a suspect already in the Federal Bureau of Investigation's Combined DNA Index System, so long as the provision of such information would not hinder or interfere with investigation or prosecution of the case associated with such information.

(7) A victim has the right to be informed, upon the victim's request, when there is any change in the status of the victim's case, including if a case has been closed or reopened.

(8) A victim has the right to inspect or request copies of law enforcement reports concerning the sexual assault at the conclusion of the case.

Source:Laws 2020, LB43, § 6;    Laws 2024, LB870, § 1.    
Effective Date: July 19, 2024


29-4314. Sexual assault forensic evidence; uses prohibited.

Sexual assault forensic evidence from a victim shall not be used:

(1) To prosecute such victim for any misdemeanor crime or any crime under the Uniform Controlled Substances Act; or

(2) As a basis to search for further evidence of any misdemeanor crime or any crime under the Uniform Controlled Substances Act that may have been committed by the victim.

Source:Laws 2020, LB43, § 7.    


Cross References

29-4315. Explanation of rights; required, when; contents.

(1) Upon an initial interaction with a victim relating to or arising from a sexual assault of such victim, a health care provider or peace officer, and in the case of a victim under eighteen years of age, the Department of Health and Human Services, shall provide the victim with information that explains the rights of victims under the Sexual Assault Victims' Bill of Rights Act and other relevant law. The information shall be presented in clear language that is comprehensible to a person proficient in English at the fifth grade level, accessible to persons with visual disabilities, and available in all major languages spoken in this state. This information shall include, but not be limited to:

(a) A clear statement that a victim is not required to participate in the criminal justice system or to undergo a medical evidentiary or physical examination in order to retain the rights provided by the act and other relevant law;

(b) Contact information for appropriate services provided by professionals in the fields of domestic violence and sexual assault, including advocates;

(c) State and federal relief available to victims of crime;

(d) Law enforcement protection available to the victim, including domestic violence protection orders, harassment protection orders, and sexual assault protection orders and the process to obtain such protection;

(e) Instructions for requesting information regarding the victim's sexual assault forensic evidence as provided in section 29-4313; and

(f) State and federal compensation funds for medical and other costs associated with the sexual assault and information on any municipal, state, or federal right to restitution for a victim in the event of a conviction.

(2) The information to be provided under subsection (1) of this section shall be developed by the Attorney General and the Nebraska Commission on Law Enforcement and Criminal Justice with input from prosecutors, sexual assault victims, and organizations with a statewide presence with expertise on domestic violence, sexual assault, and child sexual assault.

(3) The information to be provided under subsection (1) of this section shall be made available for viewing and download on the websites of the Department of Health and Human Services and the Nebraska Commission on Law Enforcement and Criminal Justice. Other relevant state agencies are also encouraged to make such information available on their websites.

Source:Laws 2020, LB43, § 8.    


29-4316. Criminal justice agencies and attorneys; maintain confidentiality of victim of sexual assault or sex trafficking.

(1) For purposes of this section:

(a) Criminal justice agency has the same meaning as in section 29-3509;

(b) Sex trafficking means sex trafficking or sex trafficking of a minor in violation of section 28-831; and

(c) Sexual assault means a violation of section 28-319, 28-319.01, 28-320, 28-320.01, 28-320.02, 28-322.01, 28-322.02, 28-322.03, 28-322.04, 28-322.05, 28-703, or 28-1463.03 or subdivision (1)(c) or (g) of section 28-386 or subdivision (1)(d), (e), or (f) of section 28-707.

(2) Except as provided in subsection (3) of this section, and unless otherwise required by statute, a criminal justice agency and any attorney involved in the investigation or prosecution of an alleged sexual assault or sex trafficking violation shall maintain the confidentiality of the identity and personal identifying information of the alleged victim. Such information may be shared by such criminal justice agencies and between such criminal justice agencies and attorneys as necessary to carry out their duties.

(3) The confidentiality required by subsection (2) of this section does not apply:

(a) To the extent waived by the alleged victim;

(b) If criminal charges involving the alleged sexual assault or sex trafficking are filed;

(c) If the victim has died as a result of, or in connection with, the alleged sexual assault or sex trafficking;

(d) In cases where personal identifying information or the identity of the victim are released as part of a child abduction alert system used by law enforcement agencies, such as the AMBER Alert system;

(e) To a person making a report of suspected child abuse or neglect as required in section 28-711;

(f) To the sharing of reports and information regarding child abuse and neglect with a child abuse and neglect investigation team or child abuse and neglect treatment team provided for in section 28-728;

(g) To the Department of Health and Human Services and other assisting agencies as necessary to carry out their duties in investigations of child abuse or neglect;

(h) To communication with an individual that an educational entity, as defined in section 79-1201.01, has designated:

(i) As a Title IX coordinator; or

(ii) To receive reports related to sexual assault or sex trafficking or to provide supportive measures related to such reports; or

(i) To communication with advocates and health care providers as defined in section 29-4309.

Source:Laws 2022, LB1246, § 1.    


29-4317. Health care provider, emergency medical services provider, laboratory, or pharmacy; provision of certain services related to sexual assault, domestic assault, or child abuse; acts prohibited.

(1) A health care provider, an emergency medical services provider, a laboratory, or a pharmacy providing medical services, transportation, medications, or other services related to the examination or treatment of injuries arising out of sexual assault as defined in section 29-4309, domestic assault under section 28-323, or child abuse under section 28-707 shall not:

(a) Refer a bill for such services to a collection agency or an attorney for collection against the victim or the victim's guardian or family;

(b) Distribute information regarding such services and status of payment in any way that would affect the credit rating of the victim or the victim's guardian or family; or

(c) Take any other action adverse to the victim or the victim's guardian or family on account of providing such services.

(2) This section shall not be construed to prevent an entity described in subsection (1) of this section from otherwise seeking payment for such services from the victim or any other source.

(3) If a collection agency or an attorney is referred a debt for a bill described in subsection (1) of this section, then upon notice of the applicability of this section, the collection agency or attorney shall return the debt to the referring health care provider, emergency medical services provider, laboratory, or pharmacy.

(4) No private cause of action shall exist under this section against a debt collector.

Source:Laws 2023, LB157, § 5.    


29-4401. Presentence investigation; sentence suspension; probation; court orders; considerations.

(1) When any person is found guilty of a crime involving abuse as defined in section 42-903, the judge shall order a presentence investigation to be completed and returned to the court for consideration at the time of sentencing.

(2) At the time of sentencing, the court shall consider the safety and protection of the victim of abuse and any member of the victim's family or household when suspending a sentence or granting probation.

(3) The court may order the convicted person to complete a domestic abuse intervention program at the convicted person's expense in addition to any other penalties.

Source:Laws 2004, LB 613, § 9.    


29-4402. House arrest; prohibited.

When a person is found guilty of a crime involving abuse as defined in section 42-903, a court shall not order house arrest for the person in the residence of the victim, regardless of the ownership of the residence.

Source:Laws 2004, LB 613, § 10.    


29-4501. Legislative findings.

The Legislature finds that to electronically record statements made during a custodial interrogation is an effective way to document a free, knowing, voluntary, and intelligent waiver of a person's right to remain silent, to agree to answer questions, to decide to have an attorney present during such questioning, and to decide to have an attorney provided to such person if he or she cannot afford an attorney, as provided by the Constitution of the United States and the Constitution of Nebraska. Providing a record of the statement made during a custodial interrogation and any waiver of constitutional rights will reduce speculation and claims that may arise as to the content of the statement. Such a record of the content of the statement will aid law enforcement officers in analyzing and rejecting untruthful statements and will aid the factfinder in determining whether a statement was freely, knowingly, voluntarily, and intelligently made.

Source:Laws 2008, LB179, § 1.    


29-4502. Terms, defined.

For purposes of sections 29-4501 to 29-4508:

(1) Custodial interrogation has the meaning prescribed to it under the Fourth and Fifth Amendments to the Constitution of the United States and Article I, sections 3 and 7, of the Constitution of Nebraska, as interpreted by the United States Supreme Court and the Nebraska Supreme Court;

(2) Electronically record means to record using an audio recording device, a digital recording device, or a video recording device;

(3) Place of detention means a police station, sheriff's office, troop headquarters, courthouse, county attorney's office, juvenile or adult correctional or holding facility, community correctional center, or building under the permanent control of law enforcement at which the person is in custody pursuant to the authority of a law enforcement officer; and

(4) Reasonable exception means circumstances in which:

(a) A statement was made when it was not practicable to electronically record the statement;

(b) Equipment to electronically record the statement could not be reasonably obtained;

(c) The person in custody refused to have the statement electronically recorded;

(d) The equipment used to electronically record the statement malfunctioned; or

(e) The law enforcement officer conducting the statement reasonably believed that the crime for which the person was taken into custody was not a crime described in subsection (2) of section 29-4503.

Source:Laws 2008, LB179, § 2.    


29-4503. Electronic recordation of statements and waiver of rights required; when.

(1) All statements relating to crimes described in subsection (2) of this section and statements regarding rights described in section 29-4501 or the waiver of such rights made during a custodial interrogation at a place of detention that are described in subsection (2) of this section shall be electronically recorded.

(2) Statements subject to subsection (1) of this section are those statements relating to:

(a) Crimes resulting in death or felonies involving (i) sexual assault, (ii) kidnapping, (iii) child abuse, or (iv) strangulation; or

(b) Offenses being investigated as part of the same course of conduct as the offenses described in subdivision (a) of this subsection.

Source:Laws 2008, LB179, § 3.    


29-4504. Law enforcement officer; failure to comply with electronic recordation requirement; jury instruction.

Except as otherwise provided in sections 29-4505 to 29-4507, if a law enforcement officer fails to comply with section 29-4503, a court shall instruct the jury that they may draw an adverse inference for the law enforcement officer's failure to comply with such section.

Source:Laws 2008, LB179, § 4.    


29-4505. Defendant; testimony contrary to statement; use of statement authorized.

(1) If a defendant testifies contrary to his or her statement made during a custodial interrogation at a place of detention which was not electronically recorded, such statement may be used for the purpose of impeachment if it is shown that the statement was freely, knowingly, voluntarily, and intelligently made.

(2) A jury instruction shall not be required if the prosecution proves, by a preponderance of the evidence, that there is a reasonable exception for there not being an electronic recording.

Source:Laws 2008, LB179, § 5.    


29-4506. Law enforcement officer; failure to comply with electronic recordation requirement; admissibility of evidence.

If a law enforcement officer fails to comply with section 29-4503, such failure shall not bar the use of any evidence derived from such statement if the court determines that the evidence is otherwise admissible.

Source:Laws 2008, LB179, § 6.    


29-4507. Statement obtained out-of-state or by federal law enforcement officer; admissible; when.

Any statement made during a custodial interrogation shall be admissible against such person in a criminal proceeding in this state if:

(1) The statement was obtained in another state and was obtained in compliance with the laws of that state; or

(2) The statement was obtained by a federal law enforcement officer in this state or another state, was obtained in compliance with the laws of the United States, and was not taken by a federal law enforcement officer in an attempt to circumvent sections 29-4501 to 29-4508.

Source:Laws 2008, LB179, § 7.    


29-4508. Inaudible portions; how treated.

The existence of inaudible portions of an electronic recording, which are not the result of bad faith by a law enforcement officer to produce an inaudible result, standing alone, shall not render a statement out of compliance with section 29-4503.

Source:Laws 2008, LB179, § 8.    


29-4601. Act, how cited.

Sections 29-4601 to 29-4608 shall be known and may be cited as the Nebraska Claims for Wrongful Conviction and Imprisonment Act.

Source:Laws 2009, LB260, § 1.    


29-4602. Legislative findings.

The Legislature finds that innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have been uniquely victimized, have distinct problems reentering society, and have difficulty achieving legal redress due to a variety of substantive and technical obstacles in the law. The Legislature also finds that such persons should have an available avenue of redress. In light of the particular and substantial horror of being imprisoned for a crime one did not commit, the Legislature intends by enactment of the Nebraska Claims for Wrongful Conviction and Imprisonment Act that persons who can demonstrate that they were wrongfully convicted shall have a claim against the state as provided in the act.

Source:Laws 2009, LB260, § 2.    


29-4603. Recovery; claimant; proof required.

In order to recover under the Nebraska Claims for Wrongful Conviction and Imprisonment Act, the claimant shall prove each of the following by clear and convincing evidence:

(1) That he or she was convicted of one or more felony crimes and subsequently sentenced to a term of imprisonment for such felony crime or crimes and has served all or any part of the sentence;

(2) With respect to the crime or crimes under subdivision (1) of this section, that the Board of Pardons has pardoned the claimant, that a court has vacated the conviction of the claimant, or that the conviction was reversed and remanded for a new trial and no subsequent conviction was obtained;

(3) That he or she was innocent of the crime or crimes under subdivision (1) of this section; and

(4) That he or she did not commit or suborn perjury, fabricate evidence, or otherwise make a false statement to cause or bring about such conviction or the conviction of another, with respect to the crime or crimes under subdivision (1) of this section, except that a guilty plea, a confession, or an admission, coerced by law enforcement and later found to be false, does not constitute bringing about his or her own conviction of such crime or crimes.

Source:Laws 2009, LB260, § 3.    


Annotations

29-4604. Recovery of damages; determination of amount; restrictions.

(1) A claimant under the Nebraska Claims for Wrongful Conviction and Imprisonment Act shall recover damages found to proximately result from the wrongful conviction and that have been proved based upon a preponderance of the evidence.

(2) The following costs shall not offset damages:

(a) Costs of imprisonment; and

(b) Value of any care or education provided to the claimant while he or she was imprisoned.

(3) No damages shall be payable to the claimant for any period of time during which he or she was concurrently imprisoned for any unrelated criminal offense.

(4) In no case shall damages awarded under the act exceed five hundred thousand dollars per claimant per occurrence.

(5) A claimant's cause of action under the act shall not be assignable and shall not survive the claimant's death.

Source:Laws 2009, LB260, § 4.    


Annotations

29-4605. Extinguishment of lien for costs of defense services.

If the court finds that any property of the claimant was subjected to a lien to recover costs of defense services rendered by the state to defend the claimant in connection with the criminal case that resulted in his or her wrongful conviction, the court shall extinguish the lien.

Source:Laws 2009, LB260, § 5.    


29-4606. Provision of services to claimant; how treated.

Nothing contained in the Nebraska Claims for Wrongful Conviction and Imprisonment Act shall preclude the state from providing services to the claimant upon exoneration, and the reasonable value of services provided shall be treated as an advance against any award or judgment under the act.

Source:Laws 2009, LB260, § 6.    


29-4607. Filing of claim.

A claim brought pursuant to the Nebraska Claims for Wrongful Conviction and Imprisonment Act shall be filed under the State Tort Claims Act.

Source:Laws 2009, LB260, § 7.    


Cross References

29-4608. Claimant; rights; recovery under act; effect.

Nothing in the Nebraska Claims for Wrongful Conviction and Imprisonment Act shall limit the claimant from making any other claim available against any other party or based upon any other theory of recovery, except that a claimant who recovers a claim under the act shall not have any other claim against the state based upon any other theory of recovery or law.

Source:Laws 2009, LB260, § 8.    


29-4701. Terms, defined.

For purposes of sections 29-4701 to 29-4706:

(1) Benefit means any plea bargain, bail consideration, reduction or modification of sentence, or any other leniency, immunity, financial payment, reward, or amelioration of current or future conditions of incarceration that has been requested by the jailhouse informant or that has been offered or may be offered in the future to the jailhouse informant in connection with his or her testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness; and

(2) Jailhouse informant means a person who offers testimony about statements made by a suspect or defendant while the suspect or defendant and jailhouse informant were in the custody of any jail or correctional institution and who has requested or received or may in the future receive a benefit in connection with such testimony.

Source:Laws 2019, LB352, § 1.    


29-4702. Applicability.

Sections 29-4701 to 29-4706 apply to any case in which a suspect or defendant is charged with a felony.

Source:Laws 2019, LB352, § 2.    


29-4703. Prosecutor's office; duties.

Each prosecutor's office shall undertake measures to maintain a searchable record of:

(1) Each case in which:

(a) Trial testimony is offered or provided by a jailhouse informant against a suspect's or defendant's interest; or

(b) A statement from a jailhouse informant against a suspect's or defendant's interest is used and a criminal conviction is obtained; and

(2) Any benefit requested by or offered or provided to a jailhouse informant in connection with such statement or trial testimony.

Source:Laws 2019, LB352, § 3.    


29-4704. Disclosures required; deadline; redaction of information; prosecutor; duties.

(1) Except as provided in subsection (3) of this section, if a prosecutor intends to use the testimony or statement of a jailhouse informant at a defendant's trial, the prosecutor shall disclose to the defense:

(a) The known criminal history of the jailhouse informant;

(b) Any benefit requested by or offered or provided to a jailhouse informant or that may be offered or provided to the jailhouse informant in the future in connection with such testimony;

(c) The specific statements allegedly made by the defendant against whom the jailhouse informant will testify or provide a statement and the time, place, and manner of the defendant's disclosures;

(d) The case name and jurisdiction of any criminal case known to the prosecutor in which the jailhouse informant testified or a prosecutor intended to have the jailhouse informant testify about statements made by another suspect or criminal defendant that were disclosed to the jailhouse informant and whether the jailhouse informant requested, was offered, or received any benefit in exchange for or subsequent to such testimony; and

(e) Any occasion known to the prosecutor in which the jailhouse informant recanted testimony about statements made by another suspect or defendant that were disclosed to the jailhouse informant and any transcript or copy of such recantation.

(2) The prosecutor shall disclose the information described in subsection (1) of this section to the defense as soon as practicable after discovery, but no later than thirty days before trial. If the prosecutor seeks to introduce the testimony of a jailhouse informant that was not known until after such deadline, or if the information described in subsection (1) of this section could not have been discovered or obtained by the prosecutor with the exercise of due diligence at least thirty days before the trial or other criminal proceeding, the court may permit the prosecutor to disclose the information as soon as is practicable after the thirty-day period.

(3) If the court finds by clear and convincing evidence that disclosing information listed in subsection (1) of this section will result in the possibility of bodily harm to a jailhouse informant or that a jailhouse informant will be coerced, the court may permit the prosecutor to redact some or all of such information.

(4) If, at any time subsequent to the deadline in subsection (2) of this section, the prosecutor discovers additional material required to be disclosed under subsection (1) of this section, the prosecutor shall promptly:

(a) Notify the court of the existence of the additional material; and

(b) Disclose such material to the defense, except as provided in subsection (3) of this section.

Source:Laws 2019, LB352, § 4.    


29-4705. Jailhouse informant receiving leniency; notice to victim.

If a jailhouse informant receives leniency related to a pending charge, a conviction, or a sentence for a crime against a victim as defined in section 29-119, in connection with offering or providing testimony against a suspect or defendant, the prosecutor shall notify such victim. Prior to reaching a plea agreement, the prosecutor shall proceed as provided in subsection (1) of section 23-1201. For purposes of this section, leniency means any plea bargain, reduced or dismissed charges, bail consideration, or reduction or modification of sentence.

Source:Laws 2019, LB352, § 5.    


29-4706. Court orders authorized.

If, at any time during the course of the proceedings, it is brought to the attention of the court that the prosecutor has failed to comply with section 29-4704, or an order issued pursuant to this section, the court may:

(1) Order the prosecutor to disclose materials not previously disclosed;

(2) Grant a continuance;

(3) Prohibit the prosecutor from calling a witness not disclosed or introducing in evidence the material not disclosed; or

(4) Enter such other order as it deems just under the circumstances.

Source:Laws 2019, LB352, § 6.    


29-4801. Terms, defined.

For purposes of sections 29-4801 to 29-4807:

(1) Case plan means a set of goals, conditions, and programs that is:

(a) Based on a professional risk and needs assessment;

(b) Tailored to the specific risks and needs of the veteran; and

(c) Developed in collaboration with the veteran;

(2) Condition from military service means substance-use disorder, military sexual trauma, traumatic brain injury, post-traumatic stress disorder, or another mental health condition that is related to an individual's military service in some manner and includes psychological effects from a veteran's time in service as well as from the period of family separation related to deployment;

(3) Intimate partner has the same meaning as in section 28-323;

(4) Serious bodily injury has the same meaning as in section 28-109;

(5) Sexual contact and sexual penetration have the same meanings as in section 28-318;

(6) Veteran means an individual who:

(a) Is serving in the United States Armed Forces, including any reserve component or the National Guard;

(b) Has served in such armed forces and was discharged or released from such service under conditions other than dishonorable; or

(c) Has served in such armed forces and received a dishonorable discharge and such individual has been diagnosed with substance-use disorder, military sexual trauma, traumatic brain injury, post-traumatic stress disorder, or another mental health condition; and

(7) Veteran justice program means the program described in sections 29-4802 to 29-4804 through which a veteran may request a court to defer entry of judgment of conviction for an offense pending completion of the program, and upon successful completion, avoid entry of judgment of conviction.

Source:Laws 2024, LB253, § 1.    
Operative Date: July 1, 2025


29-4802. Veteran justice program; eligibility; confidential information.

(1) Except as provided in subsection (2) of this section, a defendant is eligible to participate in a veteran justice program if the defendant is a veteran and can show by clear and convincing evidence that a condition from military service contributed to the offense.

(2) A veteran is not eligible for participation in a veteran justice program if:

(a) The veteran is charged with:

(i) An offense that is not eligible for probation;

(ii) An offense that is listed in subdivision (1)(a)(i) of section 29-4003;

(iii) A violation of section 60-6,196 or 60-6,197, or a city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197, following two or more previous convictions for a violation of any such section or ordinance; or

(iv) An offense that resulted in the death of another person; or

(b) Deferring the entry of judgment would be prohibited under section 60-4,147.01.

(3) Any document or materials received by the court pursuant to sections 29-4802 to 29-4804 that contain military or medical records, reports, or evaluations shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge; attorneys to parties in the case; probation officers to whom a defendant's file is duly transferred; the probation administrator or his or her designee; alcohol and drug counselors, mental health practitioners, psychiatrists, and psychologists licensed or certified under the Uniform Credentialing Act to conduct substance abuse evaluations and treatment; or others entitled by law to receive such information, including personnel affiliated with the veteran justice program.

(4) Upon a court determination of eligibility for participation in a veteran justice program, the court shall provide notice to any victim or alleged victim of the offense committed by the veteran of such determination and the right of the veteran to request participation in a veteran justice program.

Source:Laws 2024, LB253, § 2.    
Operative Date: July 1, 2025


Cross References

29-4803. Veteran justice program; created; use of deferred judgments; procedure.

(1) The probation administrator shall create a veteran justice program as provided in sections 29-4802 to 29-4804 and subject to the Supreme Court's rules. The program shall be available in every district court and county court. A veteran justice program shall not supersede, alter, or otherwise interfere with the establishment, functioning, participation, or operation of a problem solving court established pursuant to section 24-1302.

(2) A veteran justice program shall be operated by use of deferred judgments as provided in this section.

(3) Upon a finding of guilt for which a judgment of conviction may be rendered, a defendant that is eligible to participate in a veteran justice program may request the court defer the entry of judgment of conviction under this section. Upon such request, the court shall provide notice to any victim of the offense of the request and provide an opportunity for the victim to provide a statement for consideration by the court. After giving the prosecutor and defendant the opportunity to be heard, the court may defer the entry of a judgment of conviction and the imposition of a sentence and place the defendant on probation, upon conditions as the court may require under sections 29-2262 and 29-4804. If the court defers the entry of judgment, the court shall provide notice to victims of the offense.

(4)(a) Whenever a court considers a request to defer judgment under this section, the court shall consider the following:

(i) The factors set forth in subsections (2) and (3) of section 29-2260 and section 29-4802;

(ii) The supervision, treatment, and other programming options available in the community; and

(iii) Any other information the court deems relevant.

(b) Except as provided in subdivision (4)(c) of this section, there shall be a presumption that a veteran eligible under section 29-4802 shall be allowed to participate in a veteran justice program. The presumption shall only be overcome by a judicial finding, based on an individualized assessment of the veteran and consideration of the factors set forth in subdivisions (4)(a)(i), (ii), and (iii) of this section, that entry of judgment of conviction should not be deferred. The fact that a veteran has previously absconded from or violated pretrial release, probation, parole, supervised release, post-release supervision, or another form of court-ordered supervision, including a violation arising from commission of a new offense or an offense committed while previously participating in a veteran justice program, is not, standing alone, a sufficient basis to overcome the presumption.

(c) The presumption provided for in subdivision (4)(b) of this section does not apply to a veteran charged with:

(i) A violation of section 60-6,196 or 60-6,197, or a city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197, following a previous conviction for a violation of any such section or ordinance; or

(ii) An offense that resulted in serious bodily injury to another person.

(5) Except as otherwise provided in this section and sections 29-2293 and 29-2294, the supervision of a defendant on probation pursuant to a deferred judgment shall be governed by the Nebraska Probation Administration Act and sections 29-2270 to 29-2273.

(6) After a hearing providing the prosecutor and defendant an opportunity to be heard and upon a finding that a defendant has violated a condition of his or her probation, the court may enter any order authorized by section 29-2268 or pronounce judgment and impose such new sentence as might have been originally imposed for the offense for which the defendant was convicted.

(7) Upon satisfactory completion of the conditions of probation and the payment or waiver of all administrative and programming fees assessed under section 29-2293, the defendant or prosecutor may file a motion to withdraw any plea entered by the defendant and to dismiss the action without entry of judgment. The court shall not grant such motion until a victim of the offense has received notice and the opportunity to be heard, as required by subsection (4) of section 29-4804.

(8) Sections 29-4802 to 29-4804 apply to offenses committed on or after July 1, 2025. For purposes of this subsection, an offense shall be deemed to have been committed prior to July 1, 2025, if any element of the offense occurred prior to such date.

Source:Laws 2024, LB253, § 3.    
Operative Date: July 1, 2025


Cross References

29-4804. Veteran justice program; elements; discretionary matters; notice to victim.

(1) A veteran justice program shall include the following elements:

(a) Evidence-based treatment tailored to address the specific challenges facing veterans, such as post-traumatic stress disorder, traumatic brain injury, military sexual trauma, or another condition from military service; and

(b) A case plan that meets the requirements set forth in this section. The case plan shall be:

(i) Developed by the court with probation and appropriate experts;

(ii) Based on a professional assessment of the veteran's specific risks and needs. The assessment shall include an assessment of risk of intimate partner violence, regardless of the nature of the offense;

(iii) Created in conjunction with input from the veteran;

(iv) Designed to contain clear and individualized supervision and treatment goals, including guidelines that detail the program rules, consequences for violating the rules, and incentives for compliance; and

(v) Communicated to the veteran at the start of the program.

(2) If the offense includes sexual contact or sexual penetration, the victim of the offense is an intimate partner, or the assessment of the veteran under subdivision (1)(b)(ii) of this section identifies an increased risk of intimate partner violence, the case plan shall include specifically tailored treatment or programming to address sexual assaults and domestic violence. For any veteran required to participate in such treatment or programming, the court shall include conditions of supervision to protect victim safety that include, but are not limited to, requiring the surrender of firearms while participating in the veteran justice program.

(3) In the implementation of a veteran justice program, the district court or county court shall retain discretion in:

(a) Determining eligibility for participation, subject to sections 29-4802 and 29-4803;

(b) Establishing the conditions of the program, including the creation of the case plan;

(c) Setting the terms of successful program completion and release upon that successful completion; and

(d) Determining if the veteran has successfully completed the program at a final hearing.

(4) A victim of the offense shall be entitled to notice of the veteran's participation in the veteran justice program. Upon request of the victim, a victim shall be entitled to updates on the veteran's status and participation in the program. The victim shall be entitled to advance reasonable notice of a final hearing to determine successful program completion and the opportunity to be heard or submit a written statement at such hearing.

(5) Upon successful completion of a veteran justice program, the veteran shall be entitled to the relief provided for a deferred judgment under section 29-4803.

Source:Laws 2024, LB253, § 4.    
Operative Date: July 1, 2025


29-4805. Veteran status; considerations in sentencing.

(1) When arraigning any defendant, the court shall offer the defendant the ability to communicate his or her veteran status through counsel or by other means. The court shall not require that the defendant self-identify as a veteran in open court.

(2) When sentencing a defendant who is a veteran for any offense, the court shall recognize the defendant's veteran status as a mitigating factor in determining the sentence.

(3) The court shall consider a defendant's veteran status as a mitigating factor in addition to any other mitigating factors provided by law or considered by the court. The fact that a defendant may have suffered trauma unrelated to military service or veteran status shall not be used to deny the impact of any military trauma or condition of military service.

(4) The court may take into consideration individual merit earned during military service, overseas deployment, exposure to danger, and service-connected disability ratings when considering sentencing mitigation. When considering multiple factors, a court should give additional credit for each factor.

(5) If a defendant is a veteran, is eligible for probation, and demonstrates by clear and convincing evidence a connection between the offense and a condition from military service, a sentence of imprisonment is not appropriate unless the court finds, based on the criteria in subsections (2) and (3) of section 29-2260, that imprisonment is necessary for the protection of the public.

(6) The court shall not:

(a) Use veteran status as an aggravating factor; or

(b) Require a connection between the offense and a condition from military service in order to consider veteran status as a mitigating factor.

(7) This section applies regardless of whether a veteran is eligible for participation in a veteran justice program.

Source:Laws 2024, LB253, § 5.    
Operative Date: July 1, 2025


29-4806. Law enforcement, court, and correctional personnel; veteran status; verification; training.

(1) Law enforcement, court, and correctional personnel shall verify the veteran status of any individual being processed through the criminal justice system in order to identify individuals who may be eligible for participation in a veteran justice program or for sentencing mitigation as provided in section 29-4805.

(2) Law enforcement, court, and correctional personnel shall receive training designed to increase their understanding of cases involving veterans, including veterans' exposure to violence and trauma. Such training shall include attention on issues that disproportionately impact female veterans, such as military sexual trauma.

Source:Laws 2024, LB253, § 6.    
Operative Date: July 1, 2025


29-4807. Supreme Court Administrator; duties.

(1) The State Court Administrator shall compile information on the number of veterans receiving, successfully completing, declining, and denied participation in a veteran justice program and the sentencing mitigation described in section 29-4805.

(2) The State Court Administrator shall track outcomes among veterans who participate in a veteran justice program, including completion status, recidivism, and housing and employment status.

(3) Data collected under this section shall be disaggregated by race, ethnicity, gender, age, military discharge characterization, and the offense involved.

(4) On or before July 1, 2026, and on or before each July 1 thereafter, the State Court Administrator shall electronically submit a report to the Judiciary Committee of the Legislature. The report shall contain de-identified data collected pursuant to this section and shall analyze the outcomes, successes, and areas for improvement of the veteran justice programs and the sentencing mitigation described in section 29-4805.

Source:Laws 2024, LB253, § 7.    
Operative Date: July 1, 2025