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
In construction of criminal code, singular number includes the plural. Follmer v. State, 94 Neb. 217, 142 N.W. 908 (1913).
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Repealed.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
District judge is not included. Binfield v. State, 15 Neb. 484, 19 N.W. 607 (1884).
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
City prosecutor in a city of metropolitan class who is also a deputy county attorney is a "prosecuting attorney" within this section. State v. Kolosseus, 198 Neb. 404, 253 N.W.2d 157 (1977).
Assistant attorney general is agent of Attorney General, and official acts must be performed in name of his principal. Lower v. State, 106 Neb. 666, 184 N.W. 174 (1921).
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
Penal statute applies only to persons clearly within its terms. State v. Dailey, 76 Neb. 770, 107 N.W. 1094 (1906).
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
1. Construction
2. Miscellaneous
1. Construction
Penal statutes are inelastic, must be strictly construed, and are never extended by implication. Macomber v. State, 137 Neb. 882, 291 N.W. 674 (1940).
Railway car is a "building." Hardin v. State, 92 Neb. 298, 138 N.W. 146 (1912).
Where statute is adopted from another state, construction by courts of that state is ordinarily followed. State v. Martin, 87 Neb. 529, 127 N.W. 896 (1910).
There are no common law crimes in this state; common law definitions may be resorted to only where statute designates crimes in general terms. Kinnan v. State, 86 Neb. 234, 125 N.W. 594 (1910).
Language, capable of two constructions, is not construed to make an otherwise innocent act criminal. Gilbert v. State, 78 Neb. 636, 112 N.W. 293 (1907).
In construing a statute, words should be given usual meaning. State v. Byrum, 60 Neb. 384, 83 N.W. 207 (1900).
Violation of the very letter of law is essential to convict. Bailey v. State, 57 Neb. 706, 78 N.W. 284 (1899).
Statute providing how penalty, previously created, may be recovered is not penal and need not be strictly construed. Albion Nat. Bank v. Montgomery, 54 Neb. 681, 74 N.W. 1102 (1898).
2. Miscellaneous
Where defendant requested instruction reciting statute, he could not complain. Lovings v. State, 158 Neb. 134, 62 N.W.2d 672 (1954).
Prosecution for violation of city ordinance is civil proceeding when offense is not made crime by statute. Peterson v. State, 79 Neb. 132, 112 N.W. 306 (1907).
There can be no punishment for act not made penal by plain import of statute. State v. De Wolfe, 67 Neb. 321, 93 N.W. 746 (1903); Moore v. State, 53 Neb. 831, 74 N.W. 319 (1898).
"Original code" refers to code of 1873. Richards v. State, 65 Neb. 808, 91 N.W. 878 (1902).
Legislature intended to abolish hypertechnical rules of common law. Burlingim v. State, 61 Neb. 276, 85 N.W. 76 (1901).
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
It is a simple rule of statutory construction that terms which are not specifically defined are to be taken in the sense in which they are understood in common language. State v. Holman, 229 Neb. 57, 424 N.W.2d 627 (1988).
Related context and subject matter must be considered in construing penal statute. State v. Neal, 187 Neb. 413, 191 N.W.2d 458 (1971).
Terms must be taken and construed in the sense in which they are understood in common language. Wirth v. Calhoun, 64 Neb. 316, 89 N.W. 785 (1902).
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
Nebraska Criminal Code, see section 28-101.
Securities Act of Nebraska, see section 8-1123.
Annotations
1. Limitation of action
2. Fleeing from justice
1. Limitation of action
A complaint charging the defendant with second-offense driving under the influence was "pending" for statute of limitations purposes during the time period in which the State appealed to the district court and to the Supreme Court the county court's order granting the defendant's motion to quash. State v. Loyd, 275 Neb. 205, 745 N.W.2d 338 (2008).
In order for the tolling provision under subsection (1) of this section to apply, a subsequent indictment, information, or suit must charge the "same offense" as the prior indictment, information, or suit. State v. Loyd, 275 Neb. 205, 745 N.W.2d 338 (2008).
This section is inapplicable to evidence of prior bad acts. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
Pursuant to subsection (1) of this section, postconviction proceedings fall within the ambit of the phrase "proceedings . . . on writ of error". State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997).
Pursuant to subsection (1) of this section, the words "proceedings . . . set aside . . . on writ of error" mean proceedings set aside on appeal. State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997).
Chapter 29 applies only to criminal procedure, and therefore, the statute of limitations in this section has no application to civil cases. LaBenz Trucking v. Snyder, 246 Neb. 468, 519 N.W.2d 259 (1994).
Five-year period of limitations became effective August 25, 1989; act became effective 3 months after Legislature adjourned in absence of emergency clause. State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994).
The 3-year statute of limitations generally applicable to felony prosecutions does not apply to the crime of first degree murder. State v. White, 239 Neb. 554, 477 N.W.2d 24 (1991).
When in a prosecution for murder the statute of limitations bars a conviction for manslaughter, the defendant is not entitled to an instruction for manslaughter as a lesser-included offense of murder unless he or she elects to waive the defense of the statute of limitations. State v. Keithley, 236 Neb. 631, 463 N.W.2d 329 (1990).
Statute does not apply to cases involving termination of parental rights, as they are not criminal in nature. In re Interest of Hollenbeck, 212 Neb. 253, 322 N.W.2d 635 (1982).
The provision for issuance of an arrest warrant, in this section, is not a condition precedent to a prosecution. State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977).
The filing of a felony complaint before a magistrate charging embezzlement and the issuance of an arrest warrant within three years after date of offense tolls the statute of limitations. State v. Donoho, 190 Neb. 593, 210 N.W.2d 851 (1973).
A charge of failing to pay an installment of child support which accrued more than three years earlier was subject to defense of statute of limitations. State v. Journey, 186 Neb. 556, 184 N.W.2d 616 (1971).
Criminal prosecution for violation of statute based on illegal interest of city officer in contract with city must be brought within time prescribed in this section. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959).
Prosecution for violation of Blue Sky Law was barred by statute of limitations. Jacox v. State, 154 Neb. 416, 48 N.W.2d 390 (1951).
Three-year period of limitations does not apply to prosecutions for murder. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
With exception of certain crimes, prosecution is barred unless brought within time limited by this section, and pendency of prosecution in another county does not toll statute. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).
Statute does not bar action for criminal contempt though criminal prosecution for the same act would be barred. State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937).
An information charging forgery in language of statute charges a crime that is not barred by the three-year statute of limitations. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
Information charging embezzlement continuously over a period commencing over three years previously was good as to part of period within three years of filing information, but conviction reversed because both information and verdict failed to show amount embezzled within statute of limitations. Hogoboom v. State, 120 Neb. 525, 234 N.W. 422, 79 A.L.R. 1171 (1931).
Indictment must be found, or information filed, within time fixed. Gragg v. State, 112 Neb. 732, 201 N.W. 338 (1924); Boughn v. State, 44 Neb. 889, 62 N.W. 1094 (1895).
Prosecution for rape must be commenced in three years, and assault and battery in one year. Kramer v. Weigand, 91 Neb. 47, 135 N.W. 230 (1912).
Forgery falls within exception in section. State v. Leekins, 81 Neb. 280, 115 N.W. 1080 (1908).
Prosecution for selling intoxicating liquors must be brought within eighteen months. McArthur v. State, 60 Neb. 390, 83 N.W. 196 (1900).
Arrest and preliminary examination arrest running of statute only if magistrate had jurisdiction. State v. Robertson, 55 Neb. 41, 75 N.W. 37 (1898).
Crime of murder is regarded as committed at time fatal blow was struck though death results on subsequent date. Debney v. State, 45 Neb. 856, 64 N.W. 446 (1895).
Acts of first degree sexual assault committed on or before August 24, 1986, were time barred on August 25, 1989, the effective date of the 1989 amendment to this section and, therefore, were not subject to the extended statute of limitations implemented by the amendment. State v. Wiemer, 3 Neb. App. 821, 533 N.W.2d 122 (1995).
While the Legislature has the power to enact retroactive changes in a statute of limitations, it cannot remove a bar or limitation which has already become complete. State v. Hirsch, 1 Neb. App. 1120, 510 N.W.2d 534 (1993).
In habeas corpus proceeding where claim was made that court lacked jurisdiction because prosecution was barred by statute of limitations, adjudication in original prosecution that petitioner tolled statute by fleeing from justice is binding upon petitioner and federal court. Taylor v. O'Grady, 113 F.2d 798 (8th Cir. 1940).
2. Fleeing from justice
The phrase "fleeing from justice" means to leave one's usual abode or to leave the jurisdiction where an offense has been committed, with intent to avoid detection, prosecution, or punishment for some public offense. State v. Thomas, 236 Neb. 84, 459 N.W.2d 204 (1990).
Fleeing from justice contemplates that the accused has departed from his usual place of residence to a place where he cannot be found in the exercise of reasonable diligence by the officers. Emery v. State, 138 Neb. 776, 295 N.W. 417 (1940).
Fleeing from justice means a departure by a person from his usual place of abode, or from the place where he has committed an offense, with intent to avoid detection and prosecution for such public offense. Taylor v. State, 138 Neb. 156, 292 N.W. 233 (1940); Colling v. State, 116 Neb. 308, 217 N.W. 87 (1927).
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
Constitutional provisions:
Board of Pardons, see Article IV, section 13, Constitution of Nebraska.
Disqualification from holding office, see Article XV, sections 1 and 2, Constitution of Nebraska.
Disqualification from voting, see Article VI, section 2, Constitution of Nebraska.
Disqualification from voting, see section 32-313.
Pardons and paroles, see sections 29-2246 et seq., 83-188 et seq., and 83-1,126 et seq.
Annotations
The purpose of this section, as evident from its plain language, is to provide the mechanism by which a felon's right to vote is restored. Ways v. Shively, 264 Neb. 250, 646 N.W.2d 621 (2002).
Conviction does not deprive person of other or different civil rights than those specifically named. Bosteder v. Duling, 115 Neb. 557, 213 N.W. 809 (1927).
Objection that juror is disqualified may be waived. Turley v. State, 74 Neb. 471, 104 N.W. 934 (1905).
Information requested on questionnaire sent to prospective jurors was proper. Beatrice Foods Co. v. United States, 312 F.2d 29 (8th Cir. 1963).
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.
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.
Annotations
Because this section commits the determination whether to entertain a motion to suppress made after the commencement of trial to the discretion of the trial court, an appellate court reviews such a determination for an abuse of discretion. State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002).
The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. A motion to suppress, with certain exceptions, must be made in writing. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
Where none of the exceptions stated in this statute are applicable, failure to file a motion to suppress as required under this section constitutes a waiver to any objection to the statement. State v. Cronin, 227 Neb. 302, 417 N.W.2d 169 (1987).
This section requires that any objection as to the voluntariness of a statement of a defendant in a criminal case be made as a pretrial motion to suppress the statement, and failure to object at this stage results in a waiver of the objection. State v. Warren, 227 Neb. 160, 416 N.W.2d 249 (1987).
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.
Annotations
A defendant's successful motion in the district court to suppress evidence is not finally granted or determined, unless there is no appeal, until a judge of the Court of Appeals has decided the matter under this section. The time from the defendant's filing of such motion until final determination is excluded in the speedy trial calculation. State v. Hayes, 10 Neb. App. 833, 639 N.W.2d 418 (2002).
A trial court may, in its good judgment, correct its pretrial ruling on a motion to suppress statements, even though such a correction results in denial of the State's opportunity to appeal the decision to suppress the evidence. State v. Vaida, 1 Neb. App. 768, 510 N.W.2d 389 (1993).
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.
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.
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
Although the victim's parents, and not the victim's sister, were statutorily-defined "victims" under this section, the court did not abuse its discretion in allowing the sister to read her impact statement at sentencing where the parents were elderly, lived out of state, and did not want to participate in the resentencing. State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).
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.
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.
Annotations
Voluntary 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. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).
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
District judges have all of the required jurisdiction of magistrates. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).
District judge may hold preliminary hearing. Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953).
District judge may sit as examining magistrate. Cohoe v. State, 79 Neb. 811, 113 N.W. 532 (1907); State v. Dennison, 60 Neb. 192, 82 N.W. 628 (1900).
Preliminary hearing is in no sense a trial. Van Buren v. State, 65 Neb. 223, 91 N.W. 201 (1902).
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
It is mandatory duty of sheriff, where warrant is placed in his hands issued in another county, to apprehend the accused and remove him to the county where the crime is charged. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).
A law enforcement officer investigating a crime has the authority to detain a suspect with an outstanding arrest warrant outside the law enforcement officer's primary jurisdiction. State v. Hill, 12 Neb. App. 492, 677 N.W.2d 525 (2004).
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
Security, Privacy, and Dissemination of Criminal History Information Act, see section 29-3501.
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
Security, Privacy, and Dissemination of Criminal History Information Act, see section 29-3501.
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.
Cross References
Apprehension of persons, see section 29-215.
Liability for damages to third parties, see sections 13-911 and 81-8,215.01.
Nebraska Rules of the Road, emergency vehicle privileges, see section 60-6,114.
Uniform Act on Fresh Pursuit, see section 29-421.
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.
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.
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.
Cross References
Missing Children Identification Act, see section 43-2001 et seq.
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.
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
Interlocal Cooperation Act, see section 13-801.
Joint Public Agency Act, see section 13-2501.
Motor vehicle pursuit, see section 29-211.
Uniform Act on Fresh Pursuit, see section 29-421.
Annotations
This section is not a venue statute. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).
Subsection (2)(c)(ii)(C) of this section does not require that an officer requesting assistance tell the responding officer that he or she fears evidence will be lost; it asks whether the suspect may destroy or conceal evidence of the commission of a crime and whether an officer needs assistance in making an arrest. State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
This section does give certain extrajurisdictional arrest powers to certain law enforcement officers. This section only applies to Nebraska law enforcement officers and does not apply to law enforcement officers who cross state lines. This section does not authorize an out-of-state police officer to arrest a suspect for misdemeanor driving under the influence outside the officer's geographical jurisdiction. State v. Cuny, 257 Neb. 168, 595 N.W.2d 899 (1999).
Subsection (2)(d) of this section authorizes law enforcement to make an arrest outside his or her primary jurisdiction pursuant to an interlocal agreement, but there must be evidence that such an agreement exists and that it actually authorizes authority for the arrest. State v. Ohlrich, 20 Neb. App. 67, 817 N.W.2d 797 (2012).
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.
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.
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
The finding required by subsection (2) of this section, that the parents of a child under the age of 18 years have been notified of the child's arrest or that reasonable efforts to notify have been made, is not jurisdictional. State v. Taylor, 234 Neb. 18, 448 N.W.2d 920 (1989).
An arrest may not be used as a pretext to search for evidence. A pretext arrest is one where the arrest is only a sham, a front being used as an excuse for making a search. The determination of whether an arrest is pretextual is a question of fact for the trial court. This court will not reverse a trial court's finding on this question unless the finding is clearly erroneous. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).
Firing of shots at tires of speeding automobile was justified in making arrest. Breese v. Newman, 179 Neb. 878, 140 N.W.2d 805 (1966).
Arrest of person who fled from police officers was justified under facts. Sperry v. Greiner, 175 Neb. 524, 122 N.W.2d 463 (1963).
Jury was properly instructed as to the duties of sheriff to arrest and detain under this section. O'Dell v. Goodsell, 152 Neb. 290, 41 N.W.2d 123 (1950).
Mandamus will lie to compel city officers to use summary powers to prevent violations of law. Moores v. State ex rel. Dunn, 71 Neb. 522, 99 N.W. 249 (1904).
Arrest and detention without warrant by marshal was legal. Fry v. Kaessner, 48 Neb. 133, 66 N.W. 1126 (1896).
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
Evidence seized pursuant to an unlawful citizens arrest may still be admissible in absence of a showing of state action. State v. Houlton, 227 Neb. 215, 416 N.W.2d 588 (1987).
Jury award of five thousand dollars damages sustained against a private citizen who procured the unlawful arrest and detention of plaintiff. Huskinson v. Vanderheiden, 197 Neb. 739, 251 N.W.2d 144 (1977).
A police officer may arrest without a warrant when it appears that a felony has been committed and there are reasonable grounds to believe that the person arrested is guilty of the offense. State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211 (1963).
This section shows intent that provisions of this article apply to felonies and misdemeanors alike. Morrow v. State, 140 Neb. 592, 300 N.W. 843 (1941).
Arrest by private person, with cause to believe party arrested had committed a felony, was legal. Simmerman v. State, 16 Neb. 615, 21 N.W. 387 (1884).
Crime of which person arrested is suspected must have been committed. Kyner v. Laubner, 3 Neb. Unof. 370, 91 N.W. 491 (1902).
Search incident to arrest by Treasury Department agents was proper when agents saw revolver protruding from rear pocket of defendant who was trying to avoid them. United States v. Carter, 523 F.2d 476 (8th Cir. 1975).
Cited in determining that postal inspectors had probable cause to arrest defendant for carrying concealed weapon, a state felony. United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970).
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
Where the detention of a suspected shoplifter was unreasonable because it continued after the detainers knew their suspicions were groundless and that they had made a mistake, merchant held not protected under this section. Latek v. K Mart Corp., 224 Neb. 807, 401 N.W.2d 503 (1987).
The words "a merchant's employee" do not include a merchant's agent who is not an employee. Bishop v. Bockoven, Inc., 199 Neb. 613, 260 N.W.2d 488 (1977).
A telephone alert between cooperating store managers advising the location of one suspected of previous shoplifting does not constitute a civil conspiracy against the suspect. Dangberg v. Sears Roebuck & Co., 198 Neb. 234, 252 N.W.2d 168 (1977).
Instruction defining arrest in almost verbatim language of 5 Am. Jur. 2d, Arrest, was proper. Schmidt v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105 (1974).
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
Instruction defining arrest in almost verbatim language of 5 Am. Jur. 2d, Arrest, was proper. Schmidt v. Richman Gordman, Inc., 191 Neb. 345, 215 N.W.2d 105 (1974).
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
1. Complaint
2. Immunity
1. Complaint
Complaint charging unlawful operation of freight-carrying motor vehicle was properly filed with justice of the peace. Conkling v. DeLany, 167 Neb. 4, 91 N.W.2d 250 (1958).
Complaint in name of county attorney and verified by deputy county attorney does not confer jurisdiction upon examining magistrate. Morrow v. State, 140 Neb. 592, 300 N.W. 843 (1941).
In making allegation of venue, no particular form is required. Seay v. Shrader, 69 Neb. 245, 95 N.W. 690 (1903).
Complaint is jurisdictional; title is no part of complaint. White v. State, 28 Neb. 341, 44 N.W. 443 (1889).
Complaint charging offense in language of statute is sufficient. State ex rel. Bryant v. Lauver, 26 Neb. 757, 42 N.W. 762 (1889).
Complaint must charge all that is essential to constitute offense. Smith v. State, 21 Neb. 552, 32 N.W. 594 (1887).
Complaint is sufficient if it shows violation of law, and is not vitiated for redundant matter. Ex parte Maule, 19 Neb. 273, 27 N.W. 119 (1886).
Complaint must be sufficiently specific to negative innocence of defendant. Ex parte Eads, 17 Neb. 145, 22 N.W. 352 (1885).
Complaint for selling liquor was good. Brown v. State, 16 Neb. 658, 21 N.W. 454 (1884).
Complaint can be changed only by consent of complainant and by reverification. Lewis v. State, 15 Neb. 89, 17 N.W. 366 (1883).
2. Immunity
Lack of county attorney's consent and failure to furnish bond not jurisdictional defects and convictions cannot be challenged in proceedings for revocation of motor vehicle operator's license. Bohlen v. Kissack, 189 Neb. 262, 202 N.W.2d 171 (1972).
Accused is not immune from arrest even though out on bail pending trial for felony in another county. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).
A ministerial officer is not liable for false imprisonment when acting under warrant regular on its face. Kelsey v. Klabunde, 54 Neb. 760, 74 N.W. 1099 (1898).
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
1. Felony
2. Misdemeanor
3. Probable cause
4. Miscellaneous
1. Felony
When a law enforcement officer has knowledge based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect has committed a felony, the officer has probable cause to arrest without a warrant. State v. Robinson, 233 Neb. 729, 448 N.W.2d 386 (1989).
A peace officer may arrest without a warrant if the officer has reasonable cause to believe that the person to be arrested has committed a felony. State v. Horn, 218 Neb. 524, 357 N.W.2d 437 (1984); State v. George, 210 Neb. 786, 317 N.W.2d 76 (1982); State v. Russ, 193 Neb. 308, 226 N.W.2d 775 (1975); State v. Irwin, 191 Neb. 169, 214 N.W.2d 595 (1974); State v. Beasley, 183 Neb. 681, 163 N.W.2d 783 (1969).
2. Misdemeanor
There is probable cause for a warrantless arrest under subsection (2)(c) of this section when an officer has reasonable cause to believe that a misdemeanor has been committed and there is reasonable cause to believe that the evidence may be destroyed or concealed. There is reasonable cause to believe that evidence of intoxication may be destroyed by the metabolic processes of the human body. State v. Halligan, 222 Neb. 866, 387 N.W.2d 698 (1986).
This section authorizes any peace officer to arrest a person who commits a misdemeanor in his presence. State v. Chambers, 207 Neb. 611, 299 N.W.2d 780 (1980).
Police may use binoculars in surveillance, and may arrest without a warrant if there is reasonable cause to believe person has committed misdemeanor in their presence, or has committed misdemeanor, and officers have reasonable cause to believe evidence may be destroyed or concealed. State v. Thompson, 196 Neb. 55, 241 N.W.2d 511 (1976).
Peace officer may arrest without a warrant if he has reasonable cause to believe the person has committed a misdemeanor, that he will not be apprehended or may cause injury to others unless immediately arrested, or may destroy or conceal evidence of the commission of the misdemeanor. State v. McCune, 189 Neb. 165, 201 N.W.2d 852 (1972).
A law enforcement officer may make a lawful arrest without a warrant if there exists a reasonable or probable cause that a person has committed a misdemeanor in the officer's presence. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
3. Probable cause
The test for probable cause for a warrantless arrest is whether at the moment the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981).
Where defendant's erratic driving and subsequent conduct is sufficient to give police probable cause to believe defendant was under the influence of drugs or liquor, it is permissible for the police to pursue defendant into a private dwelling. State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978).
Probable cause for arrest and for search and seizure exists where the facts and circumstances within the officers' knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. State v. Dussault, 193 Neb. 122, 225 N.W.2d 558 (1975).
Probable cause for arrest is to be determined upon objective facts available at time of arrest but there is no requirement that before arrest officer must conduct trial. Morrison v. United States, 491 F.2d 344 (8th Cir. 1974).
Arresting officer not being present at time offense committed and under facts outlined without probable cause for warrantless arrest, evidence seized on search incident to arrest was inadmissible. Turk v. United States, 429 F.2d 1327 (8th Cir. 1970).
4. Miscellaneous
Although the diminishment over time and the ultimate elimination of alcohol in the bloodstream are not willful or intentional, this metabolic process nonetheless constitutes the destruction of evidence such as to provide a basis for effecting a warrantless arrest under the provisions of this section. State v. Wegener, 239 Neb. 946, 479 N.W.2d 783 (1992).
The destruction of evidence through the dissipation of an individual's blood-alcohol level over time is sufficient justification for a warrantless arrest. State v. Marcotte, 233 Neb. 533, 446 N.W.2d 228 (1989).
A warrantless arrest, set in motion on a public road, may not be defeated by means of escaping to a private driveway. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).
Officer's conduct in making an arrest under the apparent authority of sections 29-404.02 and 29-411 did not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of the defendant's statements. State v. Smith, 209 Neb. 505, 308 N.W.2d 820 (1981).
Warrantless arrest was lawful after officer discovered small bag of marijuana in "plain view" in back seat of car driven by defendant, thereby permitting a search of the car's trunk as a search incident to a lawful arrest. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).
A warrantless arrest in the hallway outside the apartment of the person arrested, which took place as the person arrested was returning to his apartment, does not violate this section. State v. Tipton, 206 Neb. 731, 294 N.W.2d 869 (1980).
Absent exigent circumstances police may not arrest a person in his home without a warrant. State v. Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980).
Absent a contrary showing, an arrest made by Nebraska authorities in a neighboring jurisdiction is presumed governed by laws the same as laws in Nebraska. State v. Wilson, 199 Neb. 765, 261 N.W.2d 376 (1978).
Exigent circumstances in this case justified entry into house to make arrest without a prior disclosure of authority or purpose. State v. Brooks, 189 Neb. 592, 204 N.W.2d 86 (1973).
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
Police may consider an anonymous tip, along with other facts and circumstances, in determining whether reasonable cause for an arrest exists. Where anonymous tip identified robber as a black male, 6 feet 1 inch tall, 28 years old, with a red eye, known as "Tony," who could be found at a certain address; eyewitnesses identified robber as black male with a red eye; neighbors of specified address described defendant's car; and defendant was a black male, 6 feet 3 inches tall, 29 years old, found at an address where the described car was parked, and named Tony, reasonable cause for arrest existed. State v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991).
The totality of the circumstances, including a suspect's attempt to flee from a police officer, established reasonable or probable cause that the suspect was driving while his driver's license was still under suspension, which was a misdemeanor; thus, the officer had probable cause to arrest the suspect. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
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
Constable cannot demand his fees in advance. Beach v. State ex rel. Emmons, 27 Neb. 398, 43 N.W. 177 (1889).
This section does not apply to complaint by prosecuting officer. State ex rel. Thomas v. McCutcheon, 20 Neb. 304, 30 N.W. 58 (1886).
Costs can be adjudged against complainant only after finding that complaint was without probable cause. Cobbey v. Berger, 13 Neb. 463, 14 N.W. 396 (1882).
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
If defendant is in court when complaint is filed, warrant need not issue. Cohoe v. State, 79 Neb. 811, 113 N.W. 532 (1907).
Validity of warrant will not be inquired into by district court when accused has waived preliminary and given bond. Bartley v. State, 53 Neb. 310, 73 N.W. 744 (1898).
Police officer is commanded to take an accused under arrest before a magistrate. Gallegos v. Nebraska, 342 U.S. 55 (1951).
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
Warrant for arrest may be executed within any county in the state. State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966).
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
The Fourth Amendment to the U.S. Constitution requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
Jury was properly instructed as to duties of sheriff to arrest and detain under this section. O'Dell v. Goodsell, 152 Neb. 290, 41 N.W.2d 123 (1950).
In action against sheriff for false imprisonment on theory that plaintiff was detained without warrant, evidence was sufficient to establish that plaintiff's arrest and detention were lawful. Martin v. Sanford, 129 Neb. 212, 261 N.W. 136 (1935).
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
Given the facts viewed most favorably to the plaintiff, the defendant officer's statement identifying himself as a sheriff's deputy was insufficient to announce his office and purpose: The officer was dressed in jeans, a sweatshirt, and a ball cap, did not show his badge, displayed a weapon upon entry into the home, and failed to produce a copy of the warrant before or after his forced entry into the home. Waldron v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016).
Following a knock and announcement, the requirement that officers executing a search warrant be "refused admittance," within the meaning of this section, is not restricted to an affirmative refusal, but encompasses circumstances that constitute constructive or reasonably inferred refusal. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).
This section codifies the common-law requirement of knocking and announcing when serving a search warrant prior to breaking into a person's dwelling. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).
Provisions in warrants allowing no-knock search warrants offend neither U.S. Const. amend. IV nor Neb. Const. art. I, sec. 7. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990).
The provision allowing for no-knock search warrants does not offend the fourth amendment to the Constitution of the United States. State v. Meyer, 209 Neb. 757, 311 N.W.2d 520 (1981).
Officer's conduct in making an arrest under the apparent authority of sections 29-404.02 and 29-411 did not rise to the level of conscious or flagrant misconduct requiring prophylactic exclusion of the defendant's statements. State v. Smith, 209 Neb. 505, 308 N.W.2d 820 (1981).
Where defendant's erratic driving and subsequent conduct is sufficient to give police probable cause to believe defendant was under the influence of drugs or liquor, it is permissible for the police to pursue defendant into a private dwelling. State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978).
The exercise of the right hereunder to break into a building is subject to the condition that the officer has probable cause to believe the person sought is within the building. State v. Russ, 193 Neb. 308, 226 N.W.2d 775 (1975).
Where a peace officer has reasonable cause to believe a sale of narcotics is taking place inside a residence, exigent circumstances may justify his entering the residence to make arrest without prior disclosure of his authority and purpose. State v. Brooks, 189 Neb. 592, 204 N.W.2d 86 (1973).
The Fourth Amendment to the United States Constitution prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest except where there are exigent circumstances present. This section noted by the court as being similar to the New York law it found unconstitutional. Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980).
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
This section does not authorize payment of reward until conviction. Anderson v. Pierce County, 40 Neb. 481, 58 N.W. 955 (1894).
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
The Nebraska Uniform Act on Fresh Pursuit applies only to officers from another state entering this state; it does not apply to a police officer of a city of the second class seeking to arrest a misdemeanor suspect outside the officer's geographical jurisdiction. State v. Tingle, 239 Neb. 558, 477 N.W.2d 544 (1991).
Fresh pursuit is pursuit instituted immediately and with intent to reclaim or recapture. State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962).
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
This section outlines procedure to be followed after arrest made in fresh pursuit. State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962).
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.
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.
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.
Annotations
In order for search to be valid in connection with fresh pursuit, felony must have been committed in another state. State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962).
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.
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.
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
Traffic infraction, citation, see section 60-684.
Annotations
A police chief's failure to forward, in accordance with this section, to the county attorney a citation charging a city employee with a crime in order to prevent the city employee's employment from being terminated was obstructing government operations as set forth in section 28-901(1). The police chief obstructed or impaired a governmental function by failing to forward the citation to the county attorney, as required by this section, because the action of failing to forward the citation impaired the county attorney's performance of its prosecutorial functions. The police chief did not have discretion to remove the citation of the city employee from the packet of citations to be sent to the county attorney such to conclude that he did not breach this section. State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).
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.
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.
Cross References
Traffic infraction, refusal to sign citation, see section 60-684.
Annotations
One-year probation as sentence for violating this section affirmed. State v. Meints, 223 Neb. 199, 388 N.W.2d 813 (1986).
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.
Annotations
An officer may arrest for an infraction if such action is necessary to carry out a legitimate investigative function. State v. Sassen, 240 Neb. 773, 484 N.W.2d 469 (1992).
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 such action is necessary in order to carry out legitimate investigative functions. State v. Petersen, 12 Neb. App. 445, 676 N.W.2d 65 (2004).
Except as provided in this section, for any offense classified as an infraction, a citation shall be issued in lieu of arrest or continued custody. State v. Petersen, 12 Neb. App. 445, 676 N.W.2d 65 (2004).
A trooper who did not have grounds to arrest a suspect could not detain the suspect under this section. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000).
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.
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.
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.
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.
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.
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.
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.
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.
Annotations
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. State v. Petersen, 12 Neb. App. 445, 676 N.W.2d 65 (2004).
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.
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.
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.
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.
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.
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
Pursuant to this section, the accused must be brought before a magistrate as soon as is practical under the existing circumstances. State v. Thomas, 236 Neb. 84, 459 N.W.2d 204 (1990).
A speedy preliminary hearing is a personal right which may be waived. State v. Gau, 182 Neb. 114, 153 N.W.2d 298 (1967); Reinoehl v. State, 62 Neb. 619, 87 N.W. 355 (1901); Latimer v. State, 55 Neb. 609, 76 N.W. 207 (1898).
A defendant charged with a felony must be given a preliminary hearing as soon as the nature and circumstances of the case will permit. State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211 (1963).
Person charged with felony should be given preliminary hearing as soon as possible. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944).
Complaining witness is not party to action; magistrate is not disqualified by being relative of complaining witness. Ingraham v. State, 82 Neb. 553, 118 N.W. 320 (1908).
Preliminary examination is necessary, in prosecution by information, before defendant can be put on trial, over objections, unless waived. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing, 68 Neb. 181, 104 N.W. 154 (1905).
Charging two offenses in same count does not render proceedings invalid. Sothman v. State, 66 Neb. 302, 92 N.W. 303 (1902).
Plea in abatement is proper method of raising question whether or not preliminary examination was had. Everson v. State, 4 Neb. Unof. 109, 93 N.W. 394 (1903).
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
Magistrates hearing preliminary examinations are invested with discretion to sequester the witnesses. Chicago, B. & Q. R. R. Co. v. Kellogg, 54 Neb. 138, 74 N.W. 403 (1898).
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.
Annotations
1. Preliminary hearing
2. Bail
3. Miscellaneous
1. Preliminary hearing
So long as the charge in an amended information is substantially the same as that in the original information, the original preliminary hearing remains effective as to the amended information. State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).
Hereafter the sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceeding in the district court. Kruger v. Brainard, 183 Neb. 455, 161 N.W.2d 520 (1968).
A preliminary hearing before a magistrate is not a criminal prosecution or trial. Delay v. Brainard, 182 Neb. 509, 156 N.W.2d 14 (1968).
A preliminary hearing is a procedural safeguard to prevent persons from being detained in custody without probable cause. State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428 (1965).
Preliminary hearing is in no sense a trial of the person accused in regard to his guilt or innocence. Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240 (1958).
A finding in a preliminary hearing that there was a possibility that defendant committed the crime charged was not subject to attack by habeas corpus. Cotner v. Solomon, 163 Neb. 619, 80 N.W.2d 587 (1957).
Functional purpose of preliminary hearing is stated. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
The holding of an accused person for trial in district court at the conclusion of a preliminary examination gives the court jurisdiction, which is retained until the accused is discharged by due course of law. Dobrusky v. State, 140 Neb. 360, 299 N.W. 360 (1941).
Evidence on preliminary hearing was sufficient to show probable cause. Harmer v. State, 121 Neb. 731, 238 N.W. 356 (1931).
Objection that a preliminary hearing in the form and substance contemplated by the statute had not been held was properly raised by a plea in abatement. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903).
An examination under statute is not a trial or a bar to another examination before another magistrate. In re Garst, 10 Neb. 78, 4 N.W. 511 (1880).
Only purpose of preliminary hearing is to determine whether a crime has been committed, and whether there is probable cause for holding accused to answer. Sigler v. Bird, 354 F.2d 694 (8th Cir. 1966).
At preliminary hearing, magistrate is not authorized to require a defendant to plead guilty or not guilty. Bird v. Sigler, 241 F.Supp. 1007 (D. Neb. 1964).
A preliminary hearing in Nebraska is in no sense a trial of the person accused. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
2. Bail
Bail bond on recognizance should be construed with reasonable strictness. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).
Fact that bail for appearance of defendant in district court required him to appear on first day of first term instead of "forthwith," was not prejudicial error. Paige v. State, 120 Neb. 732, 235 N.W. 91 (1931).
Persons bound or held over to district court at next term on criminal charges should be bound or held over to appear at "the first day of the next jury term" of such court. Harrison v. Cheney, 105 Neb. 821, 182 N.W. 367 (1921).
Surety was liable in suit for forfeiture of bail bond where defendant was charged with violation of National Prohibition Act, and bond was adjudged forfeited before act was repealed. La Grotta v. United States, 77 F.2d 673 (8th Cir. 1935).
Recognizance was construed as requiring appearance forthwith at term then in session. United States v. Mace, 281 F. 635 (8th Cir. 1922).
3. Miscellaneous
A county judge sitting as an examining magistrate has no jurisdiction to dismiss a felony complaint with prejudice. State v. Wilkinson, 219 Neb. 685, 365 N.W.2d 478 (1985).
Sufficiency of evidence to bind accused over may be tested in habeas corpus proceeding. Neudeck v. Buettow, 166 Neb. 649, 90 N.W.2d 254 (1958).
Court has no authority to appoint special bailiff to have custody of witness. Shaw v. Holt County, 88 Neb. 348, 129 N.W. 552 (1911).
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
One who is retained in custody as a material witness pursuant to the provisions of this section is not actually employed in attendance on the court during all the time that the individual is in custody. Cochran v. County of Lincoln, 203 Neb. 818, 280 N.W.2d 897 (1979).
Does not limit amount of security magistrate may require, but does limit amount a married woman or minor may pay toward own release. Application of Cochran, 434 F.Supp. 1207 (D. Neb. 1977).
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.
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.
Cross References
Mileage, how computed, see section 81-1176.
Witnesses, compensation of, see section 33-139.
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
Jurisdiction of district court over accused, held for trial by examining magistrate, is not terminated by order quashing information. Dobrusky v. State, 140 Neb. 360, 299 N.W. 539 (1941).
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.
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.
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
Entry upon trial for misdemeanor will not bar subsequent prosecution for felony. Larson v. State, 93 Neb. 242, 140 N.W. 176 (1913).
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
Alleged violations of Uniform Criminal Extradition Act did not exempt offender from trial and punishment by state. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).
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
A misstatement as to a petitioner's status as a fugitive in the extradition documents did not afford petitioner his right under the Uniform Criminal Extradition Act to have the question of whether he should be extradited from the asylum state properly determined by the governor of that state and, therefore, requires that he be dismissed from custody. Koenig v. Poskochil, 238 Neb. 118, 469 N.W.2d 523 (1991).
Allegation of delayed trial by the demanding state held invalid reason for refusing extradition. Wise v. State, 197 Neb. 831, 251 N.W.2d 373 (1977).
Where one is arrested on demand for extradition, he is not entitled to discharge when demanding state fails to assume custody within thirty days when delay is due to proceedings instituted by him. Prettyman v. Karnopp, 192 Neb. 451, 222 N.W.2d 362 (1974).
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
A demand for extradition is sufficient if it includes a copy of a judgment of conviction or sentence, together with a statement by the executive authority of the demanding state that the person claimed has broken the terms of parole. Singleton and Anthony v. Adams, 207 Neb. 293, 298 N.W.2d 369 (1980).
Where extradition with accompanying papers referred to annexed and authenticated therein together meet requirements of this section, that is sufficient. Austin v. Brumbaugh, 186 Neb. 815, 186 N.W.2d 723 (1971).
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
A misstatement as to a petitioner's status as a fugitive in the extradition documents did not afford petitioner his right under the Uniform Criminal Extradition Act to have the question of whether he should be extradited from the asylum state properly determined by the governor of that state and, therefore, requires that he be dismissed from custody. Koenig v. Poskochil, 238 Neb. 118, 469 N.W.2d 523 (1991).
One who commits an act in one state intentionally resulting in a crime in another state may now be extradited. State of Kansas v. Holeb, 188 Neb. 319, 196 N.W.2d 387 (1972).
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
Habeas corpus, see Article I, section 8, Constitution of Nebraska, and section 29-2801 et seq.
Annotations
Habeas corpus is not the proper action to challenge the validity of a detainer based upon an untried complaint, where the state filing the detainer has not requested transfer of the prisoner. Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989).
Once the governor of an asylum state has granted extradition, a court of that state, considering release on habeas corpus, can do no more than decide (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for extradition, and (4) whether the petitioner is a fugitive. Radant v. Vargason, 220 Neb. 116, 368 N.W.2d 483 (1985).
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.
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
Breaking the terms of bail, probation, or parole is a basis for extradition under this section. State ex rel. Borrink v. State, 10 Neb. App. 293, 634 N.W.2d 18 (2001).
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
The illegality of a prisoner's custody prior to the issuance of a rendition warrant from a sister state does not render the warrant void and unenforceable. Bell v. Janing, 188 Neb. 690, 199 N.W.2d 24 (1972).
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
The illegality of a prisoner's custody prior to the issuance of a rendition warrant from a sister state does not render the warrant void and unenforceable. Bell v. Janing, 188 Neb. 690, 199 N.W.2d 24 (1972).
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.
Annotations
This section fixes the expenses of extradition to be taxed as costs as the mileage at the applicable statutory rate necessarily incurred in traveling to return the prisoner to Nebraska. State v. Smith, 13 Neb. App. 477, 695 N.W.2d 440 (2005).
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
The foregoing statute has long been the rule in this state. State v. Dodd, 175 Neb. 533, 122 N.W.2d 518 (1963).
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
1. Detainer
2. Speedy trial
3. Sending and receiving states
4. Miscellaneous
1. Detainer
A detainer for a prisoner who has been convicted but not sentenced does not relate to an "untried indictment, information or complaint" and thus does not trigger the procedural requirements of Article III of the interstate Agreement on Detainers. State v. Jimenez, 283 Neb. 95, 808 N.W.2d 352 (2012).
For purposes of the Agreement on Detainers, a "detainer" is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he is wanted to face criminal charges pending in another jurisdiction. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
A detainer is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he or she is wanted to face criminal charges pending in another jurisdiction. More specifically, a detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency after his or her release or to notify the agency when release of the prisoner is imminent. A state writ of habeas corpus ad prosequendum, seeking the immediate delivery of a prisoner for trial on criminal charges, does not constitute a detainer. Mere notice of pending criminal charges is insufficient to invoke the provisions of the Agreement on Detainers. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997).
Under the Agreement on Detainers, a detainer is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he is wanted to face criminal charges pending in another jurisdiction. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
2. Speedy trial
A court may not apply Nebraska's 6-month speedy trial statute under section 29-1207 to determine whether a prisoner is timely brought to trial under article III(a) of the Agreement on Detainers. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The Agreement on Detainers has separate speedy trial provisions depending upon whether its procedures are initiated by the prisoner or authorities in the jurisdiction where the charge is pending. Article III of the agreement prescribes the procedure by which a prisoner against whom a detainer has been lodged may demand a speedy disposition of outstanding charges. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The 180-day trial limitation under article III(a) of the Agreement on Detainers begins to run on the day the prisoner's request for disposition of untried charges is received by the prosecutor and court of jurisdiction. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
Upon receipt of a prisoner's proper request for disposition of untried charges under article III of the Agreement on Detainers, authorities in the state where a charge is pending must bring the prisoner to trial within 180 days. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
When seeking a discharge on speedy trial grounds under article III(a) of the Agreement on Detainers, defense counsel's performance is deficient when he or she fails to present evidence showing the time limitation for trial under article III(a) has been triggered. The prisoner was prejudiced by counsel's failure when there was a reasonable probability that an appeal or petition for further review from the district court's denial of prisoner's motion to discharge would have resulted in a reversal had the evidence been submitted. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The Agreement on Detainers controls a defendant's speedy trial rights when he or she is already incarcerated in another state or in a federal facility before an information is filed against the defendant in Nebraska. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).
Article III of the Agreement on Detainers prescribes the procedure by which a prisoner against whom a detainer has been lodged may demand a speedy disposition of outstanding charges. Upon receipt of a proper request for disposition under this article, the receiving state must bring the prisoner to trial within one hundred eighty days. Also, under this article, for a prisoner's demand for disposition of the charges to trigger the one hundred eighty day period, it must be made in the manner required by Article III. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
A ruling on a motion to discharge, based on the speedy trial provisions of the Agreement on Detainers, is a final, appealable order. State v. Rieger, 8 Neb. App. 20, 588 N.W.2d 206 (1999).
Under Article III of the Agreement on Detainers, for a prisoner's demand for disposition to trigger the 180-day period, it must be made in the manner therein required. State v. Nearhood, 2 Neb. App. 915, 518 N.W.2d 165 (1994).
3. Sending and receiving states
A prisoner is not returned to his original place of imprisonment when he is returned to the sending state simply to face pending charges. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003).
If one jurisdiction is actively prosecuting a defendant on current and pending charges, the defendant is unable to stand trial in the state in which he requested final disposition until resolution of the pending charges in the sending state. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003).
A ruling denying a motion to dismiss with prejudice for failure to bring an individual to trial within 120 days from the date of his or her arrival in the receiving state is a final, appealable order. The speedy trial provisions of the Agreement on Detainers are triggered only when a detainer is filed with the state where an individual is a prisoner by the state having untried charges pending against the individual. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997).
Article IV of the Agreement on Detainers sets forth the procedures by which the authorities where the charges are pending may initiate the process whereby a prisoner is returned to the state for trial. In respect of any proceedings made possible under this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
Article V(d) of this section permits the receiving state to prosecute a defendant not only for the charge or charges forming the basis of the detainer but also on all other charges arising out of the same transaction. State v. Steele, 7 Neb. App. 110, 578 N.W.2d 508 (1998).
The right of a prisoner under Article IV(c) of the Agreement on Detainers to be tried within 120 days of being brought into the state is a statutory right and not a constitutional right. A prisoner may waive this right by not raising the issue prior to or during trial. State v. Harper, 2 Neb. App. 220, 508 N.W.2d 584 (1993).
4. Miscellaneous
If an action for untried charges is not brought to trial within the time periods authorized by articles III and IV of the Agreement on Detainers, the action shall be dismissed with prejudice under article V(c) of the agreement. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
In a ruling on a motion to dismiss with prejudice based on alleged violations of the Agreement on Detainers, a trial court's pretrial factual findings regarding the application of provisions of the agreement will not be disturbed on appeal unless clearly wrong. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
To avoid prolonged interference with rehabilitation programs, the Agreement on Detainers provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The Interstate Agreement on Detainers applies solely to persons who have entered upon a term of imprisonment and therefore does not include pretrial detainees. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003).
The provisions of the Agreement on Detainers apply only when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party state. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).
In ruling on a motion to dismiss with prejudice based on alleged violations of the Agreement on Detainers, it is proper for the trial court to hold a pretrial evidentiary hearing to determine whether a detainer was filed against the defendant and, if a detainer was filed, to determine whether the provisions of the agreement were violated. The Agreement on Detainers provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences, in order to avoid prolonged interference with rehabilitation programs. Because the Agreement on Detainers is a congressionally sanctioned interstate compact, it is a federal law subject to federal construction and, thus, U.S. Supreme Court interpretations of the Agreement on Detainers are binding upon state courts. Articles IV and V of the Agreement on Detainers provide the procedures by which the authorities in the state where the charges are pending, the receiving state, may initiate the process whereby a prisoner is transferred to the receiving state for trial on the pending charges. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997).
Habeas corpus is not the proper action to challenge the validity of a detainer based upon an untried complaint, where the state filing the detainer has not requested transfer of the prisoner. Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989).
Article V(c) of the Agreement on Detainers provides for dismissal of a pending complaint on which a detainer is based if the appropriate authority shall refuse or fail to accept custody of the prisoner against whom the charges are pending or fail to bring that prisoner to trial within the period provided in Article III or Article IV. The Agreement also provides the remedy of dismissal of charges with prejudice in those specific cases not including possible errors made by another party's prison officials. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
The Agreement on Detainers was designed to promote the expeditious and orderly disposition of outstanding charges against a prisoner and to determine the proper status of any and all detainers based on untried indictments, informations, or complaints. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
The provisions of the Agreement on Detainers apply only when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party state. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984).
The phrase "unable to stand trial" included in article VI(a) of this section includes those periods of delay occasioned by the defendant. Failure to appear at a preliminary hearing due to re-incarceration is clearly an example of a delay occasioned by the defendant. State v. Meyer, 7 Neb. App. 963, 588 N.W.2d 200 (1998).
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
Nebraska Liquor Control Act, issuance under, see section 53-1,108 et seq.
Annotations
Failure of magistrate to collect fee for issuing search warrant does not invalidate it. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).
On a hearing on a motion to suppress evidence, it is within the discretion of the trial court to permit withdrawal of rest and the taking of further evidence. State v. Putnam, 178 Neb. 445, 133 N.W.2d 605 (1965).
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.
Annotations
An arrest may not be used as a pretext to search for evidence. A pretext arrest is one where the arrest is only a sham, a front being used as an excuse for making a search. The determination of whether an arrest is pretextual is a question of fact for the trial court. This court will not reverse a trial court's finding on this question unless the finding is clearly erroneous. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).
A warrant to search a house also covers the land around the house and associated outbuildings used by the inhabitants of the house. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).
Items not listed on a search warrant but in plain view of officers searching an area described in the warrant for items listed on the warrant may be seized. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).
The eyewitness report of a citizen informant may be self-corroborating; the fact that a citizen voluntarily came forward with information is itself an indicium of reliability. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).
The fact that defendant's arrest may have been illegal does not render inadmissible evidence seized pursuant to a valid search warrant received by police shortly after they entered the defendant's apartment. State v. Smith, 207 Neb. 263, 298 N.W.2d 162 (1980).
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.
Annotations
It is well established that affidavits for search warrants must be tested and interpreted in a common-sense and realistic fashion. Where the circumstances are detailed and reasons for crediting a source of information are given resulting in a finding of probable cause by the magistrate, the court should not invalidate the warrant by interpreting the affidavit in a hyper-technical manner and should find it sufficient if it will support the issuance of a warrant after the deletion of any inaccurate statements. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).
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
Where the judge incorporated an officer's oral statement into the officer's affidavit by interlineation, there was no need to comply with this section. State v. Nelson, 6 Neb. App. 519, 574 N.W.2d 770 (1998).
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.
Annotations
An affidavit in support of a search warrant need not contain a separate statement of facts showing why the public interest requires that the warrant be served at night, in order for the nighttime search to be valid. If the affidavit, read in a commonsense manner and as a whole, reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service of a search warrant, provision for such service in the warrant is proper. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
A factual basis that shows the reviewing judicial officer that the public interest requires a nighttime search is a prerequisite to the issuance of a warrant authorizing a nighttime search under this section. State v. Fitch, 255 Neb. 108, 582 N.W.2d 342 (1998).
Where the use of the catchall phrase "John and/or Jane Doe" is not based on probable cause that all persons to whom the phrase might be applied will be engaged in illegal activity, the warrant does not satisfy the requirements of this section. State v. Pecha, 225 Neb. 673, 407 N.W.2d 760 (1987).
In order to authorize the issuance of a search warrant for service during the nighttime, the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of such nighttime service. An affidavit in support of the issuance of a search warrant which alleges facts which would lead a reasonable person to believe that a delay in service of the warrant would permit the possible destruction of contraband may be sufficient to authorize immediate nighttime service. State v. Paul, 225 Neb. 432, 405 N.W.2d 608 (1987).
The showing of probable cause necessary to support a search warrant requires only the probability, and not a prima facie showing, of criminal activity, and probable cause is to be evaluated by the collective information of the police as reflected in the affidavit, and is not limited to the firsthand knowledge of the officer who executes the affidavit. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).
In order to authorize the issuance of a search warrant for service during the nighttime under this section, the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service. State v. Moore, 2 Neb. App. 206, 508 N.W.2d 305 (1993).
The receipt of information concerning defendant's drug involvement at 6:45 p.m. from informant under arrest and with access to phones satisfied public interest requirement justifying nighttime execution of search warrant. State v. Flemming, 1 Neb. App. 12, 487 N.W.2d 564 (1992).
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.
Cross References
Fees for service, see section 33-117.
Annotations
Where there was no clear showing of prejudice, an officer's failure to return a search warrant within the time limit provided by this section was purely a ministerial defect and did not render the warrant invalid. State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
Irrespective of compliance with a rule or statutory time limit within which a search must be executed, a delay in the execution of a warrant may be constitutionally impermissible under the Fourth Amendment. State v. Swift, 251 Neb. 204, 556 N.W.2d 243 (1996).
Failure to provide a copy of a search warrant was a purely ministerial defect that did not invalidate the warrant absent a clear showing of prejudice. State v. Svendgard, 31 Neb. App. 596, 986 N.W.2d 88 (2023).
The execution of the warrant 6 days after its issuance does not require suppression of evidence obtained based on the warrant. State v. Moore, 2 Neb. App. 206, 508 N.W.2d 305 (1993).
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
Failure to comply strictly with post service statutory proceedings will not invalidate search under valid warrant in absence of clear showing of prejudice. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).
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.
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.
Cross References
Seizure of vehicle and component parts, see section 60-2608.
Annotations
1. Jurisdiction
2. Miscellaneous
1. Jurisdiction
The district court, as the court in which the criminal charge was filed, has exclusive jurisdiction to determine the rights to seized property and the property's disposition. State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
The court in which a criminal charge was filed has exclusive jurisdiction to determine the rights to seized property and the property's disposition. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
Under this section, the court, where the criminal charge has been filed and where seized property was or may be used as evidence, has exclusive jurisdiction to dispose of the property and to determine rights therein, including questions respecting the title, possession, control, and disposition thereof. State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).
A car was property seized for the purpose of enforcing criminal laws in the plaintiff's ongoing criminal case; therefore, the car had been and remained to be in the custody of the court in the criminal case. As such, the district court in the plaintiff's separate criminal case continued to have exclusive jurisdiction to determine the rights to the car and the car's disposition. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
A harmonious reading of this section and section 29-819 is that references to jurisdiction in each are to jurisdiction over seized property, not subject matter jurisdiction. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
Where invoked, the grant of "exclusive jurisdiction" under this section gives a criminal trial court exclusive jurisdiction over only two issues: the disposition of seized property and the determination of rights in seized property. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
2. Miscellaneous
The denial of a motion for the return of a seized firearm was improper where the State failed to meet its burden to show the firearm was used by the claimant in an unlawful manner as an instrumentality of a crime. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
This section applies to a motion for the return of seized property where the firearm was seized incident to arrest for discharging a firearm within the city limits, a complaint was later filed charging refusal to obey a lawful order stemming from the incident, and the person pled guilty to this charge. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
The presumptive right to possession of seized property may be overcome when superior title in another is shown by a preponderance of the evidence. State v. Ebert, 303 Neb. 394, 929 N.W.2d 478 (2019).
Postconviction proceedings are the equivalent of a "trial" for purposes of this section. State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).
Property seized and held as evidence is to be safely kept by the officer seizing it unless otherwise directed by the court, and the officer is to exercise reasonable care and diligence for the safekeeping of the property. The property shall be kept so long as necessary for the purpose of being produced as evidence at trial. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
A police officer's failure to "safely" keep a seized vehicle can give rise to liability under the Political Subdivisions Tort Claims Act. Section 29-818 requires a police officer to exercise reasonable care and diligence for the safekeeping of property within his custody. Nash v. City of North Platte, 205 Neb. 480, 288 N.W.2d 51 (1980).
This section mandates that the seized property is to be kept so long as necessary to make it available as evidence in "any trial." Postconviction proceedings are the equivalent of a "trial" for purposes of this section. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
The trial court's decision on the return of seized property is reviewed for an abuse of discretion. State v. Maestas, 11 Neb. App. 262, 647 N.W.2d 122 (2002).
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
A harmonious reading of this section and section 29-818 is that references to jurisdiction in each are to jurisdiction over seized property, not subject matter jurisdiction. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
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.
Cross References
Commercial Dog and Cat Operator Inspection Act, see section 54-625.
Annotations
Traditional, or per se, contraband is defined as "objects the possession of which, without more, constitutes a crime." A claimant has no right to have per se contraband returned to him or her. Derivative contraband are articles which are not inherently illegal, but are used in an unlawful manner. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
This section applies only where the exclusive jurisdiction of a court under section 29-818 has not been invoked. State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
When criminal proceedings have terminated, the person from whom property was seized is presumed to have a right to its return, and the burden is on the government to show that it has a legitimate reason to retain the property. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
Illegal gambling devices forfeited to the State constitute contraband, which this section requires the State to destroy. State v. Dodge City, 238 Neb. 439, 470 N.W.2d 795 (1991).
Under this section, law enforcement is authorized to dispose of certain property seized or held and no longer required as evidence. State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).
When reading section 29-818 and this section together, this section applies only where the exclusive jurisdiction of a court under section 29-818 has not been invoked. State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).
When criminal proceedings have terminated, the person from whom property was seized is presumed to have a right to its return, and the burden is on the government to show that it has a legitimate reason to retain the property. State v. Dubray, 24 Neb. App. 67, 883 N.W.2d 399 (2016).
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
1. Waiver
2. Procedure
1. Waiver
The intention of this section is that motions to suppress evidence are to be ruled on and finally determined before trial, unless the motion is within the exceptions contained in the statute. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
The ten-day rule of this section is valid and operable; it prevails over inconsistent, local court rules. State v. Vaughan, 227 Neb. 753, 419 N.W.2d 876 (1988).
Objection to illegally seized evidence is waived if objection is not made at least 10 days prior to trial. State v. Madsen, 226 Neb. 722, 414 N.W.2d 280 (1987).
Failure to make timely motion to suppress is a waiver of such right where evidence not a surprise. State v. Donald, 199 Neb. 70, 256 N.W.2d 107 (1977).
Error claimed because of defendant's absence was held waived for reasons stated. State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).
A waiver of objections to evidence on the ground that it was seized in an unreasonable search occurs when no objection is made at least ten days before trial and where the exceptions herein have no application. State v. Stowell, 190 Neb. 615, 211 N.W.2d 130 (1973).
Failure to move for suppression of evidence seized unlawfully waives the objection. State v. Howell, 188 Neb. 687, 199 N.W.2d 21 (1972).
2. Procedure
Absent an exception, a failure to move for the suppression of evidence seized unlawfully waives the objection. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
After a ruling granting a motion to suppress has been appealed, the single-judge opinion on the ruling is binding on the trial court and the parties as a determination of the suppression issue in a subsequent trial. However, if the defendant wishes to reopen the motion to suppress, the defendant must (1) put the State and trial court on notice of such intention by filing a new motion to suppress at least 10 days before trial or (2) make a showing that the existence of one of the exceptions provided in this section excuses the 10-day requirement. State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003).
The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. A motion to suppress, with certain exceptions, must be made in writing. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
There is no statutory requirement to file a second motion to suppress after the granting of a new trial where the new motion to suppress would be identical to the original motion. State v. Schoonmaker, 249 Neb. 330, 543 N.W.2d 194 (1996).
The validity of a search of a defendant's property depends upon whether the defendant's consent to do so was given voluntarily. State v. Graham, 241 Neb. 995, 492 N.W.2d 845 (1992).
The intention embodied in this section is that unless a motion to suppress falls within one of the statutorily specified exceptions, such a motion is to be ruled upon and finally determined before trial. State v. Giessinger, 235 Neb. 140, 454 N.W.2d 289 (1990).
It is clearly the intention of this section that motions to suppress evidence are to be ruled on and finally determined before trial, unless the motion is within the exceptions contained in the statute. State v. Harms, 233 Neb. 882, 449 N.W.2d 1 (1989).
A person against whom a search is directed and whose property is seized in a search has standing to challenge the validity of the search where the case against him depends upon the defendant's possession of the goods. State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975).
Where defendant fails to timely move to suppress hereunder, he cannot secure the results of an order of suppression by a late motion to suppress testimony or to limit interrogation of his own witnesses on relevant and material matters. State v. Bartlett, 194 Neb. 502, 233 N.W.2d 904 (1975).
Unless within exceptions herein, motions to suppress evidence should be finally determined before trial, but the trial court may correct errors at the trial. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).
An exception to the exclusionary rules of search and seizure is the rule of harmless error beyond a reasonable doubt. State v. Reed, 188 Neb. 815, 199 N.W.2d 707 (1972).
Trial court's action in permitting filing and hearing of defendant's motion to suppress evidence after time provided herein approved, but overruling of motion sustained on other grounds. State v. Huggins, 186 Neb. 704, 185 N.W.2d 849 (1971).
Section intends that motions to suppress evidence be determined before trial, but trial court be not precluded from correcting errors at trial. State v. Smith, 184 Neb. 363, 167 N.W.2d 568 (1969).
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
Henceforth, trial courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress. State v. Osborn, 250 Neb. 57, 547 N.W.2d 139 (1996).
An order not containing a provision that the authorization to intercept calls shall be conducted in such a way so as to avoid and prevent interception of confidential information is not per se invalid absent a showing that any substantial right of the defendant has been violated. State v. Brennen, 214 Neb. 734, 336 N.W.2d 79 (1983).
Applications for successive wiretaps which failed to disclose earlier applications are technical irregularities only, not affecting substantial rights of the accused. State v. Kohout, 198 Neb. 90, 251 N.W.2d 723 (1977).
Evidence should not be suppressed because of technical irregularities not affecting the substantial rights of the accused. State v. Putnam, 178 Neb. 445, 133 N.W.2d 605 (1965).
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.
Annotations
1. Motion to suppress
2. Appeal
3. Review
4. Miscellaneous
1. Motion to suppress
Motion to suppress evidence was improperly sustained. State v. Forney, 181 Neb. 757, 150 N.W.2d 915 (1967).
The trial court should not have suppressed evidence obtained by a law enforcement officer when he squeezed a backpack located in an overhead compartment on a public bus in order to smell the contents of the backpack to determine if it contained contraband. State v. Lancelotti, 8 Neb. App. 516, 595 N.W.2d 558 (1999).
2. Appeal
After a ruling granting a motion to suppress has been appealed, the single-judge opinion on the ruling is binding on the trial court and the parties as a determination of the suppression issue in a subsequent trial. However, if the defendant wishes to reopen the motion to suppress, the defendant must (1) put the State and trial court on notice of such intention by filing a new motion to suppress at least 10 days before trial or (2) make a showing that the existence of one of the exceptions provided in section 29-822 excuses the 10-day requirement. State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003).
This section authorizes an interlocutory appeal by the State from the sustaining of a motion to suppress only when the motion is sustained in district court. The State must look to section 29-827 in regard to review of the sustaining of a motion to suppress in county court. State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988).
Appeals by the state from an order suppressing evidence under section 84-705(12), R.R.S.1943, shall be made pursuant to section 29-824, R.R.S.1943. State v. Hinchion, DiBiase, Olsen, and Cullen, 207 Neb. 478, 299 N.W.2d 748 (1980).
On appeal to a single judge, under this section, the trial court's order suppressing evidence as involuntarily given, is affirmed. State v. McNitt, 207 Neb. 296, 298 N.W.2d 465 (1980).
If the state, after prevailing on motion to suppress, was again required to prove legality of search at trial, the state's right to appeal hereunder would be defeated in many cases. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).
This section provides the State with the specific right of appealing a district court's ruling granting a motion to suppress. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
The docket fee requirement contained in section 25-2729 necessarily applies to appeal brought by a prosecuting attorney pursuant to this section and sections 29-825 and 29-826, because section 25-2728 does not expressly exclude this section and sections 29-825 and 29-826 from the application of section 25-2729. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in section 25-2729, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Upon conviction after the reversal of a suppression order, a defendant may raise the suppression issue before the Nebraska Court of Appeals and, if unsuccessful, again before the Nebraska Supreme Court. State v. March, 9 Neb. App. 907, 622 N.W.2d 694 (2001).
3. Review
An application for review, as provided in section 29-824 et seq., must be filed within the time set in the trial court's order setting the time within which the application must be filed, and the time set in that order may not exceed thirty days. State v. Goreham, 227 Neb. 460, 418 N.W.2d 234 (1988).
Order suppressing evidence may be reviewed by single Judge of Supreme Court. State v. Hagen, 180 Neb. 564, 143 N.W.2d 904 (1966).
4. Miscellaneous
A ruling in a pretrial hearing that a defendant's statement is admissible is not a final order that may be appealed from by a defendant. State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987).
Prosecuting attorney means any county attorney and also any city attorney or assistant city attorney in a city of the metropolitan class when such attorney is prosecuting any violation designated as a misdemeanor or traffic infraction. Deputy city attorney for city of any other class may not properly prosecute an appeal under this statute. State v. Peterson, 219 Neb. 866, 366 N.W.2d 780 (1985).
An opinion by a single judge of the Nebraska Court of Appeals is not an opinion of "the court", and therefore a motion for rehearing is not appropriate. State v. March, 9 Neb. App. 907, 622 N.W.2d 694 (2001).
For an officer to validly seize an item, it must be immediately apparent that the item is or contains incriminatory evidence. Observation of baggies within a fanny pack located on an individual late at night, absent observation of an incriminating substance inside the baggies or other incriminating circumstances, is insufficient to justify a seizure. State v. Runge, 8 Neb. App. 715, 601 N.W.2d 554 (1999).
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.
Annotations
This section outlines the process for filing with the appellate court an application of review of an order granting a motion to suppress. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
This section specifically requires the appealing party, not the court reporter, to timely file the relevant documents with the clerk of the appellate court. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
The docket fee requirement contained in section 25-2729 necessarily applies to appeal brought by a prosecuting attorney pursuant to this section and sections 29-824 and 29-826, because section 25-2728 does not expressly exclude this section and sections 29-824 and 29-826 from the application of section 25-2729. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in section 25-2729, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
An appellate court lacks jurisdiction where the State failed to file a transcript of the relevant evidence with the appellate court when filing an application for review. State v. Ruiz-Medina, 8 Neb. App. 529, 597 N.W.2d 403 (1999).
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.
Annotations
State may appeal an order sustaining a motion to suppress evidence. State v. Hagen, 180 Neb. 564, 143 N.W.2d 904 (1966).
This section gives the district court the authority to establish time limits for the State to file a notice of intent with the clerk of the district court seeking review of an order granting a motion to suppress and to file the application with the appellate court. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
The docket fee requirement contained in section 25-2729 necessarily applies to appeal brought by a prosecuting attorney pursuant to this section and sections 29-824 and 29-825, because section 25-2728 does not expressly exclude this section and sections 29-824 and 29-825 from the application of section 25-2729. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where a county court fails to fix a time in which the State may appeal under this section, the State must file its notice of intention to seek review of the county court's order within 10 days; failure to do so deprives the district court of subject matter jurisdiction to hear the State's appeal. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in section 25-2729, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
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
1. Detention of person
2. Search
3. Miscellaneous
1. Detention of person
Totality of circumstances provided sufficient justification for investigatory stop where defendant fit "profile" of burglary suspect and engaged in specific activities which aroused the suspicions of the police. State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
For a detention pursuant to this section to be lawful and justifiable, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. State v. Bridge, 234 Neb. 781, 452 N.W.2d 542 (1990).
A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. State v. DeJesus, 216 Neb. 907, 347 N.W.2d 111 (1984).
An investigative stop under this provision is justified by objective manifestation that the person is, has been, or is about to be engaged in criminal activity. To determine if the cause is sufficient to authorize a stop, the totality of the circumstances must be considered. State v. Ebberson, 209 Neb. 41, 305 N.W.2d 904 (1981).
Informal detention for investigation may be lawful although probable cause for formal arrest may not exist. State v. Von Suggs, 196 Neb. 757, 246 N.W.2d 206 (1976).
A peace officer may stop any person, whom he suspects, in a public place, and demand his name, address, and an explanation of his actions. State v. Brewer, 190 Neb. 667, 212 N.W.2d 90 (1973).
Peace officer may stop person in public place whom he reasonably suspects of committing, having committed, or is about to commit a crime and may demand his name, address, and an explanation of his actions. State v. McCune, 189 Neb. 165, 201 N.W.2d 852 (1972).
Detention and search without a warrant based on statements of informer and observations of the officers was proper. State v. Goings, 184 Neb. 81, 165 N.W.2d 366 (1969).
Peace officer may stop a person for questioning whom he reasonably suspects of having committed or is about to commit a crime. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (1967).
Informal detention is permissible in spite of lack of probable cause. State v. Hoffman, 181 Neb. 356, 148 N.W.2d 321 (1967).
2. Search
Where four officers were required to subdue defendant who ran from investigatory stop which was justified by reasonable articulable suspicion, it was also reasonable to pat defendant down for a weapon. State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).
During an investigatory stop, officers may search a suspect's vehicle in order to secure their safety or the safety of another if they have reasonable belief, based on articulable facts, that they or other persons are in danger. State v. Gross, 225 Neb. 798, 408 N.W.2d 297 (1987).
The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief, based on specific and articulable facts, which reasonably warrants the officer to believe the suspect may gain immediate control of weapons. State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983).
Investigative stop and search of auto by police held unconstitutional where officer had no reasonable suspicion the occupants were committing, had committed, or were about to commit a crime. State v. Colgrove, 198 Neb. 319, 253 N.W.2d 20 (1977).
3. Miscellaneous
The officers' actions in parking their car behind the appellant's vehicle, approaching the appellant and a companion with guns holstered and identifying themselves as officers, and then inquiring whether either possessed a controlled substance or a large amount of cash were not tantamount to an arrest and did not require probable cause, but instead required a lesser standard, namely, that the officers possess a particularized and objective basis for suspecting the person stopped of criminal activity. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).
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
Chemigation Act, Nebraska, enforcement, see section 46-1124.
Controlled premises, inspection pursuant to Uniform Controlled Substances Act, see section 28-428.
Energy Code, Nebraska, enforcement, see section 81-1617.
Plant Protection and Plant Pest Act, enforcement, see section 2-1091.
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.
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
Appeals, suspension of sentence, see section 29-2301.
Forfeiture of recognizance, see sections 29-1105 to 29-1110.
Suspension of sentence, see section 29-2202.
24/7 Sobriety Program Act, see section 60-701.
Annotations
1. Applicability of section
2. Bonds
3. Discretion of court
4. Miscellaneous
1. Applicability of section
This section does not apply after judgment has been rendered. State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (1982).
This section does not apply to prisoner held under extradition warrant. In re Application of Campbell, 147 Neb. 382, 23 N.W.2d 698 (1946).
2. Bonds
Obligation of surety on bail bond is to have principal appear forthwith, where no date is fixed. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).
Since 1953, a cash appearance bond may be given. Koop v. City of Omaha, 173 Neb. 633, 114 N.W.2d 380 (1962).
In prosecution for violation of National Prohibition Act where bail bond had been declared forfeited before repeal of act, surety was liable. La Grotta v. United States, 77 F.2d 673 (8th Cir. 1935).
3. Discretion of court
Not error for court to remand defendant on bail to custody following jury instructions, but prior to verdict. State v. Starks, 198 Neb. 433, 253 N.W.2d 166 (1977).
Fixation of the amount of bail is a matter resting in the sound discretion of the trial court. Kennedy v. Corrigan, 169 Neb. 586, 100 N.W.2d 550 (1960).
Acceptance and approval of bail bonds is a judicial function. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954).
Order fixing amount of bail will not be reviewed on habeas corpus unless it appears that amount is unreasonably great and disproportionate to the offense charged. In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893).
4. Miscellaneous
The deposit of cash in lieu of or in support of bail under this section is for the purpose only of ensuring the defendant's appearance in court when required, and upon full compliance with any such court order and release of bail, the statutory refund must be made. State v. McKichan, 219 Neb. 560, 364 N.W.2d 47 (1985).
Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).
Record did not show that cash deposit was made. State v. Mills, 179 Neb. 853, 140 N.W.2d 826 (1966).
An appearance bond (less any applicable statutory fee) must be refunded to the defendant rather than peremptorily applied to costs where the defendant appeared as ordered and judgment had been entered against him. State v. Zamarron, 19 Neb. App. 349, 806 N.W.2d 128 (2011).
Surety was estopped to question irregularities of the proceeding. Berkowitz v. United States, 90 F.2d 881 (8th Cir. 1937).
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.
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.
Annotations
Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).
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.
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.
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.
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.
Annotations
Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).
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.
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
Section applies to giving bond for personal appearance of defendant prior to the trial and not after. State v. Swedland, 114 Neb. 280, 207 N.W. 29 (1926).
Rearrest discharges liability of sureties on recognizance. Smith v. State, 12 Neb. 309, 11 N.W. 317 (1882).
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
Section applies to giving bond for personal appearance of defendant prior to the trial and not after. State v. Swedland, 114 Neb. 280, 207 N.W. 29 (1926).
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.
Annotations
When a defendant fails to appear for a preliminary hearing on Thursday, and then is arrested on the following Monday, the evidence is sufficient to find that the defendant failed to surrender within 3 days of his or her failure to appear. State v. Hassan, 309 Neb. 644, 962 N.W.2d 210 (2021).
As used in this section, failure to appear before the court includes a convicted defendant who willfully fails to comply with a sentencing court's order to report to a court-designated officer who is legally authorized to take him into custody so that he may begin his sentence after a conditioned release or a release under recognizance. State v. Moss, 240 Neb. 21, 480 N.W.2d 198 (1992).
Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983).
A defendant who is released following imposition of sentence under a stay of execution with orders to reappear upon further order of the court has been "released from custody under a conditioned release" within the meaning of this section, and violates said provision by failing to appear when so ordered by the court. State v. Robinson, 209 Neb. 726, 311 N.W.2d 7 (1981).
A person already found guilty of a felony is still a person "charged with a felony," under the terms of this section. State v. McDaniel, 205 Neb. 53, 285 N.W.2d 841 (1979).
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.
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.
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
Counties are obligated to pay costs and expenses of prosecutions, including fees and expenses of attorneys appointed to represent indigent defendants in criminal cases, and there is no requirement that a property tax be levied therefor. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).
Transfer of prisoner sentenced to county jail governed by this section. State v. Curry, 184 Neb. 682, 171 N.W.2d 163 (1969).
Sheriff may hold person in custody for contempt of court in secure and convenient place of confinement. Rhodes v. Sigler, 172 Neb. 439, 109 N.W.2d 731 (1961).
In confining persons to jail in another county, when there is no secure jail in county, sheriff acts in official capacity, and surety on bond is liable for money received and not accounted for. Martin v. Seeley, 15 Neb. 136, 17 N.W. 346 (1883).
Where sheriff has custody of prisoners from two different counties for safekeeping, compensation is no greater than if they came from same county. James v. Lincoln County, 5 Neb. 38 (1876).
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.
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
Lack of specific date for appearance in bail bond did not operate to relieve surety from liability. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).
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
When the defendant failed to appear in court as his bond required, the liability on the bond became absolute and forfeiture was proper. State v. Hart, 198 Neb. 164, 252 N.W.2d 139 (1977).
Bail bond was properly forfeited where defendant absconded during trial of case. State v. Reed, 178 Neb. 370, 133 N.W.2d 591 (1965).
Action of district court in entering judgment in excess of penalty on bond did not deprive court of jurisdiction. State v. Morse, 171 Neb. 87, 105 N.W.2d 572 (1960).
On breach of condition of recognizance, court should declare forfeiture. State v. Konvalin, 165 Neb. 499, 86 N.W.2d 361 (1957); State v. Honey, 165 Neb. 494, 86 N.W.2d 187 (1957).
Appeal bond properly forfeited where defendant breached condition that he not violate the law. Trial court did not abuse its discretion by prescribing that the defendant not violate the law as a condition of the appeal bond. State v. Hernandez, 1 Neb. App. 830, 511 N.W.2d 535 (1993).
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
District court has authority to remit a part or all the penalty of a bail bond in its discretion, to be exercised as to what is right and equitable under circumstances of the individual case. State v. Kennedy, 193 Neb. 472, 227 N.W.2d 607 (1975).
Discretion rests in district court to remit all or any part of forfeited bail bond. State v. Reed, 178 Neb. 370, 133 N.W.2d 591 (1965).
Action under this section is to be measured in the light of the requirements of justice. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960).
Court may direct that forfeiture of recognizance be set aside. State v. Konvalin, 165 Neb. 499, 86 N.W.2d 361 (1957).
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.
Cross References
Disposition of funds of forfeited recognizance, see section 29-2708.
Annotations
Judgment of forfeiture was properly entered on bail bond. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966).
Judgment on forfeited bail bond may not exceed the amount of the penalty of the bond. State v. Morse, 171 Neb. 87, 105 N.W.2d 572 (1960).
On motion of state, bail bond may be forfeited. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960).
On forfeiture of recognizance, court should enter judgment. State v. Konvalin, 165 Neb. 499, 86 N.W.2d 361 (1957); State v. Honey, 165 Neb. 494, 86 N.W.2d 187 (1957).
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
It is within the discretion of the trial court to remit a part or all of the penalty of a bail bond. State v. Ernest, 203 Neb. 290, 278 N.W.2d 355 (1979).
Procedure followed was proper to obtain a remission of bail. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960).
Remission of part or all of penalty on forfeiture of recognizance rests in sound discretion of trial court. State v. Konvalin, 165 Neb. 499, 86 N.W.2d 361 (1957) .
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
Disposition of funds of forfeited recognizance, see section 29-2708.
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
Prisoners, disposition of untried charges, see section 29-3801 et seq.
Annotations
Nebraska's speedy trial statutes also apply to prosecutions commenced by the filing of a complaint in county court. State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).
Nebraska has created a statutory speedy trial right, which generally provides that a person who has been indicted for a criminal offense must be brought to trial within 6 months of his or her indictment. State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
The procedure set out in sections 29-3801 et seq., rather than that in sections 29-1201 et seq., applies to instate prisoners. State v. Ebert, 235 Neb. 330, 455 N.W.2d 165 (1990).
Record did not show delay entitling defendant to discharge hereunder. Shaffer v. State, 123 Neb. 121, 242 N.W. 364 (1932).
Where jury called for term was excused before felony was committed, information was properly filed at beginning of next regular term. Nichols v. State, 109 Neb. 335, 191 N.W. 333 (1922).
Where no information or indictment is filed against defendant during the term at which he was held to answer, he is entitled to discharge. Cerny v. State, 62 Neb. 626, 87 N.W. 336 (1901).
Information filed in time and amended at next term does not entitle accused to discharge. Barker v. State, 54 Neb. 53, 74 N.W. 427 (1898).
When accused is fugitive from justice, he is not entitled to discharge because of failure to file information. Ex parte Trester, 53 Neb. 148, 73 N.W. 545 (1897).
Upon failure to indict or file information in term to which recognized, defendant is discharged. State ex rel. Conroy v. Miller, 43 Neb. 860, 62 N.W. 238 (1895).
When witnesses for state are not prevented from attending and no indictment is brought, accused is entitled to discharge. Ex parte Two Calf, 11 Neb. 221, 9 N.W. 44 (1881).
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.
Cross References
Constitutional provision:
Rights of accused, see Article I, section 11, Constitution of Nebraska.
Annotations
Subsection (1) of this section does not demand that all previously scheduled civil trials accommodate the rescheduling of a criminal trial as a result of a defense motion to continue. State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006).
The speedy trial right does not apply to parental termination proceedings. In re Interest of C.P., 235 Neb. 276, 455 N.W.2d 138 (1990).
The right to a speedy trial applies only to criminal trials and, thus, does not apply to postconviction actions, which are civil in nature. State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 (1989).
Sections considered in reviewing order restricting publication of certain information before trial of murder case. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975).
This section is directory and does not grant any right of discharge short of six months. State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973).
Defendant received a speedy trial within ambit of Chapter 29, article 12, R.S.Supp.,1972. State v. Kennedy, 189 Neb. 423, 203 N.W.2d 106 (1972).
The primary burden is upon the state to bring accused to trial within time provided by law and if it does not he is entitled to discharge in absence of express waiver or waiver as provided by statute. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
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.
Annotations
This section and section 25-1148 do not define whether a defendant's right to a speedy trial has been violated. State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997).
A trial court may, in a proper case, order a continuance on its own motion and in the absence of a showing of abuse of discretion, its ruling on a motion for a continuance will not be disturbed on appeal. State v. Lee, 195 Neb. 348, 237 N.W.2d 880 (1976).
A defendant in a criminal case may not discharge his counsel on the eve of trial and obtain a continuance without demonstrating good cause therefor. State v. Coleman, 190 Neb. 441, 208 N.W.2d 690 (1973).
To support a continuance of trial for good cause beyond six months from filing of information, the court must make specific findings, based upon substantial preponderance of evidence, as to the cause or causes of such extension and the period of extension attributable to such cause or causes. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
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.
Cross References
Juvenile in custody, adjudication hearing, see sections 43-271 and 43-277.
Rights of accused, see Article I, section 11, Constitution of Nebraska.
Annotations
1. General
2. Speedy trial, computation
3. Commencement of speedy trial period
4. Amended or refiled charges
5. Excludable periods, generally
6. Proceedings concerning the defendant
7. Defendant's pretrial motions or filings
8. Continuance at request of defendant or with defendant's consent
9. Continuance at request of prosecution
10. Interlocutory appeal
11. Good cause
12. Specific findings by court required
13. Trial not within six months
14. Waiver
15. Interplay with constitutional speedy trial requirement
16. Miscellaneous
1. General
This section requires discharge of a defendant whose case has not been tried within 6 months after the filing of the information. State v. Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).
The purpose of Nebraska's speedy trial act, sometimes called the "6-month rule," is protection of an accused from a criminal charge pending for an undue length of time. State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987).
Generally, an accused cannot take advantage of a delay in being brought to trial where his action or inaction was responsible for the delay. State v. Searles, 214 Neb. 849, 336 N.W.2d 571 (1983).
This section requires that every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014); State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).
Under subsection (1) of this section, every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011).
This section requires discharge of a defendant whose case has not been tried within 6 months after the filing of the information, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008).
This section requires that every person indicted or informed against for any offense shall be brought to trial within 6 months, unless the 6 months are extended by any period to be excluded in computing the time for trial. State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005).
The purpose of the speedy trial act, sometimes called the "6-month rule," is protection of an accused from a criminal charge pending for an undue length of time. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
2. Speedy trial, computation
To calculate the time for speedy trial purposes, a court must exclude the day the complaint was filed, count forward 6 months, back up 1 day, and then add any time excluded under subsection (4) of this section to determine the last day the defendant can be tried. State v. Chapman, 307 Neb. 443, 949 N.W.2d 490 (2020).
For speedy trial purposes, the calculation of excludable time for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).
This section does not impose a unitary speedy trial clock on all joined codefendants. The period of delay is determined by first calculating the defendant's speedy trial time absent the codefendant exclusion and then determining the number of days beyond that date that the joint trial is set to begin. State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
In calculating the number of excludable days resulting from an interlocutory appeal, for speedy trial purposes, the period to be excluded due to the appeal commences on and includes the date on which the defendant filed his or her notice of appeal. Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
To determine the last day on which a defendant may be tried for speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any time excluded under subsection (4) of this section. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
Once a mistrial is granted, the speedy trial clock is restarted. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).
For purposes of calculating the 6-month speedy trial act time period in a direct information case, the direct information should be deemed filed the day the order is entered finding probable cause or the day the defendant waives the preliminary hearing, and the speedy trial act calculations should be measured from either of these events. Pursuant to the Nebraska Supreme Court's case law interpreting the speedy trial act, the statutory 6-month speedy trial time period begins to run the day following the filing of the information, and in the case of a direct information, the day the information is filed for speedy trial act purposes is the day the district court finds probable cause or the day the defendant waives the preliminary hearing. State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
Where a retrial is ordered, it is the trial for the specific criminal offenses originally charged and other offenses required by law to be joined therewith that must begin within 6 months of the retrial order. The 6-month period is computed by moving forward 6 months, backing up 1 day, and then adding any excludable periods. State v. Blackson, 256 Neb. 104, 588 N.W.2d 827 (1999).
The six-month period within which an accused is to be brought to trial is computed by excluding the day of the filing of the information, and refers to a period of six calendar months, not 180 days. State v. Jones, 208 Neb. 641, 305 N.W.2d 355 (1981).
To calculate the deadline for trial under this section, a court must exclude the day the State filed the information, count forward six months, back up one day, and then add any time excluded under subsection (4) of this section. State v. Jaso, 31 Neb. App. 236, 978 N.W.2d 463 (2022).
If an information is filed initially in district court, referred to as a "direct information," such filing is treated in the nature of a complaint until a preliminary hearing is held or waived. In the case of a direct information, the day the information is filed for speedy trial act purposes is the day the district court finds probable cause or the day the defendant waives the preliminary hearing. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
To calculate the deadline for trial under the speedy trial statutes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then add any time excluded under subsection (4) of this section. State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).
To calculate the time for statutory speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any excludable time to determine the last day the defendant can be tried. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010); State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008); State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005).
Where misdemeanor counts are filed with felony counts and it is clear that the State intends to try the misdemeanor and felony offenses together, the time that the misdemeanors and felonies were pending in county court is not tacked on for speedy trial purposes. State v. Timmerman, 12 Neb. App. 934, 687 N.W.2d 24 (2004).
Speedy trial time is calculated by excluding the date the information was filed, counting forward 6 calendar months, backing up 1 day, and then adding the excludable time periods to that date. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
3. Commencement of speedy trial period
For cases commenced with a complaint in county court but thereafter bound over to district court, the 6-month statutory speedy trial period does not commence until the filing of the information in district court. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
In cases commenced and tried in county court, the 6-month statutory period within which an accused must be brought to trial begins to run on the date the complaint is filed. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
Pursuant to subsection (1) of this section, where a felony offense is involved, the 6-month speedy trial period commences to run from the date the indictment is returned or the information filed, and not from the time the complaint is filed. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).
The 6-month period in which the trial must begin commences to run from the date the information is filed and not from the time the complaint is filed. State v. Trammell, 240 Neb. 724, 484 N.W.2d 263 (1992).
This section requires that every person charged with a criminal offense be brought to trial within six months. In cases commenced and tried in the county court, the six-month period begins to run on the date the complaint is filed in that court. State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).
In felony cases, the six-month period runs from the date the indictment is returned or information filed, not from date complaint is filed in county court. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).
A defendant's right to a speedy trial begins when he is indicted or informed against or arrested. State v. Spidell, 192 Neb. 42, 218 N.W.2d 431 (1974).
Where a felony offense is involved, the six-month period commences to run from the date the indictment is returned or the information filed. State v. Born, 190 Neb. 767, 212 N.W.2d 581 (1973).
The limitation for time of trial of criminal cases is six months from date indictment is returned or information filed. State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973).
For cases commenced with a complaint in county court but thereafter bound over to district court, the 6-month statutory speedy trial period does not commence until the filing of the information in district court. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
Nebraska case law and the plain language of this section make it clear that the 6-month speedy trial period begins to run upon the filing of the information in district court. The time during which an underlying complaint is pending in county court before the defendant is bound over to district court is not counted. State v. Timmerman, 12 Neb. App. 934, 687 N.W.2d 24 (2004).
Where an information was filed directly in district court, the 6-month time period did not commence until a preliminary hearing was held and the defendant was bound over for trial. State v. Boslau, 8 Neb. App. 275, 593 N.W.2d 747 (1999).
4. Amended or refiled charges
The original charges have not been "abandoned" or "dismissed" when an amended complaint or information continues to make those charges, but additionally charges a different crime, and, therefore, the 6-month statutory speedy trial period continues to run as to the charges that have not changed, and a tacking-and-tolling analysis as to those charges is superfluous. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
An amended complaint or information which charges a different crime, without charging the original crime, constitutes an abandonment of the first complaint or information and acts as a dismissal of the same; the time between the dismissal and refiling of the same or a similar charge is not includable in calculating the 6-month time period. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).
The time between the dismissal and refiling of the same or a similar charge is not includable in calculating the 6-month time period set forth in this section. To avoid a defendant's absolute discharge from an offense charged, as dictated by section 29-1208, the State must prove by a preponderance of the evidence the existence of a period of time which is authorized by subsection (4) of this section to be excluded in computing the time for commencement of the defendant's trial. State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001).
When the State dismissed a criminal charge contained in an information against defendant and subsequently files an information against defendant which alleges (1) the same offense charged in the previously dismissed information, (2) an offense committed simultaneously with a lesser-included offense charged in the information previously dismissed, or (3) commission of a crime that is a lesser-included offense of the crime charged in the dismissed information, time which elapses during the pendency of the informations shall be charged against the State in determining the last day for commencement of a defendant's trial pursuant to the Nebraska speedy trial act. State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991).
Time between dismissal and refiling of a charge is not includable in calculating the six-month time period set forth in this section. State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989).
The time between the dismissal of an information and its refiling is not includable, or is tolled, for purposes of the statutory 6-month period. However, any nonexcludable time that passed under the original information is tacked onto any nonexcludable time under the refiled information, if the refiled information alleges the same offense charged in the previously dismissed information. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
During the period between dismissal of a first information and the filing of a second information which alleges the same charges, the speedy trial time is tolled and the time resumes upon the filing of the second information, including the day of its filing. State v. Florea, 20 Neb. App. 185, 820 N.W.2d 649 (2012).
5. Excludable periods, generally
Under subsection (4) of this section, the State is entitled to rely on evidence offered by the defendant and received by the court to meet its burden of proving excludable time. State v. Williams, 313 Neb. 981, 987 N.W.2d 613 (2023).
A continuance refers to the circumstance where a court proceeding set for one date is postponed to a future date; a continuance must be granted at the request or with the consent of the defendant or his or her counsel before the resulting period of delay is excludable. State v. Space, 312 Neb. 456, 980 N.W.2d 1 (2022).
Where the same district court judge found a defendant incompetent to stand trial in a different case on or about the time that the State filed the information against the defendant in the instant case, the State proved by the greater weight of the evidence that the delay due to the competency proceedings and finding of incompetency in the other criminal case against the defendant should be excluded in the instant case under subdivision (4)(a) of this section. State v. Moore, 312 Neb. 263, 978 N.W.2d 327 (2022).
The statutory phrase "including, but not limited to" means the pretrial motions listed under subdivision (4)(a) of this section are provided as examples and are not intended to be an exhaustive list. State v. Webb, 311 Neb. 694, 974 N.W.2d 317 (2022).
Unless there is no appeal, a motion is not finally granted or determined for speedy trial purposes until an appellate court has finally decided the matter. Thus, periods to be excluded under subdivision (4)(a) of this section include the period of time between the denial of a defendant's pretrial motion and the filing of an interlocutory appeal from that motion, if such appeal is filed. State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022).
An excludable period of time under subdivision (4)(d) of this section did not occur because the State failed to prove it made diligent efforts to serve the bench warrant on the defendant while he was not incarcerated in another state. State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
A pending arrest warrant can result in excludable speedy trial time only if the State proves diligent efforts to serve the warrant have been tried and failed. State v. Jennings, 308 Neb. 835, 957 N.W.2d 143 (2021).
In determining whether time is excludable for speedy trial purposes under subsection (4)(d) of this section, a trial date that is scheduled within 6 months after the defendant's reappearance will be presumed to be the next reasonably available trial date without the State being required to present further evidence to justify the setting. State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).
When a defendant has commenced a period of delay due to his or her absence or unavailability, the period of time from the defendant's later availability to the next reasonably available trial date is excludable under subsection (4)(d) of this section. State v. Petty, 269 Neb. 205, 691 N.W.2d 101 (2005).
An excludable period under subsection (4)(d) of this section does not commence when a defendant fails to appear at a hearing of which he or she has no notice. The period of time during which a warrant is pending is not excludable when the warrant is issued after defendant's failure to appear at a hearing of which he had no notice, unless the State shows that diligent efforts to obtain defendant's presence have been tried and failed. State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992).
When a defendant has commenced a period of delay due to his or her absence or unavailability, the period of time from the defendant's later availability to the next reasonably available trial date is excludable under this section. State v. Letscher, 234 Neb. 858, 452 N.W.2d 767 (1990).
A delay may be justified for a good cause, such as a congested docket in the trial court, or scheduling difficulties on the part of the trial judge or the prosecutor. Where a defendant fails to appear for a scheduled trial and does not reappear until after the jury term, the period between the trial date and the next regular jury term may be excluded in determining whether the defendant has been denied a speedy trial. State v. Kriegler, 225 Neb. 486, 406 N.W.2d 137 (1987).
A plea agreement, which by its very terms delays the time for a defendant to plead, tolls the speedy trial statute. State v. McNitt, 216 Neb. 837, 346 N.W.2d 259 (1984).
The reasonable time used to obtain a deposition requested by a defendant in preparation for trial is excluded in computing the last day permissible for commencement of trial. State v. Fatica, 214 Neb. 776, 336 N.W.2d 101 (1983).
The time from filing to final disposition of pretrial motions must be excluded in computing the last day permissible for trial. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
The time from filing of pretrial motions to their final disposition is excluded in computing the time for trial. State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980).
Trial is to be held within six months after filing of information, but time from filing to final disposition of pretrial motions, or delay caused by defendant's absence, is excluded. State v. Stewart, 195 Neb. 90, 236 N.W.2d 834 (1975).
In computation of the six months within which accused must be brought to trial, periods of delay because of motions for change of venue and for continuance granted at the request, or with the consent, of defense counsel are excluded. State v. Ogden, 191 Neb. 7, 213 N.W.2d 349 (1973).
For speedy trial purposes, the calculation of excludable time for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. State v. Jaso, 31 Neb. App. 236, 978 N.W.2d 463 (2022).
Pursuant to subsection (4)(a) of this section, the time during which an appeal of a denial of a motion for discharge is pending on appeal is excludable from the speedy adjudication trial clock. In re Interest of Shaquille H., 20 Neb. App. 141, 819 N.W.2d 741 (2012).
For purposes of speedy trial calculation, the period of time which elapses between scheduled pretrial hearings for which a defendant fails to appear and bond review hearings for which the defendant does appear is excluded from the 6-month statutory speedy trial period. State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (2003).
6. Proceedings concerning the defendant
An excludable period of time under subdivision (4)(a) of this section did not occur because the court could not reasonably infer that defendant was incarcerated pending further proceedings. State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
A "proceeding" within the meaning of subsection (4)(a) of this section is an application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).
An "examination and hearing on competency" within the meaning of subsection (4)(a) of this section is the well-defined statutory procedure for determining competency to stand trial established by section 29-1823. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).
An interlocutory appeal taken by the defendant is a period of delay resulting from other proceedings concerning the defendant within the meaning of subsection (4)(a) of this section. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
The period of delay resulting from an attempt to have a defendant examined to determine his mental and physical competency to stand trial is not included in calculating the speedy trial period. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).
An inmate request form which is not an application to a court of justice for relief is not a proceeding under this section. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
7. Defendant's pretrial motions or filings
There is no general exception to subsection (4)(a) of this section for delays in hearing a defendant's pretrial motions due to continuances granted to the State. State v. Nelson, 313 Neb. 464, 984 N.W.2d 620 (2023).
It is presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
Subsection (4)(a) of this section excludes all time between the time of the filing of a defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. The excludable period commences on the day immediately after the filing of a defendant's pretrial motion. Final disposition under subsection (4)(a) of this section occurs on the date the motion is granted or denied. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
A motion for discovery filed by a defendant is a pretrial motion and the time period during which it is pending should be excluded for speedy trial calculation purposes. State v. Washington, 269 Neb. 728, 695 N.W.2d 438 (2005).
Pursuant to subsection (4)(a) of this section, it will be presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. State v. Turner, 252 Neb. 620, 564 N.W.2d 231 (1997); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).
An excludable time period under subsection (4)(a) of this section commences on the day immediately after the filing of a defendant's pretrial motion. To avoid a defendant's absolute discharge from an offense charged, as dictated by section 29-1208, the State, by a preponderance of evidence, must prove existence of a time period to be excluded under subsection (4) of this section. State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).
Pursuant to subsection (4)(a) of this section, a defendant must accept reasonable delay as a consequence of the defendant's pretrial motions. State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).
Judicial delay, absent a showing of good cause, does not suspend a defendant's right to a speedy trial. Where the court took 1 year 7 months 24 days to resolve a single motion to suppress, the delay suffered by the defendant was not the reasonable consequence of filing a motion and did not toll the speedy trial statute. State v. Wilcox, 224 Neb. 138, 395 N.W.2d 772 (1986).
Time utilized in disposing of pretrial motion filed by defendant is excluded by statute. State v. Classen, 216 Neb. 323, 343 N.W.2d 749 (1984).
Pursuant to subdivision (4)(a) of this section, it is presumed that a delay in hearing defense pretrial motions is attributable to the defendant unless the record affirmatively indicates otherwise. A delay due to the appointment of the district court judge to the Nebraska Supreme Court, which caused the case to be reassigned, should be attributable to the defendant's motion to suppress as reasonable delay when there is no evidence of judicial neglect. State v. Carrera, 25 Neb. App. 650, 911 N.W.2d 849 (2018).
Unlike the requirement in subsection (4)(f) of this section that any delay be for good cause, conspicuously absent from subsection (4)(a) of this section is any limitation, restriction, or qualification of the time which may be charged to the defendant as a result of the defendant's motions. Rather, the plain terms of subsection (4)(a) exclude all time between the time of the filing of the defendant's pretrial motions and their final disposition, regardless of the promptness or reasonableness of the delay. State v. Johnson, 22 Neb. App. 747, 860 N.W.2d 222 (2015).
Because the filing of a defendant's pro se plea in abatement tolled the statutory speedy trial clock, and the excludable period continued until the court ruled on the plea in abatement, when the defense counsel filed a subsequent plea in abatement, the clock was already stopped and such filing had no effect on the speedy trial calculation. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
Once defendant's pro se plea in abatement was filed by the clerk of the district court, the statutory speedy trial clock stopped until the trial court disposed of the pretrial motion, and it was irrelevant for speedy trial purposes whether defendant's plea in abatement was properly filed. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
Speedy trial statute excludes all time between the filing of a defendant's pretrial motions and their disposition, regardless of the promptness or reasonableness of the delay; the excludable period commences on the day immediately after the filing of a defendant's pretrial motion, and final disposition occurs on the date the motion is granted or denied. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
Final disposition under subsection (4)(a) of this section occurs on the date the defendant's motion is granted or denied. State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).
In a speedy trial analysis under subsection (4)(a) of this section, the excludable period commences on the day immediately after the filing of a defendant's pretrial motion. State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010).
The excludable period under this section commences on the day immediately after the filing of a defendant's pretrial motion. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
A defendant's successful motion in the district court to suppress evidence is not finally granted or determined, unless there is no appeal, until a judge of the Court of Appeals has decided the matter under section 29-116. The time from the defendant's filing of such a motion until final determination is excluded in the speedy trial calculation. State v. Hayes, 10 Neb. App. 833, 639 N.W.2d 418 (2002).
8. Continuance at request of defendant or with defendant's consent
A prior defense motion for indefinite continuance remains effective, in terms of excluding time from the statutory 6-month speedy trial period, as to all charges in an amended information when the amended information charges some of the same crimes as the preceding information, as well as additional crimes unrelated to the same facts of the preceding information. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
Without severance of the individual charges from the pending prosecution, a motion for continuance is not applied piecemeal to certain charges under the information, but not to others, in the context of applying the 6-month statutory speedy trial period. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
The delay caused by a continuance granted for the defendant is excluded from the 6-month period during which the defendant must be brought to trial, pursuant to subsection (4)(b) of this section. State v. Wells, 277 Neb. 476, 763 N.W.2d 380 (2009).
For speedy trial purposes, the calculation for a continuance begins the day after the continuance is granted and includes the day on which the continuance ends. In the case of an indefinite continuance, the calculation runs from the day immediately following the grant of the continuance and ends when the defendant takes some affirmative action, such as requesting a trial date, to show his or her desire for the indefinite continuance to end or, absent such a showing, on the rescheduled trial date. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
In determining whether a period of delay is attributable to defense counsel's motion to continue, an appellate court need not inquire as to what extent there was "good cause" for the delay. State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006).
In computing the time for trial the period of delay resulting from a continuance granted at the request of the defendant or his counsel is excluded. State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986).
Pursuant to subsection (4)(b) of this section, where a juvenile's counsel agrees to reset an adjudication proceeding, such period of delay resulting therefrom is excludable. In re Interest of Shaquille H., 20 Neb. App. 141, 819 N.W.2d 741 (2012).
Under subdivision (4)(b) of this section, the period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel shall be excluded from the calculation of the time for trial. State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011).
When a nonlawyer makes a motion for continuance made on behalf of a defendant in a criminal case, such motion constitutes a nullity and cannot form the basis for an exclusion from the speedy trial calculation under subsection (4)(b) of this section. State v. Craven, 17 Neb. App. 127, 757 N.W.2d 132 (2008).
Where the defendant appeared without the private counsel that he had earlier informed the court he intended to retain and the trial court appointed a public defender and suddenly announced that it was continuing the matter, the resulting delay was properly excluded under subsection (4)(f) of this section rather than (4)(b), because the record did not show that the postponement was granted at the defendant's request or with his consent. State v. Craig, 15 Neb. App. 836, 739 N.W.2d 206 (2007).
Subsection (4)(b) clearly excludes from the 6-month time limit periods of delay resulting from continuances granted at the request of defendant's counsel. State v. Stubbs, 5 Neb. App. 38, 555 N.W.2d 55 (1996).
9. Continuance at request of prosecution
Pursuant to subdivision (4)(c)(i) of this section, the prosecution established a period of delay under the speedy trial statute, because the prosecutor's affidavit demonstrated the need for a continuance due to the unavailability of material witnesses; the prosecutor's exercise of due diligence in obtaining witnesses; and reasonable grounds to believe such evidence will be available at later date. State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).
Pursuant to subdivision (4)(c)(ii) of this section, the prosecution established a period of delay under the speedy trial statute, because the prosecutor's affidavit demonstrated the need for additional time to prepare its case because of exceptional circumstances. State v. Billingsley, 309 Neb. 616, 961 N.W.2d 539 (2021).
Where the period of delay sought by the State's motion fell under the period specifically enumerated in subsection (4)(c)(i) of this section, that was the applicable subsection for purposes of speedy trial analysis. State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008).
10. Interlocutory appeal
When the State is statutorily authorized to take an interlocutory appeal from a district court's order granting a defendant's pretrial motion in a criminal case, then such an appeal is an expected and reasonable consequence of the defendant's motion and the time attributable to the appeal, regardless of the course the appeal takes, is properly excluded from speedy trial computation. State v. Hood, 294 Neb. 747, 884 N.W.2d 696 (2016).
Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002).
Where further proceedings are to be had following an interlocutory appeal, for speedy trial purposes, the period of time excludable due to the appeal concludes when the district court first reacquires jurisdiction over the case by taking action on the mandate of the appellate court. An interlocutory appeal taken by the defendant is a period of delay resulting from other proceedings concerning the defendant within the meaning of subsection (4)(a) of this section. State v. Ward, 257 Neb. 377, 597 N.W.2d 614 (1999).
11. Good cause
A continuance by the court's own motion, or judicial delay, does not toll the speedy trial statute absent a showing by the State of good cause under subsection (4)(f) of this section. State v. Williams, 313 Neb. 981, 987 N.W.2d 613 (2023).
Trials have rules, and failures to comply with court rules that impede the business of the court may constitute good cause under subsection (4) of this section. State v. Williams, 313 Neb. 981, 987 N.W.2d 613 (2023).
A court may find that the risk of exposing trial participants to COVID-19 is good cause to delay a defendant's right to a speedy trial within this section. State v. Gnanaprakasam, 310 Neb. 519, 967 N.W.2d 89 (2021).
Evidence of good cause is properly presented at the hearing on the motion for absolute discharge and need not be articulated at the time of the court's sua sponte order delaying trial. State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
There is no legal principle that requires the good cause shown to be consistent with the court's prior, contemporaneous rationale when sua sponte delaying trial. State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
When a trial court's sua sponte decision to delay trial implicates statutory speedy trial rights, the exclusion of the period attributable to such delay is governed by a showing on the record of good cause as described by subdivision (4)(f) of this section. State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
"Good cause" means a substantial reason, one that affords a legal excuse. Good cause is a factual question to be addressed on a case-by-case basis. State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021).
Evidence of a crowded docket alone is insufficient to support a finding of good cause for exclusion of time periods under this section. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).
Pursuant to subsection (4)(f) of this section, good cause is not shown simply because there has been no proof that the State acted in bad faith or because the substantive issue raised by the appeal has not previously been decided. State v. Recek, 263 Neb. 644, 641 N.W.2d 391 (2002).
The period of time from the trial court's ruling on a motion for depositions until the depositions are concluded is not excludable under subsection (4)(a) of this section. However, such a period may or may not be excluded under subsection (4)(f) of this section, the inquiry turning upon whether there is good cause for the delay. Pursuant to subsection (4)(a) of this section, a proceeding is an application to a court of justice, however made, for aid in the enforcement of rights, for relief, for redress of injuries, for damages, or for any remedial object. State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
If a trial court relies upon section 29-1207(4)(f), R.R.S.1943, in excluding a period of delay from the six-month computation, a general finding of "good cause" will not suffice; there must be specific findings as to the good cause. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980); State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).
It is a misapplication of the "good cause" provision of the speedy trial statute to exclude a defendant's trial preparation time, such as securing a transcript of a previous hearing, which is not specifically within this section, when the State has not proved both a period of delay and good cause for it. State v. Feldhacker, 11 Neb. App. 872, 663 N.W.2d 143 (2003).
Pursuant to subsection (4) of this section, it is the State's burden to establish that facts showing good cause under the speedy trial statute exist to delay a defendant's trial beyond the 6-month time period. State v. Rhoads, 11 Neb. App. 731, 660 N.W.2d 181 (2003).
Statements made by a judge cannot be used to show good cause under subsection (4)(f) of this section. State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003).
12. Specific findings by court required
When ruling on a motion for absolute discharge pursuant to section 29-1208, the trial court shall make specific findings of each period of delay excludable under subdivisions (4)(a) to (e) of this section, in addition to the findings under subdivision (4)(f) of this section. Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).
A juvenile court judge must make specific findings on the record regarding any excludable time periods as defined in this section before making the ultimate determination as to whether discharge would be in the best interests of a child. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).
When ruling on a motion for absolute discharge, specific findings of all excludable periods of subdivisions (4)(a) to (f) of this section are required. In re Interest of Shaquille H., 285 Neb. 512, 827 N.W.2d 501 (2013).
Effective March 9, 2009, when ruling on a motion for absolute discharge pursuant to section 29-1208, the trial court shall make specific findings of each period of delay excludable under subsections (4)(a) to (e) of this section, in addition to the findings under subsection (4)(f) of this section. Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
13. Trial not within six months
The burden of proof is upon the State to show that one or more of the excluded time periods under subsection (4) of this section are applicable when the defendant is not tried within 6 months. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009); State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 (2008); State v. Droz, 14 Neb. App. 32, 703 N.W.2d 637 (2005); State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).
To obtain absolute discharge under section 29-1208, a defendant is not required to show prejudice sustained as the result of failure to bring the defendant to trial within 6 months in accordance with subsection (2) of this section. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
The State has the burden of proving that one or more of the excluded periods of time under subsection (4) of this section are applicable if defendant is not tried within 6 months of the filing of the information in a criminal action. State v. Groves, 238 Neb. 137, 469 N.W.2d 364 (1991); State v. Beck, 212 Neb. 701, 325 N.W.2d 148 (1982); State v. Bolton, 210 Neb. 694, 316 N.W.2d 619 (1982); State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441 (2010); State v. Washington, 11 Neb. App. 598, 658 N.W.2d 302 (2003).
It may be reasonably argued that the exclusionary period set forth in section 29-1207(4), R.R.S.1943, would cover the period from a defendant's commitment as a sexual sociopath to the court's opinion in State v. Shaw, 202 Neb. 766, 277 N.W.2d 106 (1979) or the Legislature's enactment of sections 29-2911 to 29-2921, R.R.S.1943. However, since this defendant was not brought to trial within six months of either date, the issue of when to begin computing the time will not be decided here. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).
If a defendant is not tried within six months of the commencement of a criminal action, the State has the burden of proving by a substantial preponderance of the evidence that one or more of the excluded periods of time under subsection (4) of this section, is applicable. State v. Johnson, 201 Neb. 322, 268 N.W.2d 85 (1978).
Where trial not commenced within six months of filing the information, upon motion for discharge, burden is on the state to prove one or more of the excluded periods is applicable, or defendant is entitled to an absolute discharge. State v. Hankins, 200 Neb. 69, 262 N.W.2d 197 (1978).
To support a continuance of trial for good cause beyond six months from filing of information, the court must make specific findings, based upon substantial preponderance of evidence, as to the cause or causes of such extension and the period of extension attributable to such cause or causes. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
Where a defendant has not been brought to trial within six months and before trial or plea of guilty or nolo contendere he moves for his discharge, the state's burden is to prove by a substantial preponderance of the evidence that one or more of the excludable periods hereunder is applicable. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
If defendant is not brought to trial before the running of the statutory speedy trial time period, as extended by excludable periods, he or she shall be entitled to his or her absolute discharge. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
14. Waiver
A defendant permanently waives his or her statutory speedy trial rights under subdivision (4)(b) of this section when an ultimately unsuccessful motion for discharge results in the continuance of a timely trial to a date outside the statutory 6-month period, as calculated on the date the motion for discharge was filed. State v. Riessland, 310 Neb. 262, 965 N.W.2d 13 (2021).
Although amendments to subdivision (4)(b) of this section providing for waiver of speedy trial rights if delay results from a request for continuance were designed to prevent abuse, it does not follow that the waiver set forth therein applies only if the defendant's continuance was in bad faith; such a case-by-case evaluation of subjective intent would be untenable, and this section does not provide for it. State v. Bridgeford, 298 Neb. 156, 903 N.W.2d 22 (2017).
The reason for the defendant's request for a continuance is irrelevant to whether the defendant has waived the statutory right to a speedy trial by requesting a continuance that results in the trial's being rescheduled to a date more than 6 months after the indictment is returned or information filed. State v. Gill, 297 Neb. 852, 901 N.W.2d 679 (2017).
For purposes of waiving the statutory 6-month speedy trial period, a defendant's motion for indefinite continuance in an ongoing prosecution under the same case number applies not only to those charges that were pending at the time the motion was made, but also to any charges later added by amendment. State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014).
A motion to discharge filed before subdivision (4)(b) of this section became operative cannot waive the statutory right to a speedy trial in the manner established by State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014). State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286 (2014).
A defendant's motion to discharge based on statutory speedy trial grounds will be deemed to be a waiver of that right under subdivision (4)(b) of this section where (1) the filing of such motion results in the continuance of a timely trial to a date outside the statutory 6-month period, as calculated on the date the motion to discharge was filed, (2) discharge is denied, and (3) that denial is affirmed on appeal. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014); State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).
For purposes of the waiver provided in subdivision (4)(b) of this section, a motion to discharge is a request for a continuance. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
Subdivision (4)(b) of this section, as amended, provides for a permanent waiver of the statutory right to a speedy trial. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
Where an appellate court determines that a defendant waived his or her statutory right to a speedy trial, the court is not required to calculate the days remaining to bring him or her to trial under this section. State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
The statutory right to a speedy trial is not a personal right that can be waived only by a defendant. Defense counsel's request for a continuance in order to prepare for trial waives a defendant's statutory right to a speedy trial despite the defendant's objections to the continuance. State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).
This section does not address waivers of the right to a speedy trial, nor does it suggest that a waiver cannot be limited in time. This section does not provide that by requesting a continuance, a defendant has completely waived the right to a speedy trial. Rather, it provides that the delay caused by a continuance granted for the defendant is excluded from the 6-month period and counted against the defendant. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
A defendant may waive his right to a speedy trial under this section so long as he is properly advised of his right to a speedy trial and the waiver is entered voluntarily, knowingly, and intelligently. A defendant may terminate his waiver of a speedy trial by filing a written request for trial with the clerk of the court in which the defendant is to be tried. From the date the defendant files his written request for trial, the six-month period for the state to bring a defendant to trial provided in this section shall begin anew. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
Where a defendant has waived his right to a speedy trial and thereafter withdraws that waiver and renews his request for a speedy trial, the time between the initial waiver and the later request to withdraw must be excluded from the computation of the six-month period. State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).
The failure of the accused to object to the setting of a trial date more than six months after charges were filed did not constitute a waiver of his rights under this section. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).
It was not the duty of the trial court to suggest to the defendant or his counsel that he file a motion for discharge. State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974).
Once a defendant has unconditionally waived his or her right to a speedy trial, it is his or her burden to show by a preponderance of the evidence that the waiver was conditional or was otherwise invalid. State v. Herngren, 8 Neb. App. 207, 590 N.W.2d 871 (1999).
15. Interplay with constitutional speedy trial requirement
A defendant's appeal of a final order denying a pretrial motion for absolute discharge on statutory speedy trial grounds did not result in appellate jurisdiction to review a nonfinal order that denied the motion on constitutional speedy trial grounds. State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
Pursuant to subsection (1) of this section, the constitutional right to a speedy trial is guaranteed by U.S. Const. amend. VI and Neb. Const. art. I, section 11; the constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002).
The constitutional right to a speedy trial and the statutory implementation of that right under this section exist independently of each other. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which courts must approach each case on an ad hoc basis. This balancing test involves four factors: length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. None of these four factors standing alone is a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, the factors are related and must be considered together with such other circumstances as may be relevant. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
The constitutional right to a speedy trial and the statutory implementation of that right under this section exist independently of each other. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).
Although the constitutional right to a speedy trial and the statutory implementation of that right exist independently of each other, this section provides a useful standard for assessing whether the length of the delay is unreasonable under the U.S. and Nebraska Constitutions. State v. Schmader, 13 Neb. App. 321, 691 N.W.2d 559 (2005).
The 6-month timeframe provided by this section is a useful standard for assessing whether the length of the delay under the Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 1282, 33 L. Ed. 2d 101 (1972), speedy trial test is unreasonable under the Constitutions, both state and federal. State v. Robinson, 12 Neb. App. 897, 687 N.W.2d 15 (2004).
16. Miscellaneous
For purposes of speedy trial calculation, there is no meaningful distinction between the phrases "period of time" and "period of delay." State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021); State v. Feldhacker, 267 Neb. 145, 672 N.W.2d 627 (2004).
A Nebraska prisoner sought relief under two different speedy trial statutes, but only section 29-3805, governing intrastate detainers, applied. State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
"Misdemeanor offense involving intimate partners," within the meaning of subsection (2) of this section, does not encompass any and all misdemeanors in which intimate partners may be engaged. Rather, the exception applies only to those misdemeanor offenses in which the involvement of an "intimate partner" is an element of the offense. State v. Lebeau, 280 Neb. 238, 784 N.W.2d 921 (2010).
A court may not apply Nebraska's 6-month speedy trial statute under this section to determine whether a prisoner is timely brought to trial under article III(a) of the Agreement on Detainers. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
Subsection (3) of this section does not apply to a defendant who has not yet been brought to trial. State v. Baker, 264 Neb. 867, 652 N.W.2d 612 (2002).
Once the operation of Nebraska's speedy trial statutes have been triggered by the filing of an indictment or information, the statutory right of a defendant under the control of prosecuting authorities who knowingly extradite him or her to another state or to federal authorities is governed by this section, not the Agreement on Detainers. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001).
For purposes of this section, the date of the mandate on remand is the date on which the district court first takes action pursuant to the mandate. State v. White, 257 Neb. 943, 601 N.W.2d 731 (1999).
For purposes of subsection (3) of this section, the date of the "mandate on remand" is the date on which the district court first takes action pursuant to the mandate. State v. Kinser, 256 Neb. 56, 588 N.W.2d 794 (1999).
A ruling on a motion for absolute discharge based upon an accused criminal's nonfrivolous claim that his or her statutory speedy trial rights were violated is final and appealable. For the purpose of determining whether an accused's speedy trial rights under this section have been violated, successive informations charging the same offenses are not to be considered separately. Where a retrial is ordered, it is the trial for the specific criminal offenses originally charged and other offenses required by law to be joined therewith that must begin within 6 months of the retrial order, not a trial on a specific information. State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).
The speedy trial act also applies to prosecutions on complaint. State v. Vrtiska, 227 Neb. 600, 418 N.W.2d 758 (1988).
Length of delay, the reason for the delay, the defendant's assertion of the right to speedy trial, and prejudice to the defendant are factors to consider in the balancing process which weighs the conduct of both the State and the defendant. These factors did not need to be considered where a delay of 17 weeks from the return of a mandate to a trial did not constitute an unreasonable delay. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
It is the state's burden to prove by a preponderance of the evidence that there has been compliance with this section. State v. Bennett, 219 Neb. 601, 365 N.W.2d 423 (1985).
Unreasonable delays occurring prior to the filing of an information will be considered in determining whether a defendant has been denied a speedy trial. State v. Gingrich, 211 Neb. 786, 320 N.W.2d 445 (1982).
Under time schedule of this case, defendant was not denied his constitutional or statutory right to a speedy trial. State v. Clouse, 195 Neb. 671, 240 N.W.2d 36 (1976).
Although statutory requirements for speedy trial refer only to indictments and informations, the references held to include complaints. State v. Stevens, 189 Neb. 487, 203 N.W.2d 499 (1973).
After a mistrial has been granted, the filing of a plea in bar tolls the speedy trial clock from the date of the initial filing until final disposition; such tolling would include the time from the district court's decision on the motion through the filing of the mandate on remand if any interlocutory appeal is taken. State v. Ramos, 31 Neb. App. 434, 981 N.W.2d 612 (2022).
The statutory speedy trial rights of instate prisoners are governed by sections 29-3801 to 29-3809, and the procedure under this section does not apply to instate prisoners. State v. LeFever, 30 Neb. App. 562, 970 N.W.2d 792 (2022).
The phrase "period of delay," as used in subsection (4) of this section, is synonymous with the phrase "period of time." State v. Fioramonti, 22 Neb. App. 52, 847 N.W.2d 95 (2014).
As a general rule, a trial court's determination as to whether charges should be dismissed on statutory speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012).
A plea agreement not entered into on the record before any court or tribunal, but, rather, made during private negotiations between the parties, is not a "proceeding" within the meaning of subsection (4)(a) of this section. State v. Vasquez, 16 Neb. App. 406, 744 N.W.2d 500 (2008).
Because a transcript of a previous court proceeding is something to which a defendant would normally be entitled as a matter of right and because a praecipe is simply a directive to the court reporter to prepare such official transcript, the time period while the reporter prepares the transcript is simply trial preparation and does not automatically become a period of delay under this section. State v. Feldhacker, 11 Neb. App. 872, 663 N.W.2d 143 (2003).
Under subsection (4) of this section, the court may grant a prosecutor's oral motion for continuance upon oral statements of the prosecutor where the defense does not object to the procedure and where facts as stated by the prosecutor would be sufficient had they been sworn. State v. Roundtree, 11 Neb. App. 628, 658 N.W.2d 308 (2003).
There is no reasonableness inquiry required with regard to excludable periods that properly fall under this section because such periods are automatically excluded in computing the time for trial. State v. Feldhacker, 11 Neb. App. 608, 657 N.W.2d 655 (2003).
Where a defendant moves for discharge on denial of speedy trial grounds and the record affirmatively shows that 6 months has not elapsed between the filing of the information and the defendant's motion, the burden to show a denial of the right to a speedy trial is then placed on the defendant. State v. Bassette, 6 Neb. App. 192, 571 N.W.2d 133 (1997).
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.
Annotations
1. Discharge
2. Miscellaneous
1. Discharge
The power of the trial court to rule on a motion for discharge is not bound in any way by its prior interlocutory rulings. State v. Nelson, 313 Neb. 464, 984 N.W.2d 620 (2023).
If a trial court fails to include the computation as required by State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009), in its order on a motion for absolute discharge, the appeal will be summarily remanded to the trial court so that it can prepare the required computation. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).
When ruling on a motion for absolute discharge pursuant to this section, the trial court shall make specific findings of each period of delay excludable under section 29-1207(4)(a) to (e), in addition to the findings under section 29-1207(4)(f). Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Lintz, 298 Neb. 103, 902 N.W.2d 683 (2017).
Effective March 9, 2009, when ruling on a motion for absolute discharge pursuant to this section, the trial court shall make specific findings of each period of delay excludable under section 29-1207(4)(a) to (e), in addition to the findings under section 29-1207(4)(f). Such findings shall include the date and nature of the proceedings, circumstances, or rulings which initiated and concluded each excludable period; the number of days composing each excludable period; and the number of days remaining in which the defendant may be brought to trial after taking into consideration all excludable periods. State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
To obtain absolute discharge under this section, a defendant is not required to show prejudice sustained as the result of failure to bring the defendant to trial within 6 months in accordance with subsection (2) of section 29-1207. State v. Knudtson, 262 Neb. 917, 636 N.W.2d 379 (2001).
To avoid a defendant's absolute discharge from an offense charged, as dictated by this section, the State must prove by a preponderance of the evidence the existence of a period of time which is authorized by subsection (4) of section 29-1207 to be excluded in computing the time for commencement of the defendant's trial. State v. French, 262 Neb. 664, 633 N.W.2d 908 (2001).
Where a motion to discharge on speedy trial grounds is submitted to a trial court, that motion is inferentially denied where the trial court proceeds to trial without expressly ruling on the motion. State v. Ward, 257 Neb. 377, 597 N.W.2d 614 (1999).
Resolution of a nonfrivolous motion to discharge pursuant to this section is a ruling affecting a substantial right made in a special proceeding and is therefore final and appealable. State v. Kinser, 256 Neb. 56, 588 N.W.2d 794 (1999).
Per this section, a motion to discharge for lack of a speedy trial is a final, appealable order pursuant to section 25-1912(1). State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997).
The primary burden to bring the accused person to trial within the time provided by law is upon the State, and failure to do so entitles defendant to an absolute discharge. State v. Richter, 240 Neb. 223, 481 N.W.2d 200 (1992).
To avoid a defendant's absolute discharge from an offense charged, as dictated by this section, the State, by a preponderance of evidence, must prove existence of a time period to be excluded under section 29-1207(4). State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).
To avoid a defendant's absolute discharge from an offense charged, the State, by a preponderance of evidence, must prove existence of a period of time which is authorized by section 29-1207(4) to be excluded in computing the time for commencement of the defendant's trial. State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987).
The primary burden is upon the state to bring the accused person to trial within the time provided by law, and if he is not brought to trial within that time, he is entitled to an absolute discharge from the offense alleged in the absence of an express waiver or waiver as provided by statute. State v. Beck, 212 Neb. 701, 325 N.W.2d 148 (1982).
Where trial not commenced within six months of filing the information, upon motion for discharge, burden is on the state to prove one or more of the excluded periods is applicable, or defendant is entitled to an absolute discharge. State v. Hankins, 200 Neb. 69, 262 N.W.2d 197 (1978).
The primary burden is upon the state to bring accused to trial within time provided by law and if it does not he is entitled to discharge in absence of express waiver or waiver as provided by statute. State v. Brown, 189 Neb. 297, 202 N.W.2d 585 (1972); State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
If a defendant is not brought to trial before the running of the statutory speedy trial time period, as extended by excludable periods, he or she shall be entitled to his or her absolute discharge. State v. Henshaw, 19 Neb. App. 663, 812 N.W.2d 913 (2012); State v. Mortensen, 19 Neb. App. 220, 809 N.W.2d 793 (2011).
The denial of a motion to discharge is an appealable order from which an appeal must be taken within 30 days. State v. Erb, 6 Neb. App. 672, 576 N.W.2d 839 (1998).
2. Miscellaneous
The speedy trial statutes apply to prosecutions on complaint and of city ordinance violations. State v. Williams, 313 Neb. 981, 987 N.W.2d 613 (2023).
A defendant's appeal of a final order denying a pretrial motion for absolute discharge on statutory speedy trial grounds did not result in appellate jurisdiction to review a nonfinal order that denied the motion on constitutional speedy trial grounds. State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
Failure of defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere is a waiver of right to speedy trial. State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974).
Absolute preference to trial of criminal cases is not required. State v. Watkins, 190 Neb. 450, 209 N.W.2d 184 (1973).
Although statutory requirements for speedy trial refer only to indictments and informations, the references held to include complaints. State v. Stevens, 189 Neb. 487, 203 N.W.2d 499 (1973).
Two counts of an amended information, which were the same as counts found in the original information, were required to be dismissed under this section, but a new count was not affected, because 6 months had not passed since that charge had been filed. State v. Thompson, 10 Neb. App. 69, 624 N.W.2d 657 (2001).
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.
Annotations
A defendant waives any objection on the basis of a violation of the right to a speedy trial when he or she does not file a motion to discharge before trial begins. State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007).
It is incumbent upon defendant and his counsel to file a timely motion for discharge in order to avoid the waiver provided for by this section. State v. Kearns, 245 Neb. 728, 514 N.W.2d 844 (1994).
As long as a defendant was properly advised of his rights, by either counsel or the court, by knowingly, intelligently, and voluntarily pleading guilty, the defendant waives his statutory right to a speedy trial. State v. McNitt, 216 Neb. 837, 346 N.W.2d 259 (1984).
It was not the duty of the trial court to suggest to the defendant or his counsel that he file a motion for discharge. State v. Hert, 192 Neb. 751, 224 N.W.2d 188 (1974).
A writ of habeas corpus would not issue to permit collateral attack on a sentence for first degree sexual assault and first degree false imprisonment based on an alleged speedy trial violation that the prisoner waived by failing to file a motion for discharge. Jones v. Nebraska Dept. of Corr. Servs., 21 Neb. App. 206, 838 N.W.2d 51 (2013).
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
Change of venue, criminal case pending in county with population of four thousand or less without adequate facilities for jury trials, see section 25-412.01.
Trial, agreements under Interlocal Cooperation Act, see section 25-412.03.
Annotations
1. Venue of offense
2. Change of venue
3. Miscellaneous
1. Venue of offense
A criminal defendant has a right to be tried in the county in which the criminal offense is alleged to have been committed. In re Interest of Leo L. II, 258 Neb. 877, 606 N.W.2d 783 (2000).
The right to be tried in the county in which the criminal offense is alleged to have been committed is secured by statute rather than by the federal or state constitution. When a criminal defendant does not object at trial to holding the trial in a county other than the county in which the criminal offense is alleged to have been committed, the defendant waives his or her objection to the statutorily designated trial provision in this section. State v. Meers, 257 Neb. 398, 598 N.W.2d 435 (1999).
Venue may be proven like any fact, by testimony or by conclusion reached as the only logical inference under the facts. State v. Liberator, 197 Neb. 857, 251 N.W.2d 709 (1977).
Where defendant resisted officer in execution of his office on county line road, prosecution could be in either of the counties divided by the road. State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975).
Trial of offense of failing to support child was properly held in county where child resided. State ex rel. Brito v. Warrick, 176 Neb. 211, 125 N.W.2d 545 (1964).
Criminal cases must be tried in county where crime was committed, or in county to which change of venue is taken. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
Venue of an offense may be proven like any other fact. Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955).
Where defendant had entered a plea of guilty, he could not on error proceedings retry issue of fact as to venue of offense. Clark v. State, 150 Neb. 494, 34 N.W.2d 877 (1948).
Where an offense consists of a series of acts, prosecution may be had in any county where any one of the acts took place. Yost v. State, 149 Neb. 584, 31 N.W.2d 538 (1948).
Where a person in one county procures the commission of a crime in another through the agency of an innocent person, he is subject to prosecution in the county where the acts were done by the agent. Robeen v. State, 144 Neb. 910, 15 N.W.2d 69 (1944).
Conviction was sustained as not violative of this section. Forney v. State, 123 Neb. 179, 242 N.W. 441 (1932).
County in which matrimonial domicile of husband and wife is located fixes venue in action for abandonment. Preston v. State, 106 Neb. 848, 184 N.W. 925 (1921).
2. Change of venue
A change of venue is mandated when a defendant cannot receive a fair and impartial trial in the county where the offense was committed. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
An appellate court evaluates a court's change of venue ruling under eight factors unless the defendant claims that the pretrial publicity was so pervasive and prejudicial that the appellate court should presume the unconstitutional partiality of the prospective jurors. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
The Nebraska Supreme Court has recognized two circumstances when the prospective jurors- claims of impartiality can be presumptively unreliable: (1) pervasive pretrial publicity that is sufficiently inflammatory can create a presumption of prejudice in a community and require a change of venue to a location untainted by the publicity, and (2) if most of the prospective jurors admit to a disqualifying prejudice, the reliability of the others- claims of impartiality is called into question. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
A court must evaluate several factors in determining whether a defendant has met the burden of showing that pretrial publicity has made it impossible to secure a fair trial and impartial jury. These factors include (1) the nature of the publicity, (2) the degree to which the publicity has circulated throughout the community, (3) the degree to which the venue could be changed, (4) the length of time between the dissemination of the publicity complained of and the date of the trial, (5) the care exercised and ease encountered in the selection of the jury, (6) the number of challenges exercised during voir dire, (7) the severity of the offenses charged, and (8) the size of the area from which the venire was drawn. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
Pretrial publicity regarding a retrial after a conviction may in some cases present more difficult venue issues than those of an initial trial, but a determination of whether a change in venue is necessary remains within the discretion of the trial court. State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996).
Trial court does not abuse its discretion in denying defendant's motion for change of venue when there is no evidence that jury could not be fair and impartial after viewing news reports which reference a polygraph examination. State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995).
A party seeking change of venue must show that publicity has made it impossible to secure a fair and impartial jury. The factors to be evaluated in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire was drawn. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
The factors to be considered in determining whether this section authorizes a change in venue due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated in the areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn. A trial court's ruling on a motion for a change of venue under this section will not be disturbed on appeal absent an abuse of discretion. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
The factors to be evaluated in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity has circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn. State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987).
Showing made was insufficient to require change of venue. Onstott v. State, 156 Neb. 55, 54 N.W.2d 380 (1952); Medley v. State, 156 Neb. 25, 54 N.W.2d 233 (1952).
Motion for change of venue was properly denied in first degree murder case. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Application for change of venue is addressed to sound discretion of trial court; ruling will not be disturbed unless abuse of discretion is shown. Simmons v. State, 111 Neb. 644, 197 N.W. 398 (1924); Clarence v. State, 89 Neb. 762, 132 N.W. 395 (1911); Sweet v. State, 75 Neb. 263, 106 N.W. 31 (1905); Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905).
Change of venue on application of accused is waiver of his right to trial in county where crime is charged. Kennison v. State, 83 Neb. 391, 119 N.W. 768 (1909).
Ruling of district court upon motion supported by affidavits will not be disturbed unless clearly without support of sufficient evidence. Lindsay v. State, 46 Neb. 177, 64 N.W. 716 (1895).
Change can only be granted by court of county where offense was committed. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889).
Party seeking change of venue must show by best evidence that can be obtained bias and prejudice against him. Simmerman v. State, 16 Neb. 615, 21 N.W. 387 (1884).
On showing made, change of venue should have been granted. Richmond v. State, 16 Neb. 388, 20 N.W. 282 (1884).
Motion for change to particular county is bad, and may be overruled. Olive v. State, 11 Neb. 1, 7 N.W. 444 (1880).
Requirements of this section have no application to receiving plea of guilty and imposing sentence in chambers. Canada v. Jones, 170 F.2d 606 (8th Cir. 1948).
3. Miscellaneous
The State has the burden to prove proper venue beyond a reasonable doubt in the absence of defendant's waiver. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
Voir dire examination provides the best opportunity to determine whether venue should be changed. Mere jury exposure to news accounts of a crime does not presumptively deprive a criminal defendant of due process; rather, to warrant a change of venue, a defendant must show the existence of pervasive misleading pretrial publicity. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
Voir dire examination is the better, more probative forum for ascertaining the existence of community and individual prejudice or hostility toward the accused than is a public opinion poll. State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).
A defendant may waive the issue of statutorily designated venue by requesting a change of venue in accordance with this section, but does not waive the venue issue by failing to raise venue before or during trial. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).
A motion to change venue under this provision is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof. An abuse occurs where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial. State v. Jacobs, 226 Neb. 184, 410 N.W.2d 468 (1987).
Under facts in this case it was not error to deny motions grounded on pretrial publicity for change of venue and continuance, sequestration of jury during voir dire and trial, and for admission of a photograph which merely illustrated testimony received without objection. State v. Ell, 196 Neb. 800, 246 N.W.2d 594 (1976).
Section considered in reviewing order restricting publication of certain information before trial of murder case. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975).
Appeal by a county in criminal case from order allowing attorney's fees is not authorized as the district court merely determines the reasonable charges for which claim may be filed with the county board. State v. Berry, 192 Neb. 826, 224 N.W.2d 767 (1975).
Where state and local purposes are commingled, the crucial issue turns upon a determination of whether the controlling purposes are state or local. Counties may be required to pay attorney's fees for one appointed to defend an indigent defendant. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).
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
Two jury instructions read in conjunction with one another correctly instructed the jury that the offenses must have been "committed in this state." Taken as a whole, the instructions as to venue did not relieve the State of its burden to prove the acts were committed in Nebraska, and the defendant was not prejudiced as to necessitate a reversal on these grounds. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
Although another county was the situs of the felonious sexual assault and where victim's clothing was found, venue was proper where sufficient circumstantial evidence existed from which a fact finder could reasonably conclude that the victim was originally abducted in county where trial was held. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
A motion for change of venue filed pursuant to this statute is addressed to the sound discretion of the trial court, whose ruling will not be disturbed on appeal absent a clear abuse of that discretion. State v. Kern, 224 Neb. 177, 397 N.W.2d 23 (1986).
Where defendant resisted officer in execution of his office on county line road, prosecution could be in either of the counties divided by the road. State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975).
This section permits trial either in county where offense was 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 accused in instigating, procuring, promoting, or aiding in the commission of the offense. State v. Garza, 191 Neb. 118, 214 N.W.2d 30 (1974).
District court for Douglas County had jurisdiction of rape case where prisoner allegedly committed acts in county in furtherance of offense and prosecutrix was brought back into county after alleged rape. Garza v. Wolff, 528 F.2d 208 (8th Cir. 1975).
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
Two jury instructions read in conjunction with one another correctly instructed the jury that the offenses must have been "committed in this state." Taken as a whole, the instructions as to venue did not relieve the State of its burden to prove the acts were committed in Nebraska, and the defendant was not prejudiced as to necessitate a reversal on these grounds. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
Venue confirmed in county where auto trip originated and ended, during which sexual assault occurred. State v. Tiff, 199 Neb. 519, 260 N.W.2d 296 (1977).
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.
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
Counties are obligated to pay costs and expenses of prosecutions, including fees and expenses of attorneys appointed to represent indigent defendants in criminal cases, and there is no requirement that a property tax be levied therefor. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).
Transcript of proceedings is transmitted to adjoining county upon change of venue. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
County from which change of venue is taken is not liable for fees of jurors of regular panel not sitting on trial of case. Dawes County v. Sioux County, 77 Neb. 567, 110 N.W. 378 (1906).
Filing of transcript and original indictment of information in office of clerk of court to which change is granted is jurisdictional. Barr v. State, 45 Neb. 458, 63 N.W. 856 (1895).
Compensation for assistant to county attorney is to be paid by county where crime was committed. Fuller v. Madison County, 33 Neb. 422, 50 N.W. 255 (1891).
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
Upon change of venue, transfer of accused to jail of county where he is to be tried is provided. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
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
Upon change of venue, recognizance may be required of witnesses to appear before the court in which the accused is to be tried. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
Court cannot create indebtedness against county by appointing bailiff to detain witness. Shaw v. Holt County, 88 Neb. 348, 129 N.W. 552 (1911).
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
Where an offense is committed on a county line, prosecution may be in either of the counties divided by such line. State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975).
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
Venue of a homicide may be established by circumstantial evidence. Hawkins v. State, 60 Neb. 380, 83 N.W. 198 (1900).
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
If person has stolen property in the county, proof of act of receiving is not necessary to establish proper venue. State v. McKee, 183 Neb. 754, 163 N.W.2d 434 (1969).
This section does not authorize prosecution for burglary in another county than where the crime was committed. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
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
The statutory scheme which requires convening a grand jury where a person has died while being apprehended by or while in custody of a law enforcement officer removes the county attorney from the process, and the county attorney has no access to grand jury records. The failure of the grand jury to return an indictment does not prevent the county attorney from proceeding independently. It is not necessary to convene a second grand jury, but, rather, the county attorney may proceed by filing a complaint or information in the district court. In re Grand Jury of Douglas Cty., 263 Neb. 981, 644 N.W.2d 858 (2002).
District court may order grand jury hereunder. Pinn v. State, 107 Neb. 417, 186 N.W. 544 (1922).
Under prior law, grand jury was required to be summoned at first term every year unless otherwise directed in writing by court or judge thereof. Krause v. State, 88 Neb. 473, 129 N.W. 1020 (1911).
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.
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
This section does not allow the district court to enjoin a county attorney from proceeding with a separate preliminary hearing during the time that the grand jury is proceeding on the same matter. In re Grand Jury of Douglas Cty., 263 Neb. 981, 644 N.W.2d 858 (2002).
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
Oath construed. Krause v. State, 88 Neb. 473, 129 N.W. 1020 (1911).
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
Wide discretion is allowed judge in charge, which appellate court will not control. Clair v. State, 40 Neb. 534, 59 N.W. 118 (1894).
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
"All offenses" embrace misdemeanors. Nelson v. State, 115 Neb. 26, 211 N.W. 175 (1926).
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.
Annotations
A hearing on a motion concerning the public disclosure of grand jury documents is a special proceeding. In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).
An order regarding the public disclosure of grand jury documents is made during a special proceeding. In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).
In a special proceeding, an order is final and appealable if it affects a substantial right of the aggrieved party. In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019).
Where the State violated this section by providing witnesses copies of their grand jury testimony without a court order, violation was subject to harmless error review, because it was a trial error instead of a structural error. State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
Court approval for the release of grand jury proceedings when there has been a "no true bill" is limited by statute to witnesses and to other courts. In re Grand Jury of Lancaster Cty., 269 Neb. 436, 693 N.W.2d 285 (2005).
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
Oath of secrecy of grand jury deliberations is not prohibited. State v. Abboud, 181 Neb. 84, 147 N.W.2d 152 (1966).
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.
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.
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
Indictment must be endorsed and endorsement subscribed by foreman. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
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
Jails, duty of grand juries and county boards to inspect, see section 47-108 et seq.
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
Any error in a ruling on a motion to dismiss under subsection (3) of this section based on the sufficiency of evidence before a grand jury is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence. State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).
This section requires the clerk of the trial court to endorse upon an indictment the date of its filing and to enter the case upon the docket. State v. Muse, 15 Neb. App. 13, 721 N.W.2d 661 (2006).
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
Trial of all indictments shall be had in district court for county in which same were found, and includes indictments for misdemeanors. Nelson v. State, 115 Neb. 26, 211 N.W. 175 (1926).
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.
Annotations
Court approval for the release of grand jury proceedings when there has been a "no true bill" is limited by statute to witnesses and to other courts. In re Grand Jury of Lancaster Cty., 269 Neb. 436, 693 N.W.2d 285 (2005).
Grand jury's report was not authorized for publication and was ordered expunged from the records of the district court. In re Grand Jury of Douglas Cty., 244 Neb. 798, 509 N.W.2d 212 (1993).
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
Underlying offense committed because of a person's status or association with a person of a certain status, inclusion of allegations, see section 28-112.
Annotations
1. Sufficiency of indictment
2. Irregularities
3. Miscellaneous
1. Sufficiency of indictment
Neither the value of the property stolen nor the time at which it was appropriated are essential elements of the crime of theft. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989).
An information charging an attempt to commit "robbery" is sufficient though it omits "with intent to steal", and allowing amendment to add those words during trial is not prejudicial error. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982).
Permitting amendment as to date of prior felony alleged in information in habitual criminal charge was not error. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
An amendment adding an omitted allegation of a substantive element of the offense sought to be charged does not change the offense and may be permitted before verdict or findings in the discretion of the district judge. State v. Gascoigen, 191 Neb. 15, 213 N.W.2d 452 (1973).
There was no defect or imperfection in indictment which prejudiced the substantial rights of the defendant. State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966).
In criminal prosecutions, a variance between an instrument alleged in the information and the evidence offered in proof thereof is not fatal, unless material to the merits of the case or prejudicial to defendant. Balis v. State, 137 Neb. 835, 291 N.W. 477 (1940).
In a criminal prosecution for picketing, failure to allege the essential elements of the statutory crime prejudices the substantial rights of the defendant. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
In prosecution for stealing cattle, it is not necessary to allege or prove the value of the property. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936).
Immaterial variance between purported maker's name as it appeared in information and in the forged instrument received in evidence is not prejudicial, especially where defendant testified that it was executed in his presence. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
Information charging murder in first degree, stating name and authority of qualified informer, setting out elements of offense in simple, concise and direct language following statute and form approved by Supreme Court was sufficient. Hansen v. State, 121 Neb. 169, 236 N.W. 329 (1931).
Inaccurate statement in information of exact date of embezzlement does not affect proceedings. Gorton v. State, 117 Neb. 556, 221 N.W. 689 (1928).
Information must contain distinct allegation of each essential element of crime as defined by law creating it; must be in language of statute or its equivalent. Knothe v. State, 115 Neb. 119, 211 N.W. 619 (1926).
Information alleging all facts or elements necessary to constitute offense described in statute and intended to be punished is sufficient. McKenzie v. State, 113 Neb. 576, 204 N.W. 60 (1925).
In an indictment, causal connection between false pretenses and obtaining of note must be positively and explicitly stated. Anthony v. State, 109 Neb. 608, 192 N.W. 206 (1923).
It is unnecessary to specify portion of body on which wound is inflicted; words "upon the body" are sufficient. Morris v. State, 109 Neb. 412, 191 N.W. 717 (1922).
Where crime may be committed by several methods, indictment may charge commission by all, provided they are not inconsistent or repugnant. Brown v. State, 107 Neb. 120, 185 N.W. 344 (1921).
Where statute states elements of crime, it is sufficient to describe such crime in language of statute. Philbrick v. State, 105 Neb. 120, 179 N.W. 398 (1920); Goff v. State, 89 Neb. 287, 131 N.W. 213 (1911).
Information fairly and reasonably charging elements of crime of murder is sufficient. Blazka v. State, 105 Neb. 13, 178 N.W. 832 (1920).
Where time and place are stated in first count, allegations in subsequent counts that offense was then and there committed, were sufficient. Grier v. State, 81 Neb. 129, 115 N.W. 551 (1908).
Indictment must charge explicitly all essentials of the offense. Hase v. State, 74 Neb. 493, 105 N.W. 253 (1905).
Word "feloniously" serves no practical purposes where all essential elements of felony are charged. Richards v. State, 65 Neb. 808, 91 N.W. 878 (1902).
In an indictment or information for larceny, description of property should enable court to determine that the property is the subject of larceny, and advise accused with reasonable certainty of the property meant. Barnes v. State, 40 Neb. 545, 59 N.W. 125 (1894).
Several offenses of same kind for misdemeanor may be joined. Burrell v. State, 25 Neb. 581, 41 N.W. 399 (1889).
Indictment for murder must aver purpose to kill. Schaffer v. State, 22 Neb. 557, 35 N.W. 384 (1887).
It is not necessary that indictment use exact words of statute; words equivalent in meaning are sufficient. Kirk v. Bowling, 20 Neb. 260, 29 N.W. 928 (1886); Whitman v. State, 17 Neb. 224, 22 N.W. 459 (1885).
Indictment was not objectionable for duplicity. Denman v. State, 15 Neb. 138, 17 N.W. 347 (1883).
Indictment may contain count for murder in first degree, with one in second degree, and for manslaughter. Baldwin v. State, 12 Neb. 61, 10 N.W. 463 (1881).
Where information is in two counts, charging shooting with intent to kill and with intent to wound, state will not be compelled to elect. Candy v. State, 8 Neb. 482, 1 N.W. 454 (1879).
Information is not bad by reason of omission of formal conclusion. Smith v. State, 4 Neb. 277 (1876).
2. Irregularities
Irregularity in charge of contempt of court was controlled by this section. Cornett v. State, 155 Neb. 766, 53 N.W.2d 543 (1952).
Information is not invalidated by allegations that defendant had been convicted of chicken stealing in another state and committed to penitentiary in that state. Wiese v. State, 138 Neb. 685, 294 N.W. 482 (1940).
Indictment was not invalidated by unnecessary recitals. Kirchman v. State, 122 Neb. 624, 241 N.W. 100 (1932).
Where use of disjunctive does not result in prosecution for distinct or separate crimes, objection thereto cannot be successfully urged on appeal. Smith v. State, 109 Neb. 579, 191 N.W. 687 (1922).
It is improper to join misdemeanor and felony where former is not included offense. Longsine v. State, 105 Neb. 428, 181 N.W. 175 (1920).
Errors complained of did not tend to prejudice the substantial rights of defendant upon the merits. Bloom v. State, 95 Neb. 710, 146 N.W. 965 (1914).
3. Miscellaneous
This section is equally applicable to any formal charge on which a prosecution is based, including an indictment, information, or complaint. State v. Wehrle, 223 Neb. 928, 395 N.W.2d 142 (1986).
Where crime charged was assault with intent to commit rape by force, allegation in information as to age of complaining witness did not prejudice defendant. Frank v. State, 150 Neb. 745, 35 N.W.2d 816 (1949).
Name of witness to be called on trial need not be endorsed on indictment. Donnelly v. State, 86 Neb. 345, 125 N.W. 618 (1910).
State should be compelled to elect on which count it will proceed where two distinct offenses are charged. State v. Lawrence, 19 Neb. 307, 27 N.W. 126 (1886).
Time of illegal sale of liquor is only material to bring case within statute of limitations. Brown v. State, 16 Neb. 658, 21 N.W. 454 (1884).
Statement of exact time of commission of an offense is not regarded as a substantive element of the charge. Huffman v. Sigler, 352 F.2d 370 (8th Cir. 1965).
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
1. Sufficiency of complaint
2. Fatal variance
1. Sufficiency of complaint
Information charged offenses in language of statute; reference to complaining witnesses as three teenage girls, without using their names did not deceive, mislead, nor prejudice defendants in any particular. Nicholson v. Sigler, 183 Neb. 24, 157 N.W.2d 872 (1968).
In prosecution for sodomy amendments to information as to name of complaining witness and as to date of crime, time not being an ingredient, were not prejudicial. Sledge v. State, 142 Neb. 350, 6 N.W.2d 76 (1942).
Immaterial variance between purported maker's name as set out in information charging forgery and as it appeared in note offered in evidence was not ground for reversal. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
"Adolph" and "Adolf" are idem sonans, when both are used as Christian names in information. Bunge v. State, 87 Neb. 557, 127 N.W. 899 (1910).
In prosecution for malicious killing of animals, difference between information and proof as to number of animals killed and date of killing was not a fatal variance. Carson v. State, 80 Neb. 619, 114 N.W. 938 (1908).
On charge of forgery of receipt which referred to and incorporated another instrument, both must be set forth correctly. Sutton v. State, 58 Neb. 567, 79 N.W. 154 (1899).
Where time is not an ingredient of the crime, variance in proof is not fatal, if within statute of limitations. Palin v. State, 38 Neb. 862, 57 N.W. 743 (1894).
There was no variance between information charging crime was committed with bludgeon and proof showing club or bolt. Long v. State, 23 Neb. 33, 36 N.W. 310 (1888).
2. Fatal variance
Variance in names to be fatal must be such as to be material to merits of case or prejudicial to defendant. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927); Goldsberry v. State, 66 Neb. 312, 92 N.W. 906 (1902).
There was a fatal variance where information charged false entry in an account of an individual with bank, and proof showed account with person as public official. Williams v. State, 51 Neb. 630, 71 N.W. 313 (1897).
In prosecution for perjury, variance between information and proof as to name of witness was fatal. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889).
Where information charged obtaining money by false pretenses through use of draft, there was a fatal variance where instrument offered in evidence was not payable in money. Prehm v. State, 22 Neb. 673, 36 N.W. 295 (1888).
On indictment for forging of note, there was a fatal variance where information charged interest was payable semiannually and note offered in evidence called for interest payable annually. Haslip v. State, 10 Neb. 590, 7 N.W. 331 (1880).
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
Variance between information charging forgery and note alleged to be forged was not fatal. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
Where information charged forgery of checks, it was proper, but not necessary, to set forth a copy of the endorsements on the back of the checks. Cooper v. State, 123 Neb. 605, 243 N.W. 837 (1932).
On information for forgery, variance not prejudicial to rights of defendant was immaterial. Burlingim v. State, 61 Neb. 276, 85 N.W. 76 (1901).
Forgery and fraudulent uttering of one instrument by same person is but one crime. Griffen v. State, 46 Neb. 282, 64 N.W. 966 (1895); In re Walsh, 37 Neb. 454, 55 N.W. 1075 (1893).
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
In prosecution for uttering forged check, it was not necessary to allege intent to defraud any particular person. Benedict v. State, 166 Neb. 295, 89 N.W.2d 82 (1958).
Omission from information of name of party defrauded does not render information insufficient. Bullington v. State, 123 Neb. 432, 243 N.W. 273 (1932).
On indictment for forgery, it is sufficient to allege intent to defraud without specifying any particular person. Davis v. State, 58 Neb. 465, 78 N.W. 930 (1899).
Information is sufficient if it charges intent to defraud in general terms. Morearty v. State, 46 Neb. 652, 65 N.W. 784 (1896).
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
Allegation of ownership is not an essential element in charging the crime of burglary. Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946).
When property of several partners is stolen, information is sufficient if it alleges property belongs to any one or more of such partners. Brown v. State, 103 Neb. 271, 171 N.W. 906 (1919).
In charging offense upon property of several owners, it is sufficient to allege ownership in one or more. Brinegar v. State, 82 Neb. 558, 118 N.W. 475 (1908).
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
Different felonies of same grade, subject to same punishment, may be charged in separate counts. Sheppard v. State, 104 Neb. 709, 178 N.W. 616 (1920).
Prosecution for receiving stolen property may be had in this state although property was stolen in another state. In prosecution for receiving stolen property, it is necessary to allege and prove that defendant knew that property was stolen. Egan v. State, 97 Neb. 731, 151 N.W. 237 (1915).
Information for larceny may contain also a count for receiving the stolen property. Korab v. State, 93 Neb. 66, 139 N.W. 717 (1913); Brown v. State, 88 Neb. 411, 129 N.W. 545 (1911).
Different criminal acts, part of same transaction, may be charged in same indictment. Lawhead v. State, 46 Neb. 607, 65 N.W. 779 (1896).
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
This section excuses in indictment particularity in description as to money. Bartley v. State, 55 Neb. 294, 75 N.W. 832 (1898).
Averment as to character of money stolen is surplusage. Tracey v. State, 46 Neb. 361, 64 N.W. 1069 (1895).
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
To sustain information charging perjury, alleged false testimony must be in respect to matter material in action in which given. Shevalier v. State, 85 Neb. 366, 123 N.W. 424 (1909).
Applied to all cases where grand juries were required before act took effect. Jones v. State, 18 Neb. 401, 25 N.W. 527 (1885).
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
Information drawn in language of statute is sufficient to charge manslaughter arising from leaving motor vehicle illegally parked on highway. Vaca v. State, 150 Neb. 516, 34 N.W.2d 873 (1948).
In charging crime of manslaughter, it is not necessary to set forth the manner or means by which death was caused. Anderson v. State, 150 Neb. 116, 33 N.W.2d 362 (1948).
This section is constitutional, and any information drawn in the language of the statute is sufficient to properly charge the crime. Puckett v. State, 144 Neb. 876, 15 N.W.2d 63 (1944); Cowan v. State, 140 Neb. 837, 2 N.W.2d 111 (1942).
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
1. Prosecution on information
2. Constitutionality
3. Miscellaneous
1. Prosecution on information
Prosecution on information is authorized. Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353 (1945).
Prosecution upon information verified and filed by acting county attorney is good against attack by habeas corpus. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
District court may try misdemeanor charged in information as proper exercise of its original jurisdiction. Nelson v. State, 115 Neb. 26, 211 N.W. 175 (1926).
Prosecution for murder may be by information. Hawkins v. State, 60 Neb. 380, 83 N.W. 198 (1900).
2. Constitutionality
Prosecution on information is not a violation of due process of law clause. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
Prosecution of criminal offenses by information does not violate rule of uniformity required by Constitution. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
This section does not conflict with Fourteenth Amendment. Bolln v. Nebraska, 176 U.S. 83 (1900).
3. Miscellaneous
Indictment by a grand jury is not required in the State of Nebraska. State v. Lehman, 203 Neb. 341, 278 N.W.2d 610 (1979).
Person accused of felony must be charged by information or indictment disclosing nature and cause of accusation. Stowe v. State, 117 Neb. 440, 220 N.W. 826 (1928).
Pendency of former information, for same offense, is no ground for plea in abatement. Roby v. State, 61 Neb. 218, 85 N.W. 61 (1901).
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
1. Information
2. Endorsement of witnesses before trial
3. Endorsement of witnesses during trial
1. Information
The State must endorse a list of witnesses known to it, but it need not highlight a witness' expert status. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
The requirement that the names of the witnesses for the State must be endorsed upon the information has no application to rebuttal witnesses. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
The purpose of this section is to notify the defendant as to witnesses who may testify against him or her and give him or her an opportunity to investigate them. State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).
The purpose of this section is to notify the defendant as to witnesses who may testify against him and give him an opportunity to investigate them. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
To obtain a reversal on the grounds the trial court erred in permitting additional endorsements, the defendant must show he was prejudiced by the additional testimony. State v. Ellis, 223 Neb. 779, 393 N.W.2d 719 (1986).
The purpose of the requirement contained in this section, that the names of witnesses for the prosecution be listed on the information, is to inform the defendant of the names of persons who will testify against him and give him an opportunity to investigate regarding their background and pertinent knowledge. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).
The failure to endorse on the information the names of witnesses called by the state is not grounds for reversal of conviction in absence of prejudice. State v. Keith, 189 Neb. 536, 203 N.W.2d 500 (1973).
Failure to endorse names of witnesses on an information is error, but not necessarily prejudicial error. State v. Adels, 186 Neb. 849, 186 N.W.2d 908 (1971); Nicholson v. Sigler, 183 Neb. 24, 157 N.W.2d 872 (1968).
Information was properly filed in office of clerk of the district court. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261 (1959).
Informations must be filed in county where crime was committed. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).
Prosecution on information is not in violation of state or federal Constitution. Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353 (1945).
While county attorney should file information, defect arising from filing being made by some other person may be waived by failure to move to quash prior to trial. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Information may be made, signed, verified, and filed by deputy county attorney. Thompson v. O'Grady, 137 Neb. 641, 290 N.W. 716 (1940).
Assistant attorney general does not have authority to make and sign information in his own name. Carlsen v. State, 127 Neb. 11, 254 N.W. 744 (1934); Lower v. State, 106 Neb. 666, 184 N.W. 174 (1921).
Information may be filed in vacation in court having jurisdiction of offense. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927).
Information, signed by proper prosecuting officer, must be filed or indictment by grand jury returned, to give jurisdiction. Langford v. State, 114 Neb. 207, 206 N.W. 756 (1925).
In criminal case, it is not essential to validity of information that it show upon face term of court at which filed or that it was filed during term time. Mares v. State, 112 Neb. 619, 200 N.W. 448 (1924).
As matter of right, accused is not entitled to additional copy of information because, with his knowledge, additional names endorsed or amendment in immaterial respect made. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923).
Information can be amended provided the amendment does not change the offense charged. Razee v. State, 73 Neb. 732, 103 N.W. 438 (1905).
Court may compel county attorney to elect upon which count he will rely. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904).
It is unnecessary to obtain leave of court before filing information. Sharp v. State, 61 Neb. 187, 85 N.W. 38 (1901).
Defective indictment may be withdrawn and information filed charging same offense. Alderman v. State, 24 Neb. 97, 38 N.W. 36 (1888).
Witnesses for the state must be listed on the information. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
2. Endorsement of witnesses before trial
Pursuant to this section, a trial court may, in the exercise of its discretion, permit the names of additional witnesses to be endorsed upon an information after the information has been filed when doing so does not prejudice the defendant in the preparation of a defense. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
Requirement that names of state's witnesses be endorsed on the information has no application to rebuttal witnesses. State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977).
Failure to have names of known witnesses endorsed on information was error but not prejudicial. Waite v. State, 169 Neb. 113, 98 N.W.2d 688 (1959).
Endorsing names of witnesses is not required on information charging violation of probation. Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952).
One of purposes of section is to enable defendant's attorney to confer with client and have time to make a good-faith investigation as to facts about witnesses and their connection with case. Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (1947).
Where name of witness was endorsed on information before trial but omitted from copy served on defendant, it is not error for witness to testify, in absence of showing of prejudice, and where no continuance was requested at the time. Allen v. State, 129 Neb. 722, 262 N.W. 675 (1935).
Trial judge has discretion to permit prosecuting attorney to endorse names of additional witnesses on information before trial and where defendant does not request continuance, his rights are not prejudiced. Wilson v. State, 120 Neb. 468, 233 N.W. 461 (1930).
Trial judge, in his discretion, may permit additional witnesses to be endorsed on information, before trial. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923); Wilson v. State, 87 Neb. 638, 128 N.W. 38 (1910); Reed v. State, 75 Neb. 509, 106 N.W. 649 (1906); Fager v. State, 49 Neb. 439, 68 N.W. 611 (1896).
Where name of witness is omitted from copy of information served on defendant, it is not error to permit witness to testify where prejudice is not shown or continuance or postponement of trial is not asked for. Frey v. State, 109 Neb. 483, 191 N.W. 693 (1922).
It is not required that all witnesses whose names are endorsed on information be called. Bloom v. State, 95 Neb. 710, 146 N.W. 965 (1914).
Endorsement of names on information is sufficient, though misspelled in copy. Rownd v. State, 93 Neb. 427, 140 N.W. 790 (1913).
Strictly rebutting testimony may be introduced even though names of witnesses giving it are not endorsed on information. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910); Clements v. State, 80 Neb. 313, 114 N.W. 271 (1907).
"Mrs. Fred Steinberg" and "Mrs. Fred Steenburg" are idem sonans; endorsement was sufficient. Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898).
Endorsement of surname of witness, with initials of Christian name, was sufficient compliance. Basye v. State, 45 Neb. 261, 63 N.W. 811 (1895).
Witnesses for the state must be listed on the information. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
3. Endorsement of witnesses during trial
Trial court's endorsement of additional witness on first day of trial was not an abuse of discretion, as defendant was unable to show how such action prejudiced his trial preparation. State v. Brandon, 240 Neb. 232, 481 N.W.2d 207 (1992).
A failure to endorse on the information the names of witnesses to be called by the State is not grounds for reversal of a conviction in the absence of a showing of prejudice. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978).
In the exercise of its discretion, trial court may permit endorsement of names of witnesses upon information. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Trial court may, in its discretion, permit names of additional witnesses to be endorsed upon information after trial has begun, and defendant cannot complain of error where no prejudice is shown and he did not ask for continuance. McCartney v. State, 129 Neb. 716, 262 N.W. 679 (1935).
It is within discretion of court to permit names of additional witnesses to be endorsed on information after trial has commenced. Barnts v. State, 116 Neb. 363, 217 N.W. 591 (1928); Hutter v. State, 105 Neb. 601, 181 N.W. 552 (1921); Samuels v. State, 101 Neb. 383, 163 N.W. 312 (1917).
District court may permit names of additional witnesses to be endorsed on information during progress of trial. Ridings v. State, 108 Neb. 804, 189 N.W. 372 (1922).
Endorsement of additional witnesses after trial has begun is not error unless prejudicial and continuance asked for. Brunke v. State, 105 Neb. 343, 180 N.W. 560 (1920); Sheppard v. State, 104 Neb. 709, 178 N.W. 616 (1920); Kemplin v. State, 90 Neb. 655, 134 N.W. 275 (1912).
Where rule of court required names to be endorsed within twenty-four hours after discovery, names endorsed later, with permission of court, was not error. Barney v. State, 49 Neb. 515, 68 N.W. 636 (1896).
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
1. Allegations, generally
2. Allegations, specific offenses
3. Verification
1. Allegations, generally
The requirement that a notice of aggravators be filed prior to trial is not applicable to cases in which the pretrial and trial litigation steps have already been completed. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
Separate offenses must be set out in separate counts in an information, but failure is cured by verdict when no objection was made. State v. French, 195 Neb. 88, 236 N.W.2d 832 (1975).
Defense of statute of limitations is equally applicable to prosecution upon information as by indictment. Jacox v. State, 154 Neb. 416, 48 N.W.2d 390 (1951).
Information is defective if it charges commission of offense as subsequent to filing. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).
Averment of matters which are immaterial and unnecessary ingredients of offense is surplusage. Nelson v. State, 86 Neb. 856, 126 N.W. 518 (1910).
Where statute contains an exception, information should negative same, unless affirmative part clearly negatives exception. Holmes v. State, 82 Neb. 406, 118 N.W. 99 (1908).
Race or color of defendant should not be designated unless required by statute. Harris v. State, 80 Neb. 195, 114 N.W. 168 (1907).
Information must charge every essential element of the offense. Herbes v. State, 79 Neb. 832, 113 N.W. 530 (1907); Moline v. State, 67 Neb. 164, 93 N.W. 228 (1903); O'Connor v. State, 46 Neb. 157, 64 N.W. 719 (1895).
Information must be positive and not on belief. Steinkuhler v. State, 77 Neb. 331, 109 N.W. 395 (1906).
Precise words of statute are not necessary in charging offense; words identical in meaning are sufficient. Higbee v. State, 74 Neb. 331, 104 N.W. 748 (1905); Smith v. State, 72 Neb. 345, 100 N.W. 806 (1904).
Word "feloniously" is not necessary in information charging all essential elements of felony. Reno v. State, 69 Neb. 391, 95 N.W. 1042 (1903).
Information is vulnerable on demurrer if offense is not charged in positive terms. Sothman v. State, 66 Neb. 302, 92 N.W. 303 (1902).
Information need not negative exceptions of statute which are not descriptive of offense. Sofield v. State, 61 Neb. 600, 85 N.W. 840 (1901).
When there is identity of names in two counts, presumption is that both refer to same person. Dunn v. State, 58 Neb. 807, 79 N.W. 719 (1899).
Information will sustain conviction of lower offense involved in that charged. Mulloy v. State, 58 Neb. 204, 78 N.W. 525 (1899).
Information must charge same offense as complaint or substantially the same. Mills v. State, 53 Neb. 263, 73 N.W. 761 (1898).
It is not necessary to conclude, "against the peace and dignity of the state." Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897).
Charging offense with unnecessary particularity is not fatally defective. State v. Kendall, 38 Neb. 817, 57 N.W. 525 (1894).
Negative averment of the matter of a proviso is not required unless it enters into and becomes a part of the description of the offense. Gee Wo v. State, 36 Neb. 241, 54 N.W. 513 (1893).
An unnecessary amendment is not prejudicial to defendant. Braithwaite v. State, 28 Neb. 832, 45 N.W. 247 (1890).
Information must allege crime was committed within jurisdiction of court. McCoy v. State, 22 Neb. 418, 35 N.W. 202 (1887).
2. Allegations, specific offenses
An information charging an attempt to commit "robbery" is sufficient though it omits "with intent to steal", and allowing amendment to add those words during trial is not prejudicial error. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982).
Failure to allege the result of the acts complained of in prosecution for picketing renders the information not precise or complete enough to comply with this section. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
Charge in language of statute is sufficient. Goff v. State, 89 Neb. 287, 131 N.W. 213 (1911).
Omission of word "maliciously" from information for burglary was immaterial error. Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910).
It is sufficient, as to ownership, to allege that money or property embezzled belonged to an estate. Hendee v. State, 80 Neb. 80, 113 N.W. 1050 (1907).
Information charging embezzlement from a city was sufficient. Bode v. State, 80 Neb. 74, 113 N.W. 996 (1907).
In prosecution for illegal fencing of highway, information failing to charge road was in common use will not support a conviction. Gilbert v. State, 78 Neb. 636, 111 N.W. 377 (1907).
In prosecution for attempt to corrupt witness, necessary allegations of information stated. Gandy v. State, 77 Neb. 782, 110 N.W. 862 (1906).
Requirements of information charging rape stated. Hubert v. State, 74 Neb. 220, 104 N.W. 276 (1905), motion for rehearing denied 74 Neb. 226, 106 N.W. 774 (1906).
Information for murder in first degree is set out and held sufficient to sustain conviction. Barker v. State, 73 Neb. 469, 103 N.W. 71 (1905).
Information charging obtaining property by false pretenses was sufficient. West v. State, 63 Neb. 257, 88 N.W. 503 (1901).
In information for burglary, it is proper to allege ownership in person having visible occupancy and control of premises. Hahn v. State, 60 Neb. 487, 83 N.W. 674 (1900).
Charging carrying on of a lottery on divers days is bad for duplicity, offense not being a continuing one. State v. Dennison, 60 Neb. 192, 82 N.W. 628 (1900).
In information charging rape, all unlawful acts within period of limitation may be charged. Bailey v. State, 57 Neb. 706, 78 N.W. 284 (1899).
Information for assault with intent to kill was good. McVey v. State, 57 Neb. 471, 77 N.W. 1111 (1899).
Information for larceny is not fatally defective for failure to state exact time, when time is not essence of offense. Rema v. State, 52 Neb. 375, 72 N.W. 474 (1897).
Charge of malpractice and contempt may be joined if both involve same transaction. Blodgett v. State, 50 Neb. 121, 69 N.W. 751 (1897).
Information charging practice of medicine and surgery without certificate was sufficient. Jones v. State, 49 Neb. 609, 68 N.W. 1034 (1896).
Where information charges assault with intent to commit rape by force, it is not necessary to allege age of person upon whom assault was committed or age of defendant. Hall v. State, 40 Neb. 320, 58 N.W. 929 (1894).
3. Verification
To meet the requirement that an information shall be verified by the oath of the county attorney, it is sufficient if it appears, no matter in what form, that the truth of the charge or charges contained in the information are confirmed and substantiated by the oath of the county attorney. State v. Jones, 254 Neb. 212, 575 N.W.2d 156 (1998).
Information verified by some person other than county attorney is sufficient and renders additional verification by prosecuting official unnecessary. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Verification to information is sufficient if it appears, no matter in what form, that truth of charges contained therein is confirmed and substantiated by oath of county attorney. Marshall v. State, 116 Neb. 45, 215 N.W. 564 (1927).
It is sufficient if information is verified by county attorney on information and belief. Watson v. State, 109 Neb. 43, 189 N.W. 620 (1922).
Objection to verification is waived if not made before arraignment and plea. Emery v. State, 78 Neb. 547, 111 N.W. 374 (1907).
Verification must be before magistrate authorized to administer oaths, clerk of court or deputy. Nightingale v. State, 62 Neb. 371, 87 N.W. 158 (1901); Davis v. State, 31 Neb. 247, 47 N.W. 854 (1891).
Terms "prosecuting attorney" and "county attorney" are synonymous. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901).
Information may be verified by county attorney. Trimble v. State, 61 Neb. 604, 85 N.W. 844 (1901).
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
1. Information
2. Miscellaneous
1. Information
Filing and service of amended information rendered nonprejudicial defects in service of original information. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Provision of criminal code with respect to indictments applies to informations. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261 (1959).
Information was sufficient to charge offense of uttering forged check. Benedict v. State, 166 Neb. 295, 89 N.W.2d 82 (1958).
Statutory provisions relating to indictments applies to informations. Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 129 (1958).
This section makes the statutory provision for service of an indictment applicable to an information. Hawk v. State, 151 Neb. 717, 39 N.W.2d 561 (1949).
Information charging assault with intent to commit rape by force was not defective because of allegation of age of complaining witness. Frank v. State, 150 Neb. 745, 35 N.W.2d 816 (1949).
The provisions of the criminal code in relation to indictments apply to prosecution on information for picketing. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
2. Miscellaneous
Exact time of commission of alleged prior felony is not essential in charge under Habitual Criminal Act. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
There is no specified length of time that must elapse between filing of information and commencement of trial except requirement of one day must elapse after information has been served before arraignment. Darlington v. State, 153 Neb. 274, 44 N.W.2d 468 (1950).
This section makes applicable to prosecutions upon information preliminary pleadings provided for attacking indictments, and same waiver of defects for failure to make attack by motion to quash, plea in abatement or demurrer. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Election is not required between counts charging same offense. Stevens v. State, 84 Neb. 759, 122 N.W. 58 (1909).
Where offenses are distinct and separate, court should require prosecutor to elect. Miller v. State, 78 Neb. 645, 111 N.W. 637 (1907).
Several misdemeanors of same kind may be set forth in separate counts; prosecutor is not required to elect. Little v. State, 60 Neb. 749, 84 N.W. 248 (1900).
The requirement of service of copy of indictment within twenty-four hours after filing applies to information. Hawk v. Olson, 326 U.S. 271 (1945), reversing Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181 (1944).
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
After a court approves the dismissal without prejudice of information under this section, the State is free to file new information that includes additional charges. State v. Al-Sayagh, 268 Neb. 913, 689 N.W.2d 587 (2004).
The provisions of this section include the requirement of approval by the trial court before an information may be dismissed. State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974).
Obiter dictum in In re Interest of Moore, 186 Neb. 67, 180 N.W.2d 917, deleted to avoid possible misconstruction in conflict with this section. In re Interest of Moore, 186 Neb. 158, 180 N.W.2d 919 (1970).
Given gravity of original offense, state judge did not abuse his discretion in requiring that a proper probation revocation information be substituted for information which prosecution sought to dismiss. Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976).
Habitual criminal statute is not unconstitutional on grounds it gives county attorney selectivity in applying it, nor because it punishes a status rather than an act. Martin v. Parratt, 412 F.Supp. 544 (D. Neb. 1976).
State judge's refusal to dismiss probation violation charge except on condition county attorney file new charges did not deny probationer due process on ground that such judge, at final revocation hearing, was not a neutral and detached decision maker. Kartman v. Parratt, 397 F.Supp. 531 (D. Neb. 1975).
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
Uniform Criminal Extradition Act, see section 29-758.
Annotations
1. Nature and requisites
2. Waiver
3. Miscellaneous
1. Nature and requisites
If an information is filed initially in district court, referred to as a "direct information", such filing is treated in the nature of a complaint until a preliminary hearing is held and, in conformity with this section, after the preliminary hearing is concluded, the filing will then be treated as an information for speedy trial act purposes. State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
In a prosecution by information, the complaint and information must charge the same offense, but it is sufficient if the charge in the information is substantially the same as that alleged in the complaint. State v. Kelley, 211 Neb. 770, 320 N.W.2d 455 (1982).
Preliminary hearing before a county judge not an attorney not violative of this section. State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969).
Preliminary hearing is not required on complaint charging a misdemeanor. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).
Preliminary hearing is not a criminal trial of person accused. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
Omission to hold preliminary hearing of a person charged with crime is not jurisdictional. Swanson v. Jones, 151 Neb. 767, 39 N.W.2d 557 (1949).
Where it appears that charge in complaint is substantially the same as set forth in information, plea of want of preliminary examination because of variance is unavailing. Van Syoc v. State, 69 Neb. 520, 96 N.W. 266 (1903).
Examination made when magistrate is without jurisdiction is not a preliminary examination. White v. State, 28 Neb. 341, 44 N.W. 443 (1889).
A preliminary hearing, unless waived, is a prerequisite to a prosecution by information. Bird v. Sigler, 241 F.Supp. 1007 (D. Neb. 1964).
A defendant cannot be prosecuted by information until a preliminary hearing is held. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
2. Waiver
The right to a preliminary hearing is waived by entering a plea of not guilty in the district court. State v. DeJesus, 216 Neb. 907, 347 N.W.2d 111 (1984).
Failure to give preliminary hearing is not a jurisdictional defect and may be waived. Drewes v. State, 156 Neb. 319, 56 N.W.2d 113 (1952).
Preliminary hearing in a criminal case is waived unless defendant raises that question before he enters a plea of not guilty in the district court. Roberts v. State, 145 Neb. 658, 17 N.W.2d 666 (1945).
Right of preliminary hearing may be waived. Meyers v. State, 104 Neb. 356, 177 N.W. 177 (1920).
District court has jurisdiction when transcript shows filing of complaint, arraignment and waiver of preliminary hearing before magistrate. Clawson v. State, 96 Neb. 499, 148 N.W. 524 (1914).
Plea of not guilty waives objection that preliminary examination was not had. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
Transcript showing arraignment of accused and waiver of preliminary examination fulfilled requirements of this section. Korth v. State, 46 Neb. 631, 65 N.W. 792 (1896).
Failure to give prisoner preliminary examination is a mere defect, and is waived if not objected to before going to trial. Coffield v. State, 44 Neb. 417, 62 N.W. 875 (1895).
3. Miscellaneous
In an informal preliminary hearing, it does not violate the Confrontation Clause to rely on out-of-court statements to determine probable cause for purposes of continuing a defendant's pretrial detention. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
A claim that a defendant was not accorded a preliminary hearing and did not waive it, is determinable by a plea in abatement. State v. Forbes, 203 Neb. 349, 278 N.W.2d 615 (1979).
The district court is without jurisdiction to try on information one accused of committing a felony within the state unless the defendant is first accorded the privilege of a preliminary examination or waives the same. State v. Forbes, 203 Neb. 349, 278 N.W.2d 615 (1979).
Effect of dissemination of hearsay and purported statements of counsel considered in review of order restricting pretrial publicity. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975).
Prosecuting attorney cannot delegate authority to file information. Richards v. State, 22 Neb. 145, 34 N.W. 346 (1887).
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
Fact that accused is out on bail pending trial for felony in one county does not render him immune from arrest on charge of separate felony in another county. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939).
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
This section governs duties of sheriff in case of taking bond. Berrer v. Moorhead, 22 Neb. 687, 36 N.W. 118 (1888).
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
Recognizance, taken before unauthorized person, or when taking thereof is unauthorized, is void. Dickenson v. State, 20 Neb. 72, 29 N.W. 184 (1886).
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
1. Right to receive copy
2. Service of copy
3. Waiver
1. Right to receive copy
A plain reading of this section shows that it does not apply to complaints in county court. State v. Schanaman, 286 Neb. 125, 835 N.W.2d 66 (2013).
The defendant's right to a copy of information is not violated, where, although copy of amended information was not served on defendant, the case was tried on the original information as to which a copy was served. Hoctor v. State, 141 Neb. 329, 3 N.W.2d 558 (1942).
Accused is not entitled to additional copy merely because, with his knowledge, additional names are properly endorsed on information or because of amendment in immaterial respect. Eigbrett v. State, 111 Neb. 388, 196 N.W. 700 (1923).
Rule applies also to amended information. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).
State is required to furnish defendant with but one copy of information. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901).
Right to copy and one day thereafter to prepare for trial is a substantial right; denial thereof is error, but right may be waived. Barker v. State, 54 Neb. 53, 74 N.W. 427 (1898).
This section applies to copy of information as well as indictment. Hawk v. Olson, 326 U.S. 271 (1945), reversing Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181 (1944).
2. Service of copy
This statute specifically allows counsel to be served. State v. Henn, 223 Neb. 280, 388 N.W.2d 846 (1986).
The requirement that one day shall elapse between service of an information and arraignment relates to the charge which is to be tried and not to a charge that defendant is an habitual criminal. State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974).
Purpose of service of copy of information is to insure defendant a reasonable time in which to prepare his defense. Shepperd v. State, 168 Neb. 464, 96 N.W.2d 261 (1959).
Defendant cannot be put on trial until at least one day shall have elapsed after he has received copy of information. Darlington v. State, 153 Neb. 274, 44 N.W.2d 468 (1950).
This section provides for the service of indictment upon the accused. Hawk v. State, 151 Neb. 717, 39 N.W.2d 561 (1949).
3. Waiver
The failure of the record to show that the defendant made any objection to proceed with the trial on the charge raises the presumption that he or she waived the right under this section. State v. High, 225 Neb. 695, 407 N.W.2d 772 (1987).
Where amended information was properly filed and served, prior defects in original information and service thereof were not prejudicial. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Requirements of this section may be waived. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
Right not to be required to plead to indictment or information, until one day shall have elapsed after receiving copy of same, may be waived. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
Defendant's right hereunder may be waived; failure of record to show objection raises presumption of waiver. Kopp v. State, 124 Neb. 363, 246 N.W. 718 (1933).
Objection made after trial begins that copy of information had not been served is too late. Foster v. State, 83 Neb. 264, 119 N.W. 475 (1909).
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
The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
Failure to attack indictment or information prior to trial is a waiver of any defects therein which are not jurisdictional. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Where different counts in information are properly joined, and evidence is offered to sustain each, an election will not be required. Poston v. State, 83 Neb. 240, 119 N.W. 520 (1909).
A plea in abatement is a device whereby indictment or information can be attacked. Ronzzo v. Sigler, 235 F.Supp. 839 (D. Neb. 1964).
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
1. Defects
2. Waiver
3. Miscellaneous
1. Defects
Objections to an information or the content of an information should be raised by a motion to quash. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).
The charging of alternative means of committing the same crime that are incongruous as a matter of law is a defect apparent on the face of the record. State v. McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015).
Objections to the form or content of an information should be raised by a motion to quash. A defendant's failure to file a motion to quash the information waives objections to it, even when the objection is aimed at an amended information superseding the original information filed against the defendant. State v. Meers, 257 Neb. 398, 598 N.W.2d 435 (1999).
A motion to quash is the proper method to attack the requisite certainty and particularity of an information in a criminal case. State v. Bocian, 226 Neb. 613, 413 N.W.2d 893 (1987).
The defendant's motion to quash should have been sustained by the trial court because his testimony given under oath before a special legislative committee was not subject to prosecution as perjury under section 28-915. State v. Douglas, 222 Neb. 833, 388 N.W.2d 801 (1986).
Challenge to certainty and particularity of information which states an offense in the words of the statute may be made by a motion to quash, but not by a motion in arrest of judgment. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973).
In a criminal prosecution for picketing, failure to allege the essential elements of the offense renders the information subject to a motion to quash. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
Defects in indictment which might have been attacked by motion to quash are waived by general demurrer. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936).
Defects in verification should be raised by motion to quash before pleading to information. Davis v. State, 31 Neb. 247, 47 N.W. 854 (1891).
A motion to quash which raises the issue of the admissibility of a defendant's prior driving under the influence convictions, for enhancement purposes, should not be filed until after a determination of the defendant's guilt on the underlying offense. State v. Head, 14 Neb. App. 684, 712 N.W.2d 822 (2006).
2. Waiver
A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967).
Failure to file motion to quash is not a waiver where information wholly fails to allege essential element of crime. Nelson v. State, 167 Neb. 575, 94 N.W.2d 1 (1959).
Failure to attack indictment or information prior to trial is a waiver of any defects therein which are not jurisdictional. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Defects in indictment which might have been attacked by motion to quash are waived by general demurrer. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936).
Failure to make motion to quash is waiver of any defect on face of information. Matters v. State, 120 Neb. 404, 232 N.W. 781 (1930).
3. Miscellaneous
The distinction between a motion to quash and a motion to suppress is not mere form over substance. The filing of a motion to quash clearly notifies the State that the defendant's challenge is to the propriety of the entire proceedings. In contrast to a motion to quash, a motion to suppress seeks to exclude certain evidence from being presented at trial. State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999).
Disqualification of members of jury panel to serve cannot be raised by motion to quash. State v. Eggers, 175 Neb. 79, 120 N.W.2d 541 (1963).
Motion to quash was properly overruled in case stated. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904).
The proper procedure for determining the admissibility of prior driving under the influence convictions as prior convictions for the purposes of enhancement is to file a motion to quash on the enhancement issues after a determination of guilt on the underlying offense. State v. Head, 14 Neb. App. 684, 712 N.W.2d 822 (2006).
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
1. When made
2. Procedure
1. When made
Hereafter the sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceeding in the district court. Kruger v. Brainard, 183 Neb. 455, 161 N.W.2d 520 (1968).
A plea in abatement may be made when there is a defect in the record which is shown by facts extrinsic thereto. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Plea in abatement presenting questions of law only is properly determined by court. Hardin v. State, 92 Neb. 298, 138 N.W. 146 (1912).
Objections to empaneling of grand jury may be presented by plea in abatement. If plea is made, and no refusal to rule thereon by trial court is shown, objection is waived. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
Plea in abatement is proper where there is defect in record shown by extrinsic facts. In case stated, plea is not good. Steiner v. State, 78 Neb. 147, 110 N.W. 723 (1907).
Whether preliminary hearing has been had or waived may be determined by interposition of plea in abatement. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905).
A plea in abatement based upon the fact that defendant had two preliminary examinations, and that on the first he was held for a lower grade of offense than upon the one which is the basis of the information filed against him is demurrable. Thompson v. State, 61 Neb. 210, 85 N.W. 62 (1901).
Matters triable under plea of not guilty cannot be presented by plea in abatement. State v. Bailey, 57 Neb. 204, 77 N.W. 654 (1898).
Objections on grounds of variance of information from complaint should be made by plea in abatement. Whitner v. State, 46 Neb. 144, 64 N.W. 704 (1895).
2. Procedure
After trial and conviction in the district court, any error in the ruling of the district court on the plea in abatement is cured if the evidence at trial is sufficient to permit the jury to find guilt beyond a reasonable doubt. State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975).
Issue on plea in abatement was properly tried by the court without a jury. Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897).
Where plea in bar is good, issue raised by it and state's reply must be tried by jury. Arnold v. State, 38 Neb. 752, 57 N.W. 378 (1894).
Ruling on plea in abatement is not a final order. Gartner v. State, 36 Neb. 280, 54 N.W. 516 (1893).
Plea may be signed by prisoner's attorney; if verified by prisoner, it is sufficient. Bohanan v. State, 15 Neb. 209, 18 N.W. 129 (1884).
Plea must point out particular cause of illegality. Baldwin v. State, 12 Neb. 61, 10 N.W. 463 (1881).
Plea in abatement must state facts and not legal conclusions. Priest v. State, 10 Neb. 393, 6 N.W. 468 (1880).
Where allegations of plea in abatement are denied by state, burden of proof is on defendant. Everson v. State, 4 Neb. Unof. 109, 93 N.W. 394 (1903).
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
Demurrer to information was not properly sustained as to one count of the information. State v. Buttner, 180 Neb. 529, 143 N.W.2d 907 (1966).
Failure to demur is not a waiver where information wholly fails to allege essential element of crime. Nelson v. State, 167 Neb. 575, 94 N.W.2d 1 (1959).
Demurrer would not lie to indictment because it alleged in detail facts leading up to commission of criminal act charged. Kirchman v. State, 122 Neb. 624, 241 N.W. 100 (1932).
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
Order of district court sustaining motion to quash information does not operate to discharge the defendant. Dobrusky v. State, 140 Neb. 360, 299 N.W. 539 (1941).
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
1. Plea of not guilty
2. Demurrer
3. Miscellaneous
1. Plea of not guilty
Overruling motion to quash information made after defendant had pleaded not guilty was proper. State v. Fiegl, 184 Neb. 704, 171 N.W.2d 643 (1969).
A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967).
Plea in abatement was properly overruled when filed after entry of plea of not guilty. Onstott v. State, 156 Neb. 55, 54 N.W.2d 380 (1952).
Objection that a preliminary hearing in a criminal case has not been had is waived by a plea of not guilty in the district court. Roberts v. State, 145 Neb. 658, 17 N.W.2d 666 (1945).
Where defendant enters plea of not guilty to amended information, he waives all defects which might have been excepted to by motion to quash or plea in abatement. Dobrusky v. State, 140 Neb. 360, 299 N.W. 539 (1941).
Plea of not guilty waives all defects which may be excepted to by plea in abatement. Uerling v. State, 125 Neb. 374, 250 N.W. 243 (1933).
Objection that accused has not had preliminary examination is waived unless made before plea of not guilty is entered. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
2. Demurrer
A motion to quash filed simultaneously with a demurrer to the indictment is not barred by this section. State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980).
Where demurrer to information is first filed and overruled, defects which might have been raised by motion to quash are waived. Wiese v. State, 138 Neb. 685, 294 N.W. 482 (1940).
Defects in an information which might have been attacked by motion to quash are waived by general demurrer. Buthman v. State, 131 Neb. 385, 268 N.W. 99 (1936).
Demurrer to information or plea of not guilty waives all defects which may be excepted to by motion to quash or plea in abatement. Green v. State, 116 Neb. 635, 218 N.W. 432 (1928); Olsen v. State, 114 Neb. 112, 206 N.W. 1 (1925); Reinoehl v. State, 62 Neb. 619, 87 N.W. 355 (1901).
3. Miscellaneous
The proper method of objecting to trial in the district court for the insufficiency of a preliminary hearing, or the failure to provide one at all, is by a timely motion to quash or a plea in abatement. State v. Johnson, 314 Neb. 20, 988 N.W.2d 159 (2023).
Under this section, once a defendant has entered a plea, or a plea is entered for the defendant by the court, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash, even if the defendant entered his plea through a written arraignment under section 29-4206. State v. Liston, 271 Neb. 468, 712 N.W.2d 264 (2006).
This section applies where a plea is entered for a defendant by the court. State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).
All defects that may be excepted to by a motion to quash are taken as waived by a defendant pleading the general issue. State v. Bocian, 226 Neb. 613, 413 N.W.2d 893 (1987).
This section applies whether plea is by defendant in person or by the court for him if he stands mute. State v. Etchison, 190 Neb. 629, 211 N.W.2d 405 (1973).
Challenge to certainty and particularity of information which states an offense in the words of the statute is waived by pleading the general issue. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973).
Defendant's assignment of error that court lacked jurisdiction because information failed to contain a distinct allegation of each element of crime waived by guilty plea. State v. Workman, 186 Neb. 467, 183 N.W.2d 911 (1971).
Defendant, by pleading guilty, waived objection that might have been raised by plea in abatement. State v. Ninneman, 179 Neb. 729, 140 N.W.2d 5 (1966).
Waiver applied only to those matters which may be raised by motion to quash. Nelson v. State, 167 Neb. 575, 94 N.W.2d 1 (1959).
Failure to attack indictment or information prior to trial is a waiver of any defects therein which are not jurisdictional. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).
Information was not subject to charge of duplicity, and defects therein were waived. Sudyka v. State, 123 Neb. 431, 243 N.W. 276 (1932).
Defects in information were waived. Matters v. State, 120 Neb. 404, 232 N.W. 781 (1930).
Filing plea in bar constitutes waiver of all matters necessary or proper to be raised by plea in abatement. Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923).
Objections to empaneling grand jury may be presented by plea in abatement; if there is no ruling or refusal to rule thereon, objection is waived; cannot be taken by motion in arrest of judgment. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
Defects which might have been attacked by motion to quash or plea in abatement are waived when defendant pleads to general issue or when plea is entered for him by court. Huette v. State, 87 Neb. 798, 128 N.W. 519 (1910); Ingraham v. State, 82 Neb. 553, 118 N.W. 320 (1908).
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
Joinder of issues on plea in abatement may be waived. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).
Demurrer to plea in bar admits all facts well pleaded therein. Smith v. State, 42 Neb. 356, 60 N.W. 585 (1894).
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
Plea of nolo contendere, see section 29-1819 et seq.
Annotations
When accused appears and goes to trial, arraignment is waived. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944).
Demurrer or plea of guilty waives all defects which might be objected to only by motion to quash or plea in abatement. Goddard v. State, 73 Neb. 739, 103 N.W. 443 (1905).
Trial for misdemeanor, without plea of defendant, is not ground for reversal. Allyn v. State, 21 Neb. 593, 33 N.W. 212 (1887).
Plea of not guilty precludes raising question of former conviction. Marshall v. State, 6 Neb. 120 (1877).
Defendant should plead to charge before he is placed on trial. Burley v. State, 1 Neb. 385 (1871).
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, 2024Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB184, section 1, with LB1051, section 1, to reflect all amendments.
Cross References
Nebraska Juvenile Code, see section 43-2,129.
Annotations
1. Arraignment
2. Jurisdiction to juvenile court
3. Miscellaneous
1. Arraignment
Arraignment complied with statute. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
Where accused goes to trial without being arraigned and failed to demand formal arraignment, he waives his rights. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944); Hill v. State, 116 Neb. 73, 215 N.W. 789 (1927).
Issues are not joined until arraignment and plea to information; no jeopardy in absence of plea. Gragg v. State, 112 Neb. 732, 201 N.W. 338 (1924).
Under prior statute, reading of indictment could not be waived in felony case, and failure to arraign was reversible error. Popel v. State, 105 Neb. 348, 180 N.W. 570 (1920).
Formal arraignment is not necessary in misdemeanor. Kruger v. State, 1 Neb. 365 (1871).
2. Jurisdiction to juvenile court
Pursuant to subdivision (1)(a)(ii) of this section, whether a juvenile court has jurisdiction over a person is determined not by the person's age at the time of the offense, but, rather, by the person's age at the time he or she is charged for the offense. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
County courts have not been given authority to decide motions to transfer to juvenile court in cases in which they lack jurisdiction to try the case. State v. A.D., 305 Neb. 154, 939 N.W.2d 484 (2020).
Pursuant to subsection (2) of this section, alleged juvenile offenders have the ability to move for a transfer of their case from a county or district court to a juvenile court and this motion must be made within 30 days after arraignment unless otherwise permitted by the court for good cause shown. State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).
Subsection (2) and subdivision (3)(c) of this section provide that an alleged juvenile offender can move for transfer to a juvenile court within 30 days of the juvenile's arraignment and that either the juvenile or the State can appeal an order on the motion within 10 days of its entry. State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).
Pursuant to subdivision (3)(a) of this section, after considering the evidence and the criteria set forth in section 43-276, the court shall transfer the case to juvenile court unless a sound basis exists for retaining the case in county court or district court. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
Pursuant to subdivision (3)(b) of this section, the court is required to set forth findings for the reason for its decision. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
The general rule is that on request by a juvenile, the district court must transfer a juvenile case involving a felony from district court to juvenile court, unless a sound basis for retaining jurisdiction exists. In deciding whether to grant a requested waiver of the district court's jurisdiction and to transfer the case to juvenile court, the district court having jurisdiction over a pending criminal prosecution is required to consider the juvenile's request in light of the criteria set forth in section 43-276. State v. Reynolds, 246 Neb. 802, 523 N.W.2d 377 (1994).
In deciding whether to grant a requested waiver of jurisdiction and transfer proceedings to juvenile court pursuant to this section, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in light of the criteria set forth in section 43-276. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990).
This section and section 43-276 provide a balancing test in which public protection and security are weighed against practical, and not problematical, rehabilitation in determining whether there should be a waiver of jurisdiction over a criminal proceeding to the juvenile court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).
This section and section 43-276 involve a balancing test, namely, public protection and societal security weighed against practical and not problematic rehabilitation, in determining whether there should be a waiver of jurisdiction in criminal proceedings with a transfer to the juvenile court. Where the record supported the trial court's findings that the crime was violent, that the defendant may require treatment beyond the age of majority, that defendant's rehabilitative needs were beyond the scope of the juvenile court, and that more protection of the public was required than would be available in juvenile court, the district court did not abuse its discretion in retaining jurisdiction. State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987).
District court properly refused transfer of minor to juvenile court after a hearing and issuing written findings enumerating the basis for denying transfer. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
A judgment will not be reversed for failure of trial court to set forth findings for its reason to overrule a motion to transfer case to juvenile court where defendant failed to call trial court's attention to the requirement of the statute. State v. Highly, 195 Neb. 498, 238 N.W.2d 909 (1976).
The district court abused its discretion in granting the transfer of two criminal cases to the juvenile court because there was substantial evidence supporting the retention of the cases in the district court for the sake of public safety and societal security, and there was a lack of evidence demonstrating that any further rehabilitation through the juvenile system would be practical and nonproblematical in the limited time left under the juvenile court's jurisdiction. State v. Esai P., 28 Neb. App. 226, 942 N.W.2d 416 (2020).
For matters initiated in the county or district court, a party can move to transfer to the juvenile court pursuant to subsection (3) of this section. State v. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018).
The second degree murder and use of a deadly weapon charges filed against a 15-year-old were retained in the district court; the trial court's denial of a motion to transfer to the juvenile court is reviewed for an abuse of discretion. State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018).
3. Miscellaneous
When a defendant appeared, was represented by counsel, and went to trial, the defendant waived any argument that rearraignment was necessary. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579 (2004).
In order to retain jurisdiction pursuant to this section, the district court does not need to resolve every factor in section 43-276 against the juvenile. This section represents the policy decision, made by the Legislature, that decisions made at transfer hearings are to be informed by all of the surrounding circumstances, which may or may not include evidence that is inadmissible at a subsequent criminal trial. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).
A request to a court to waive jurisdiction to the juvenile court raises a jurisdictional challenge, and a defendant may appeal an unfavorable ruling even after entering a plea of guilty or tendering a plea of no contest. State v. Phinney, 235 Neb. 486, 455 N.W.2d 795 (1990).
Section is not applicable to misdemeanors. Wozniak v. State, 103 Neb. 749, 174 N.W. 298 (1919); Burroughs v. State, 94 Neb. 519, 143 N.W. 450 (1913).
Right to have complaint read to him in filiation proceeding is waived by defendant by proceeding to trial. McNeal v. Hunter, 72 Neb. 579, 101 N.W. 236 (1904).
The statutory amendment providing for interlocutory appeals from an order granting or denying transfer of the case from county or district court to juvenile court became effective August 24, 2017. State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018).
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.
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
1. Scope
2. Procedure
1. Scope
A plea in bar may be used to raise a double jeopardy challenge to the State's right to retry a defendant following a mistrial. State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).
Invalidity of law under which defendant is prosecuted cannot be raised by plea in bar. Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923).
Where amendment of information is made after trial has begun, there being no change in offense charged, accused is not thereby placed in jeopardy second time. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).
Former complaint which failed to allege facts sufficient to constitute crime is not bar. Roberts v. State, 82 Neb. 651, 118 N.W. 574 (1908).
Judgment of court which had no jurisdiction of subject matter is no bar. Peterson v. State, 79 Neb. 132, 112 N.W. 306 (1907).
Prosecution for burglary resulting in mistrial is no bar. Sharp v. State, 61 Neb. 187, 85 N.W. 38 (1901).
Plea in bar is waiver of plea in abatement; truth of averments of plea is tried to jury. Bush v. State, 55 Neb. 195, 75 N.W. 542 (1898).
Discharge of jury without sufficient cause may amount to acquittal. Conklin v. State, 25 Neb. 784, 41 N.W. 788 (1889); State v. Shuchardt, 18 Neb. 454, 25 N.W. 722 (1885).
Conviction in another country is not necessarily a bar. Marshall v. State, 6 Neb. 120 (1877).
Driving while under the influence of alcohol and refusal to submit to a chemical test are not the same offense for double jeopardy purposes, and double jeopardy does not prohibit the State from prosecuting the two
offenses in a single prosecution. State v. Grizzle, 18 Neb. App. 48, 774
N.W.2d 634 (2009).
2. Procedure
A plea in bar pursuant to this section may be filed to assert any nonfrivolous double jeopardy claim arising from a prior prosecution, including a claim that jeopardy was terminated by entry of a mistrial without manifest necessity. State v. Williams, 278 Neb. 841, 774 N.W.2d 384 (2009).
A plea in bar is not a proper procedure after a defendant's conviction has been affirmed on appeal, and the cause is remanded only for resentencing. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Plea in bar may be disregarded if presented while plea of not guilty remains on record; but if former is considered, latter is treated as withdrawn. George v. State, 59 Neb. 163, 80 N.W. 486 (1899).
Plea of "former jeopardy" should be set out in record; is invalid unless sworn to. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).
Defense of statute of limitations is availed of under plea of "not guilty." Boughn v. State, 44 Neb. 889, 62 N.W. 1094 (1895).
Plea in bar may be demurred to; under former statute, issue should be joined and tried to jury; former jeopardy is ground for plea. Arnold v. State, 38 Neb. 752, 57 N.W. 378 (1894); Murphy v. State, 25 Neb. 807, 41 N.W. 792 (1889).
The defendant's claim that he was being subjected to multiple punishments for the same offense was unripe because he had pled guilty to one offense but had not been tried or convicted of the other offense. State v. Grizzle, 18 Neb. App. 48, 774 N.W.2d 634 (2009).
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
Plea in bar must be sworn to by accused as prerequisite to validity. Schrum v. State, 108 Neb. 186, 187 N.W. 801 (1922).
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
A plea of nolo contendere entered on advice of counsel when defendant failed to supply counsel with all information that might have been relevant to his defense may not be withdrawn when the record shows that it was entered knowingly, understandingly, and voluntarily. State v. Hurley, 207 Neb. 321, 299 N.W.2d 152 (1980).
The effect of a plea of nolo contendere is the same as a plea of guilty. State v. Neuman, 175 Neb. 832, 125 N.W.2d 5 (1963); State v. Hylton, 175 Neb. 828, 124 N.W.2d 230 (1963).
Judgment of conviction of a felony, rendered upon plea of nolo contendere, is conclusive in disbarment proceeding. State ex rel. Nebraska State Bar Assn. v. Stanosheck, 167 Neb. 192, 92 N.W.2d 194 (1958).
Plea entered by court may be withdrawn by defendant. Huette v. State, 87 Neb. 798, 128 N.W. 519 (1910).
Plea of "not guilty," entered by court under this section, binds defendant. Trimble v. State, 61 Neb. 604, 85 N.W. 844 (1901).
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.
Annotations
1. Procedure
2. Miscellaneous
1. Procedure
As to pleas entered on or after July 20, 2002, this section gives a court jurisdiction to consider a motion to withdraw such plea or vacate the judgment regardless of whether a defendant has completed his or her sentence. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).
Subsection (3) of this section does not create a procedure for withdrawal of a plea accepted before July 20, 2002. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).
This section imposes no requirement that a motion to withdraw a plea must be filed before a defendant completes his or her sentence. State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014).
Subsection (2) of this section establishes a statutory procedure whereby a convicted person may file a motion to have the criminal judgment vacated and the plea withdrawn when the advisement required by subsection (1) was not given and the conviction 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. State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
This section gives a court discretion to vacate a judgment or withdraw a plea where a court has failed to provide the advisement required for pleas made on or after July 20, 2002, but it does not confer the power to vacate a judgment after the defendant has already completed his or her sentence. State v. Rodriquez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008).
The word "prior" has been interpreted to require the immigration advisement to be given by the court immediately before the entry of a plea of guilty or nolo contendere to ensure the defendant is aware of the immigration consequences of the plea when the plea is made, and to ensure a defendant who is arraigned and subsequently pleads to a lesser charge is aware that the immigration advisement applies. State v. Llerenas-Alvarado, 20 Neb. App. 585, 827 N.W.2d 518 (2013).
In cases where this section does not apply, an order overruling a motion to withdraw a plea does not affect a substantial right in a special proceeding and therefore does not constitute a final, appealable order. State v. Cisneros, 14 Neb. App. 112, 704 N.W.2d 550 (2005).
2. Miscellaneous
Where the trial court provided the required advisement of possible immigration consequences, errors by the interpreter in communicating that advisement to the defendant do not create a statutory right to withdraw a plea of guilty or nolo contendere. State v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018).
If a defendant otherwise meets the requirements of this section, he or she is entitled to move to withdraw a plea even if he or she was actually aware of the immigration consequences of the plea at the time it was entered. State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d 96 (2013).
Under this section, all a defendant must show before withdrawing a plea of guilty or nolo contendere is (1) that the trial court failed to warn the defendant of one of the listed consequences and (2) that the defendant is currently facing one of the omitted consequences. State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
The remedy created by subsection (2) of this section extends to those serving sentences at the time the motion to withdraw the plea is filed. State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009).
Even if a defendant was not sufficiently advised of his or her rights concerning immigration consequences to pleading guilty, failure to give the advisement is not alone sufficient to entitle a convicted defendant to have the conviction vacated and the plea withdrawn; a defendant must also allege and show that he or she actually faces an immigration consequence which was not included in the advisement given. State v. Llerenas-Alvarado, 20 Neb. App. 585, 827 N.W.2d 518 (2013).
The defendant was properly advised under this section where advisement was not given verbatim but only minor, inconsequential wording changes were used in giving advisement as to immigration consequences of the defendant's plea. State v. Molina-Navarrete, 15 Neb. App. 966, 739 N.W.2d 771 (2007).
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.
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
Requirement of entry of plea on back of indictment or information is directory and not mandatory. Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 129 (1958).
Plea of guilty is equivalent to finding of guilty and will sustain such an order. Leiby v. State, 79 Neb. 485, 113 N.W. 125 (1907).
Plea of guilty, entered by defendant, is evidence against him in subsequent action to which he is party involving same subject matter. Wisnieski v. Vanek, 5 Neb. Unof. 512, 99 N.W. 258 (1904).
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
Date for trial was properly designated. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951).
Failure to endorse plea on indictment is not ground for reversal. Preuit v. People, 5 Neb. 377 (1877).
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
District court has discretion to hold hearing voluntarily on mental competency of defendant to undergo sentence. State v. Saxon, 187 Neb. 338, 190 N.W.2d 854 (1971).
Insanity as a bar to the imposition of sentence presents a factual issue for the determination of the court. State v. Anderson, 186 Neb. 435, 183 N.W.2d 766 (1971).
Insanity as bar to imposition of sentence cannot be raised by habeas corpus. Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952).
This section imposes a duty on but does not go to the jurisdiction of the court. Sedlacek v. Greenholtz, 152 Neb. 386, 41 N.W.2d 154 (1950).
One who has become insane after the commission of a crime ought not to be tried for the offense during the continuance of the disability. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).
Where insanity has not originated after commission of act, there is no requirement of trial of question of insanity. Walker v. State, 46 Neb. 25, 64 N.W. 357 (1895).
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
Attendance of witnesses, right of accused to compel, see Article I, section 11, Constitution of Nebraska.
Annotations
1. Competency, how determined
2. Procedure
3. Miscellaneous
1. Competency, how determined
Lay witness testimony is admissible in a competency hearing under subsection (1) of this section. State v. Martinez, 295 Neb. 1, 886 N.W.2d 256 (2016).
The means to be employed to determine competency or the substantial probability of competency within the foreseeable future are discretionary with the district court, and the court may cause such medical, psychiatric, or psychological examination of the accused to be made as the court deems necessary in order to make such a determination. State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).
If the district court determines that an accused is incompetent to stand trial, then the court must make a determination whether there is a substantial probability that the accused will become competent within the foreseeable future under this section; absent such a factual determination, there is no order to be meaningfully reviewed on appeal. The means to be employed to determine competency or the substantial probability of competency within the foreseeable future are discretionary with the district court, and the court may cause such medical, psychiatric, or psychological examination of the accused to be made as he or she deems necessary in order to make such a determination under this section. State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000).
The issue of competency is one of fact, and the means used to resolve it are discretionary with the court. State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999).
The question of competency to stand trial is to be determined by the court and the means are discretionary. State v. Crenshaw, 189 Neb. 780, 205 N.W.2d 517 (1973).
2. Procedure
An "examination and hearing on competency" within the meaning of section 29-1207(4)(a) is the well-defined statutory procedure for determining competency to stand trial established by this section. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).
Proceeding to determine the competency of the accused to stand trial is a "special proceeding" and an order finding the defendant incompetent to stand trial and ordering him confined until such time as he is competent is a "final order" from which an appeal may be taken. State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
3. Miscellaneous
A finding of "conditionally competent" is not permitted under Nebraska law. State v. Lauhead, 306 Neb. 701, 947 N.W.2d 296 (2020).
An individual has a constitutional right not to be put to trial when lacking mental competency, and this includes sentencing. State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).
Determination that accused is mentally incompetent to stand trial does not invalidate prior proceedings nor determine his mental condition at any prior time. State v. Klatt, 187 Neb. 274, 188 N.W.2d 821 (1971).
This section does not change the common law in such cases but leaves it to the discretion of the court to hold such hearing, if any, as it deems necessary. State v. Anderson, 186 Neb. 435, 183 N.W.2d 766 (1971).
Decision whether a competency hearing should be held is within sound discretion of trial court. Crenshaw v. Wolff, 504 F.2d 377 (8th Cir. 1974).
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.
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
Witness in criminal case cannot justify failure to obey subpoena on ground that he had demanded his fees and they were not paid. Huckins v. State, 61 Neb. 871, 86 N.W. 485 (1901).
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
Defendant may not be arbitrarily deprived of testimony that would have been relevant, material, and vital to the defense. State v. Cain, 223 Neb. 796, 393 N.W.2d 727 (1986).
Court may require showing of what testimony may be expected of prospective witness before entry of order for compulsory process. O'Rourke v. State, 166 Neb. 866, 90 N.W.2d 820 (1958).
Where testimony of witness was incompetent, failure to serve compulsory process was not prejudicial. Garcia v. State, 159 Neb. 571, 68 N.W.2d 151 (1955).
Liability of county arises only by express provisions of statute. Worthen v. Johnson County, 62 Neb. 754, 87 N.W. 909 (1901).
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
Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, see section 29-1911.
Annotations
This section does not provide for the taking of depositions at county expense in advance of the trial. State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
It was not necessary to analyze this section to dispose of claim that trial court erred in refusing permission to take deposition of inmates of penal institution. Rains v. State, 173 Neb. 586, 114 N.W.2d 399 (1962).
Taking of depositions at county expense in advance of trial is not authorized. Vore v. State, 158 Neb. 222, 63 N.W.2d 141 (1954).
Defendant was entitled to continuance to take deposition out of the state where timely application was made. Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (1947).
On admission by state that proposed witness would testify as stated in affidavit, court may refuse continuance. Fanton v. State, 50 Neb. 351, 69 N.W. 953 (1897); Burris v. Court, 48 Neb. 179, 66 N.W. 1131 (1896).
Correctness of ruling in suppressing deposition, not excepted to, cannot be questioned on error. Clough v. State, 7 Neb. 320 (1878).
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
It was not necessary to analyze this section to dispose of claim that trial court erred in refusing permission to take deposition of inmates of penal institution. Rains v. State, 173 Neb. 586, 114 N.W.2d 399 (1962).
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.
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.
Cross References
Witness committed to jail, see section 29-508.02.
Annotations
Attendance of witness from without state cannot be compelled at expense of county. Vore v. State, 158 Neb. 222, 63 N.W.2d 141 (1954).
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
1. General
2. Prejudice
3. Particular cases
4. Miscellaneous
1. General
Pursuant to this section, upon a defendant's proper request through discovery procedure, the State must disclose information which is material to the preparation of a defense to the charge against the defendant. In order that the defendant receive a fair trial, requested and material information must be disclosed to the defendant. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
Section 29-1916 does not provide a basis for a trial court to order a defendant to produce defense exhibits when the defendant has not requested a discovery order pursuant to this section. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).
The Supreme Court has not established any court rules that would provide the State with a right of discovery in criminal cases. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).
Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or court rule. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).
Statutory design for discovery is based upon the Federal Rules of Criminal Procedure. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
This section governs what material a criminal defendant is entitled, as a matter of right, to discover. This section does not include information about prior criminal histories of witnesses, and discovery of that information is within the discretion of the trial court. State v. Dimmitt, 5 Neb. App. 451, 560 N.W.2d 498 (1997).
2. Prejudice
Under this section, whether a prosecutor's failure to disclose evidence results in prejudice depends on whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal. State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017); State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999); State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997).
When a continuance will cure the prejudice caused by belated disclosure, a continuance should be requested by counsel and granted by the trial court. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
The test for whether nondisclosure is prejudicial is whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting in impeachment or rebuttal. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995).
The defendant was not prejudiced by the State's delay in turning over its cooperation agreement with a witness such that the district court should have disqualified the witness from testifying. Deposition responses read into the record by the State indicated that the defense counsel was made aware of the cooperation agreement at that time. Moreover, the State turned over the cooperation agreement prior to trial, and the fact that the witness was receiving a benefit in exchange for her testimony was brought to the jury's attention by both the State and the defense counsel during the witness' testimony. State v. Johnson, 31 Neb. App. 207, 979 N.W.2d 123 (2022).
3. Particular cases
An expert's oral, unrecorded opinions do not fall within the scope of subdivision (1)(e) of this section. State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
A trial court's erroneous failure to notify defense counsel of an ex parte, court-ordered examination prior to such examination and the subsequent delay in defense counsel's reception of the expert examiner's report until trial has commenced is harmless when defense counsel receives a copy of the expert examiner's report as soon as the state receives such a copy, and the defense has adequate opportunities to depose the expert examiner; hence, admission of the expert examiner's testimony and the denial of defense counsel's motions for continuance and a new trial are not reversible errors. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
Prosecutor's nondisclosure of pathologist's opinion, given after examination of victim's injuries in photographs, that means used and manner in which victim's wounds were inflicted were not as victim claimed, denied defendant fair trial. State v. Brown, 214 Neb. 665, 335 N.W.2d 542 (1983).
A motion to produce addressed to the prosecuting attorney under this section is not an appropriate way for a defendant in a criminal case to procure handwriting exemplars of third parties unless it be alleged that such exemplars are in the possession of the prosecutor and are relevant evidence in the prosecution. State v. Davis, 203 Neb. 284, 278 N.W.2d 351 (1979).
At hearing on motion to produce hereunder, the trial court must determine by inquiry of the prosecuting attorney whether or not he has any item designated in the statute and in the motion to produce, and if the court refuses to order production, it shall render findings in writing with foundation facts. State v. Eskew, 192 Neb. 76, 218 N.W.2d 898 (1974).
Where defendant's counsel had knowledge of a polygraph examination and did not attempt discovery nor to subpoena the examiner before trial, the report was not newly discovered evidence. State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974).
Where LSD tablet was used in test and graph was not preserved, but it was stipulated results of laboratory test, investigation, and experiments were produced and copies given to defendant and no specific request for graph was made in discovery motion, refusal of court to suppress evidence was not error. State v. Batchelor, 191 Neb. 148, 214 N.W.2d 276 (1974).
Tape recording of conversation between undercover agent and defendant made before he was accused or indicted are admissible when he had taken no steps to discover and has on cross-examination elicited testimony of the conversation from the witness. State v. Myers, 190 Neb. 146, 206 N.W.2d 851 (1973).
Denial of a request during trial for a recess to examine a statement of accomplice whose name had been endorsed on information as a witness was not an abuse of discretion. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).
The State did not fail to comply with subsection (1)(e) of this section when it did not provide the defendant with a chromatogram graphic printout of his blood test result during discovery, where chromatogram had to be interpreted by a forensic scientist to determine its validity, the defendant was provided with the laboratory result during discovery, and the scientist was questioned about the chromatogram during trial. State v. Hashman, 20 Neb. App. 1, 815 N.W.2d 658 (2012).
A protective order limiting the defendant's and defense counsel's access to sensitive items in a sexual assault on a child case was properly granted. State v. Lovette, 15 Neb. App. 590, 733 N.W.2d 567 (2007).
4. Miscellaneous
The State may disseminate discovery to a criminal defendant through his or her counsel. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
Materiality is defined more broadly under this section than under the U.S. Constitution, and thus, evidence that is material under the U.S. Constitution is material under this section. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
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.
Annotations
There is no obligation for the district court to suppress the evidence without a motion that the specific evidence be made available to conduct like tests or analyses. In the absence of any discovery motion, the trial court cannot know the precise issue presented and make the necessary factual findings in determining whether an order of discovery should be granted. And without a proper discovery order and a claim of the violation of such order, the court cannot properly determine whether the evidence subject to the order was, in fact, unavailable and whether it was unavailable due to neglect or intentional alteration. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
Under the plain language of this section, exclusion of the described tests or analyses is a mandatory sanction for violation of the discovery order issued under this section, in the event of unavailability due to neglect or intentional alteration as described in the section. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
It is not an abuse of discretion for the trial court to admit expert testimony regarding the analysis of a substance necessarily consumed in testing, provided that the scientific or technical basis of the expert's opinion and the specific facts of the case on which the expert's opinion are based are before the jury and the opposing party has the opportunity to cross-examine the expert. State v. Peterson, 242 Neb. 286, 494 N.W.2d 551 (1993).
Where evidence necessary to conduct tests or analyses by the defense is unavailable due to the neglect or intentional alteration by the State, suppression of the test results is the exclusive remedy under subsection (2) of this section. State v. Tanner, 233 Neb. 893, 448 N.W.2d 586 (1989).
Where substance necessary for test by defense has been made unavailable by state, evidence of state's tests may be suppressed. State v. Brodrick, 190 Neb. 19, 205 N.W.2d 660 (1973).
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.
Annotations
In a driving under the influence case, where the record clearly showed that a computer source code for a breath-testing machine was not in the State's possession and that the manufacturer of the machine considered the source code a trade secret and proprietary information, the source code was not discoverable under this section. State v. Kuhl, 16 Neb. App. 127, 741 N.W.2d 701 (2007).
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
A protective order limiting the defendant's and defense counsel's access to sensitive items in a sexual assault on a child case was properly granted. State v. Lovette, 15 Neb. App. 590, 733 N.W.2d 567 (2007).
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.
Annotations
This section does not provide a basis for a trial court to order a defendant to produce defense exhibits when the defendant has not requested a discovery order pursuant to section 29-1912. State v. Kinney, 262 Neb. 812, 635 N.W.2d 449 (2001).
Whenever court issues order to produce documents or information on defendant's motion, it may require defendant to reciprocate. State v. Eskew, 192 Neb. 76, 218 N.W.2d 898 (1974).
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
Child victim or child witness, use of videotape deposition, see section 29-1926.
Annotations
A district court's order authorizing a second deposition of a State witness who refused to answer questions during the first deposition was a sufficient remedy for noncompliance with discovery, where the authorization occurred approximately 4 months before trial was to begin. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
There is no obligation for the State to produce the victim or assist in locating the victim for purposes of a pretrial deposition by defense counsel. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
Subsection (4) of this section restricts the use of a criminal deposition only at the trial rather than at any trial. In other words, it restricts the deposition's use at the criminal trial for which the deposition was taken, and not in a separate civil action. Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012).
The plain language of this section, by using the term "may," indicates that the granting of a deposition is within the trial court's discretion. A defendant is not entitled, as a matter of right, to a deposition under this section. State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012).
This statute governs the appropriate use of discovery depositions in a criminal case when the deponent is available as a testifying witness. State v. Castor, 257 Neb. 572, 599 N.W.2d 201 (1999).
A motion for depositions must be filed by a defendant after the information is filed. State v. Murphy, 255 Neb. 797, 587 N.W.2d 384 (1998).
Subsection (4) of this section governs only the appropriate use of a discovery deposition when the deponent is an available, testifying witness. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997).
Defendant is not entitled, as a matter of right, to a deposition pursuant to subsection (1) of this section. State v. Tuttle, 238 Neb. 827, 472 N.W.2d 712 (1991).
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.
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.
Annotations
Under the plain meaning of this section, if a party fails to comply with discovery and give notice of an intent to call a witness, the court may prohibit that witness from being called. State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
Under this section, on determination that a discovery order has not been complied with, the trial court has broad discretion to enter such other order as it deems just under the circumstances. State v. Surber, 221 Neb. 714, 380 N.W.2d 293 (1986).
Subsection (4) of section 29-1919, R.R.S.1943, allows a court to enter no order at all. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).
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.
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.
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.
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.
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
Office of Inspector General of Nebraska Child Welfare Act, see section 43-4301.
Annotations
In a jury trial, a large opaque screen in the courtroom, separating the child witness from the defendant, was a violation of the defendant's due process right to a fair trial. State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008).
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.
Annotations
This section does not allow a court to order the disclosure of the identity of a defendant's alibi witnesses prior to trial. State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998).
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
1. Felony
2. Misdemeanor
3. Miscellaneous
1. Felony
Court may not, without notice to and in absence of defendant and his counsel, orally instruct the jury while it is deliberating on the verdict. Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940).
In felony case, not capital, defendant, out on bail, may waive right to be present during some of proceedings. Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925).
Person, convicted of felony, and represented by counsel, cannot, as matter of right, insist on being present either at time of filing, argument or ruling on motion for new trial. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).
Prisoner must be present at time verdict is received. Dodge v. People, 4 Neb. 220 (1876); Burley v. State, 1 Neb. 385 (1871).
2. Misdemeanor
A person charged with a misdemeanor may, upon his request, be put on trial in his absence. Koop v. City of Omaha, 173 Neb. 633, 114 N.W.2d 380 (1962).
In a misdemeanor case, presence of defendant when verdict is received may be waived. Hyslop v. State, 159 Neb. 802, 68 N.W.2d 698 (1955).
Defendant, charged with misdemeanor, who voluntarily absents himself from courtroom when jury returns verdict, his counsel being present, waived right to be present. Peterson v. State, 64 Neb. 875, 90 N.W. 964 (1902).
3. Miscellaneous
A defendant waived the right to be present at trial by voluntarily leaving the courtroom during witness testimony. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
A defendant may waive his or her rights under this section through his or her knowing and voluntary absence at trial. State v. Zlomke, 268 Neb. 891, 689 N.W.2d 181 (2004).
Defendant has a right to be present at all times when any proceeding is taken during trial, but that right may be waived, and only by the defendant, personally. State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991).
Defendant has no right in common law or the Constitution to be present in chambers while jury instructions are formulated by counsel and the trial judge. State v. Bear Runner, 198 Neb. 368, 252 N.W.2d 638 (1977).
Presence of accused at trial being once shown by record is presumed to have continued unless contrary is made to appear. Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897).
Section does not apply to hearings on motions and demurrers before commencement of trial. Miller v. State, 29 Neb. 437, 45 N.W. 451 (1890).
Voluntary unnoticed absence of prisoner during examination of witness where witness was reexamined upon prisoner's return, was not ground for new trial. Hair v. State, 16 Neb. 601, 21 N.W. 464 (1884).
View of scene of crime should be made in presence of accused. Fillion v. State, 5 Neb. 351 (1877); Carroll v. State, 5 Neb. 31 (1876).
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
1. Consolidation
2. Right to separate trial
3. Motion for separate trial
4. Miscellaneous
1. Consolidation
Joined charges do not usually result in prejudice if the evidence is sufficiently simple and distinct for the jury to easily separate evidence of the charges during deliberations. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
The question of whether offenses were properly joined involves a two-stage analysis: (1) whether the offenses were sufficiently related to be joinable and (2) whether the joinder was prejudicial to the defendant. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
Joinder of murder and pandering charges was proper because the evidence was such that the jury could have easily separated evidence of the charges during deliberations. State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
To determine whether the charges joined for trial are of the same or similar character, an appellate court considers whether the underlying factual allegations supporting the separate charges are of the same or similar character. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Under this section, an appellate court applies a two-part analysis to determine whether offenses were properly joined at trial. First, it determines whether the offenses were related and joinable, and then it determines whether an otherwise proper joinder was prejudicial to the defendant. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Where all the charges against the defendant involved allegations of sexual misconduct with minors for whom he occupied a position of trust, the charges were joinable under subsection (1) of this section because they were of the same or similar character. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).
In a murder case, the fact that one codefendant was defending against the charge of aiding and abetting the other codefendant in committing the underlying crime does not necessarily create mutually exclusive defenses sufficient to mandate severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
The fact that codefendants in a murder case each accused the other of being the shooter is not sufficient by itself to create mutually exclusive defenses sufficient to mandate severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
The mere claim of antagonistic defenses is not a sufficient reason for separate trials of codefendants in a murder case. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
When considering whether the trials of codefendants should be severed, the existence of mutually antagonistic defenses is not prejudicial per se. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
Where codefendants in a murder case each accused the other of being the shooter and there were other possible shooters, the codefendants did not have mutually exclusive defenses that resulted in sufficient prejudice to require severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
A defendant is not considered prejudiced by a joinder where the evidence relating to both offenses would be admissible in a trial of either offense separately. State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
The propriety of a joint trial involves two questions: Whether there were appropriate grounds for consolidation and whether such consolidation would prejudice the defendant. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).
The propriety of a joint trial involves two questions: whether the consolidation is proper because defendants could have been joined in the same indictment or information and whether there was a right to severance because defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995).
If the offenses charged are of the same or similar character, or are based on the same act or transaction, the offenses may be joined in one trial. State v. Lewis, 241 Neb. 334, 488 N.W.2d 518 (1992).
Joinder or consolidation is not prejudicial error where evidence relating to both offenses would have been admissible in a trial of either offense separately. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990).
If the offenses involved were of the same or similar character, they can be joined in one information, and the trial court can order that they be tried together. State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990).
Subsection (3) of this section allows the joinder of criminal defendants for trial if the defendants could have been joined in a single indictment, information, or complaint. State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987).
The joinder of criminal defendants in an indictment or information is governed by subsection (2) of this section, which allows joinder if the defendants "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." State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987).
If the offenses charged are of the same or similar character, or are based on the same act or transaction, the offenses may be joined in one trial. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987).
Offenses of the same or similar character may be joined in one information and tried together. State v. McGuire, 218 Neb. 511, 357 N.W.2d 192 (1984).
Joinder is only permissible if the defendants 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, which means that the two charges are so closely linked in time, place, and circumstance that a complete account of one charge cannot be related without relating details of the other charge or where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge. A trial court may not consolidate defendants' cases for trial if this section does not permit joinder of those same defendants in a single indictment and, in those cases where defendants have been improperly consolidated for trial, such action is prejudicial per se and severance is not a matter of discretion but is a matter of right. State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982).
Where evidence relating to both offenses would have been admissible in a separate trial of either offense, joinder of offenses is permissible, even though offenses occurred ninety days apart. State v. Walker, 200 Neb. 273, 263 N.W.2d 454 (1978).
Where defendants acted together in offense charged, consolidation of their cases for trial is proper in absence of a showing of prejudice. State v. Boyce, 194 Neb. 538, 233 N.W.2d 912 (1975); State v. Saltzman, 194 Neb. 525, 233 N.W.2d 914 (1975).
Cases may be consolidated for trial if the offenses charged are based on the same act or transaction. State v. Shiller, 191 Neb. 291, 214 N.W.2d 616 (1974).
Cases may be consolidated for trial if the offenses charged are based on the same act or transaction. State v. Shimp, 190 Neb. 137, 206 N.W.2d 627 (1973).
Ruling of court upon motion for consolidation of criminal prosecutions properly joinable in a single information will not be disturbed in absence of abuse of discretion. State v. Bazer, 189 Neb. 711, 204 N.W.2d 799 (1973).
When the offenses charged are of the same or similar character or are based on the same act or transaction or on connected acts, they may be joined. If it appears that such joinder would prejudice defendant, the court may order an election for separate trials of the counts. State v. Rodgers, 186 Neb. 633, 185 N.W.2d 448 (1971).
Joint trial of codefendants is authorized. State v. Knecht, 181 Neb. 149, 147 N.W.2d 167 (1966).
Separate informations charging each of defendants with one robbery may be consolidated for trial. State v. Wilson, 174 Neb. 86, 115 N.W.2d 794 (1962).
2. Right to separate trial
While subsections (1) and (3) of this section present different questions, it is clear that there is no error under either subsection if joinder was not prejudicial. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
A defendant has no constitutional right to a separate trial on different charges. Instead, this section controls the joinder or separation of charges for trial. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
A defendant opposing joinder of charges has the burden of proving prejudice. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Generally, a defendant must show that the court’s refusal to sever the offenses caused severe and specified prejudice in his or her trial, not merely a better chance of acquittal in separate trials. Moreover, absent a showing of substantial prejudice, spillover of evidence from one count to another does not require severance. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Prejudice is not shown if evidence of one charge would have been admissible in a separate trial of another charge. Additionally, prejudice usually does not occur from joined charges if the evidence is sufficiently simple and distinct for the jury to easily separate evidence of the charges during deliberations. This is particularly true where the trial court specifically instructs the jury to separately consider the evidence for each offense. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
The defendant failed to show prejudice from joined charges where (1) the evidence supporting each charge was simple and distinct so that the jury could separate the charges and associated evidence, instead of combining evidence of other charges to find guilt that it would not have found if the court had ordered separate trials; (2) the trial judge specifically instructed the jury that it was to keep the charges separate and come to a separate decision regarding each charge; and (3) the jury found the defendant guilty of some charges but not others, showing that it actually separated the evidence and offenses. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Charges of one count of first degree sexual assault of a child and four counts of child abuse were improperly joined together. First degree sexual assault is a crime of a different nature than child abuse, and the charged sexual assault occurred over a different time period than the alleged child abuse. The sexual assault charge was not based on the same act or transaction; only one of four child victims was sexually assaulted outside the presence of the other children while many of the alleged acts of child abuse occurred in the presence of multiple children. The record did not show the charges were part of an inferable common scheme or plan. Counsel was deficient in failing to oppose joinder of the charges, and counsel’s deficient performance prejudiced the defendant, warranting relief for ineffective assistance of counsel on direct appeal. State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).
Severance is not a matter of right, and a ruling of the trial court with regard thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
If the offenses charged are of the same or similar character or are based on the same act or transaction, the offenses may be joined in one trial. The right to separate trials is statutory and depends upon a showing that prejudice will result from a joint trial. The defendant bears the burden of proving that prejudice will result from a joint trial. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990).
Pursuant to subsections (2) and (3) of this section, two or more defendants may be tried together. There is no constitutional right to a separate trial, and a separate trial will only be granted upon a showing of prejudice. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
The trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed in the absence of an abuse of discretion. The right to separate trials is statutory and depends upon a showing that prejudice will result from a joint trial. The defendant bears the burden of proving that prejudice will result from a joint trial. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
The right to a separate trial is statutory, and depends upon a showing that prejudice will result from a joint trial. The burden is on the party challenging the joint trial to demonstrate how and in what manner he or she was prejudiced. State v. Clark, 228 Neb. 599, 423 N.W.2d 471 (1988).
Joinder of criminal defendants for trial in a manner inconsistent with this section is prejudicial per se, and severance is not a matter of discretion but a matter of right. State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987).
Even where prosecutions are otherwise properly consolidated for trial, court may grant separate trials upon showing prejudice will result from joint trial. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).
Right to separate trial depends upon showing that prejudice will result from joint trial. State v. Clark, 189 Neb. 109, 201 N.W.2d 205 (1972); State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966); State v. Erving, 180 Neb. 824, 146 N.W.2d 216 (1966).
There is no constitutional right to a separate trial. State v. Clark, 189 Neb. 109, 201 N.W.2d 205 (1972).
Defendants challenging a joint trial must affirmatively demonstrate that the joint trial has prejudiced their individual rights. State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972).
When the offenses charged are of the same or similar character or are based on the same act or transaction or on connected acts, they may be joined. If it appears that such joinder would prejudice defendant, the court may order an election for separate trials of the counts. State v. Rodgers, 186 Neb. 633, 185 N.W.2d 448 (1971).
Severance, under this section, is not a matter of right. State v. Foster, 183 Neb. 247, 159 N.W.2d 561 (1968).
Under 1957 amendment to this section, jointly charged defendants are not entitled to a separate trial as a matter of right. State v. Cook, 182 Neb. 684, 157 N.W.2d 151 (1968).
Right to separate trial is granted only to persons charged with felony and not to those jointly charged with misdemeanor. Nash v. State, 110 Neb. 712, 194 N.W. 869 (1923).
One, jointly indicted with others for a felony, is entitled to separate trial as a matter of right, if request is made in season. Reed v. State, 93 Neb. 163, 139 N.W. 1015 (1913).
Whether separate trials are required depends upon a defendant's showing that prejudice will result from a joint trial. State v. Dandridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993).
3. Motion for separate trial
A defendant appealing the denial of a motion to sever has the burden to show compelling, specific, and actual prejudice. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
There is no error under either subsection (1) or (3) of this section if joinder was not prejudicial, and a denial of a motion to sever will be reversed only if clear prejudice and an abuse of discretion are shown. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
A motion for a separate trial is addressed to the sound discretion of the trial court, and its ruling on such motion will not be disturbed on appeal absent a showing that the court abused its discretion. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Because Fed. R. Crim. P. 14(a) is the federal equivalent of subsection (3) of this section, Nebraska courts look to federal cases for guidance in determining whether a severance should be granted. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).
Severance is not a matter of right and a ruling of the trial court with regard thereto will not be disturbed in absence of showing of prejudice. State v. Nance, 197 Neb. 95, 246 N.W.2d 868 (1976).
A motion for separate trial in a criminal case is addressed to the sound discretion of the trial court. State v. Hall, 176 Neb. 295, 125 N.W.2d 918 (1964).
Motion for separate trial is addressed to sound discretion of trial court, and ruling thereon will not be disturbed in absence of abuse of discretion. State v. Brown, 174 Neb. 387, 118 N.W.2d 328 (1962).
Motion may be made either by prisoner or state and objection to severance is too late after jury is empaneled. Metz v. State, 46 Neb. 547, 65 N.W. 190 (1895).
4. Miscellaneous
A motion to revoke probation is not a criminal proceeding, and this section is not applicable. State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
When issues of prejudicial joinder and prejudicial failure to sever are not before the trial court, defendant cannot raise these issues on appeal. State v. Vance, 240 Neb. 794, 484 N.W.2d 453 (1992).
Joinder is not prejudicial error where evidence relating to both offenses would be admissible in a trial of either offense separately. State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990).
Separate offenses must be set out in separate counts in an information, but failure is cured by verdict when no objection was made. State v. French, 195 Neb. 88, 236 N.W.2d 832 (1975).
Requirement of showing prejudice met where confession of codefendant implicating appellant used in joint trial and both defendants were represented by same counsel. State v. Montgomery, 182 Neb. 737, 157 N.W.2d 196 (1968).
Court may refuse to allow prisoner's codefendant to be present at trial. Evidence is not inadmissible because it also tends to establish guilt of codefendant. Krens v. State, 75 Neb. 294, 106 N.W. 27 (1905).
Admission of extra-judicial confessions of codefendants found to be prejudicial and violative of defendant's right of cross-examination. Davis v. Sigler, 415 F.2d 1159 (8th Cir. 1969).
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
If several juries are picked at one time from a single jury panel for a series of trials, examination must be allowed if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973).
Where separate trials are held on joint indictment or information for commission of single offense, jurors who sat in trial of one defendant are disqualified to sit in trial of others. Seaton v. State, 106 Neb. 833, 184 N.W. 890 (1921).
Section applies only when two or more persons are charged in the same indictment and one has had a separate trial. Koenigstein v. State, 101 Neb. 229, 162 N.W. 879 (1917).
Provisions of this section are not exclusive. Aabel v. State, 86 Neb. 711, 126 N.W. 316 (1910); Barber v. State, 75 Neb. 543, 106 N.W. 423 (1906); Barney v. State, 49 Neb. 515, 68 N.W. 636 (1896).
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
Change of venue, criminal case pending in county with population of four thousand or less without adequate facilities for jury trials, see section 25-412.01.
For drawing and selection of jurors, see Jury Selection Act, section 25-1644.
Annotations
1. Discharge
2. Miscellaneous
1. Discharge
A court may discharge a juror for cause after it learned that the defendant's affiliate attempted to talk to the juror during the trial and the juror provided conflicting testimony when questioned about the event. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
In a trial for first degree sexual assault, the trial court had discretion to discharge a juror following the close of evidence given the following facts: (1) the juror, on the first day of trial after the jury was sworn, alerted the court of his reluctance to serve on the jury given his upbringing and criminal history; (2) the court had questioned the juror and determined that the juror could remain impartial; (3) the court, after giving its instructions, sua sponte, raised concerns about the juror's lack of attentiveness during trial; and (4) the juror's criminal record, which the State proffered in support of its motion for discharge, indicated that the juror had misrepresented his criminal history in the juror qualification form. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
This section, governing the discharge of a juror after the jury is sworn, and not section 29-2006, which governs the disqualification of a juror for cause before the jury is sworn, governed the State's motion to "strike" the juror for cause after trial began. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
Under this section, a court may discharge a regular juror because of sickness and replace him or her with an alternate juror. State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009).
In a trial for attempted murder, assault, and other crimes, a juror who was mistakenly seated on the jury despite having been stricken by the State was a "regular juror," within the meaning of this section, and thus, the juror could be replaced by an alternate when the mistake was discovered. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).
Under this section, a trial court may replace a juror with an alternate juror after finding that the original juror could not be fair and impartial. State v. Smith, 13 Neb. App. 404, 693 N.W.2d 587 (2005).
2. Miscellaneous
On the State's motion at the close of evidence to strike a seated juror for cause, in a prosecution for first degree sexual assault, the State had the burden to show that the challenged juror was biased, was engaged in misconduct, or was otherwise unable to continue to serve. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
When a defendant, through diligence, is able to discover a reason to challenge a juror, the objection to the juror must be made at the time of voir dire. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
Verdict of jury will be set aside where evidence is clearly insufficient to sustain it. Prichard v. State, 135 Neb. 522, 282 N.W. 529 (1938).
Accused cannot waive right to trial by jury. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904).
Challenge to array or motion to quash panel must be in writing and should point out grounds relied upon. Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902).
Jurors may be summoned for trial of criminal case when no regular panel is present. Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898).
In criminal trials, jurors are not judges of the law. Parrish v. State, 14 Neb. 60, 15 N.W. 357 (1883).
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
Depriving a defendant in a criminal proceeding of the peremptory challenges to which he or she is statutorily entitled is structural error. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
Where two or more offenses are properly joined, a trial court does not err in limiting the defendant to the number of peremptory challenges statutorily available for the most serious of the offenses, and a defendant is not entitled to additional peremptory challenges because the indictment charges separate offenses in separate counts. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
Where imprisonment authorized was for a period of one year, only three peremptory challenges could be demanded. State v. Abboud, 181 Neb. 84, 147 N.W.2d 152 (1966).
Counsel have right to put pertinent questions on voir dire examination of jurors to aid in the exercise of right of peremptory challenge. Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958).
Order of exercise of peremptory challenges rested in discretion of trial court. Callies v. State, 157 Neb. 640, 61 N.W.2d 370 (1953); Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953).
Where both state and defendant waived peremptory challenge, objection to disqualification of juror who had read newspaper article was waived. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Peremptory challenges are not to be exercised until jurors have been passed for cause. Fetty v. State, 119 Neb. 619, 230 N.W. 440 (1930); Mathes v. State, 107 Neb. 212, 185 N.W. 425 (1921); Rutherford v. State, 32 Neb. 714, 49 N.W. 701 (1891).
Order in which challenges shall be made is left to sound discretion of trial court. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911); Gravely v. State, 45 Neb. 878, 64 N.W. 452 (1895).
Failure to exercise right of peremptory challenge is waiver of any disqualification then known to exist. Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897); Curran v. Percival, 21 Neb. 434, 32 N.W. 213 (1887).
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
1. Capital punishment
2. Opinion of juror
3. Relation to defendant
4. Other grounds
5. Miscellaneous
1. Capital punishment
A court cannot determine whether a juror should be challenged for cause in accordance with subsection (3) of this section without advising a juror of the possible punishments and asking the juror his or her opinion on capital punishment. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
Subsection (3) of this section allows courts to question jurors about their beliefs regarding the death penalty. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
In a capital case, it is entirely permissible to exclude from jury service venirepersons whose views on capital punishment are such as to prevent or substantially impair their ability to impartially apply the law to the evidence. State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).
Pursuant to subsection (3) of this section, it is good cause to challenge one called for jury service in a capital case if his or her opinions are such as to prevent "finding the accused guilty"; thus, the venire may be examined to determine whether any juror has conscientious scruples against capital punishment such as to prevent or substantially impair the performance of his or her duties as a juror. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).
A venireperson whose views on capital punishment are such as to prevent or substantially impair the performance of his or her duties as a juror may, under this provision, be constitutionally excused from jury service in a capital case. State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987).
A juror who opposes the death penalty may still be eligible to serve as a juror in a capital case as long as such juror is able and does swear to decide guilt or innocence on the evidence and law as given in the jury instructions. A juror who has indicated an inability to fairly and impartially determine guilt by refusing to subordinate his or her own personal views and obey the law of the state must be excused for cause. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).
If juror has conscientious scruples against inflicting death penalty in murder case, he may be excused on challenge by state. Sharp v. State, 117 Neb. 304, 220 N.W. 292 (1928).
Statement of juror, on trial of defendant charged with murder in first degree, that he would not join in verdict of guilty with death penalty, renders him incompetent. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911).
Right of person charged with capital offense to examine jurors on competency should not be unreasonably obstructed. Wilson v. State, 87 Neb. 638, 128 N.W. 38 (1910).
State's attorney may ask juror on examination if he has conscientious scruples against capital punishment. Taylor v. State, 86 Neb. 795, 126 N.W. 752 (1910).
Mere sentimental feelings against death punishment is not sufficient; juror must be so prejudiced against it that opinion would preclude him from finding defendant guilty. Haddix v. State, 76 Neb. 369, 107 N.W. 781 (1906); Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1902).
Provision making conscientious scruples against death penalty a ground of challenge for cause was not repealed by amendment of 1893, conferring on jury discretion to fix punishment for first degree murder at life imprisonment instead of death. Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894).
Statement of juror that his convictions are such as would preclude conviction of guilty on circumstantial evidence, when punishment is death, is ground for challenge. St. Louis v. State, 8 Neb. 405, 1 N.W. 371 (1879).
2. Opinion of juror
Under subdivision (2) of this section, only if the juror's opinion was formed based upon conversations with witnesses of the transactions or reading reports of their testimony or hearing them testify is dismissal of the juror for cause mandatory. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
The district court did not err in retaining jurors who expressed opinions of guilt, which were not founded on witness testimony, and who testified they could render an impartial verdict. State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
Subsection (3) of this section allows a juror to be successfully challenged for cause on the basis of his or her opinions regarding the death penalty only in those cases in which those opinions would prevent the juror from impartially weighing the evidence and reaching a conclusion as to the defendant's guilt or innocence on the basis of the evidence presented. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
Opinion of juror based on reading newspapers did not disqualify him. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959).
Voir dire examination furnishes a defendant ample opportunity to establish whether prospective jurors have been prejudiced by newspaper articles. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951).
Opinion based upon newspaper reports does not afford cause for challenge, where it is shown that same will not interfere with juror in rendering fair and impartial verdict upon evidence, under instructions of the court. Ringer v. State, 114 Neb. 404, 207 N.W. 928 (1926); King v. State, 108 Neb. 428, 187 N.W. 934 (1922); Bridges v. State, 80 Neb. 91, 113 N.W. 1048 (1907).
Juror, having formed opinion, is not disqualified in view of statement that he would disregard opinion and return fair and impartial verdict. King v. State, 108 Neb. 428, 187 N.W. 934 (1922).
Where juror answers that evidence is necessary to remove opinion, such fact will not disqualify him, if opinion formed, and he is otherwise qualified, in accordance with statute. Whitcomb v. State, 102 Neb. 236, 166 N.W. 553 (1918).
Challenge for cause, where juror has formed opinion founded on reading testimony of witnesses, should be sustained; statute is mandatory. Flege v. State, 93 Neb. 610, 142 N.W. 276 (1913).
Mere fact that juror, otherwise competent, had feeling that white race was superior to colored race, of which defendant was one, did not render him incompetent. Johnson v. State, 88 Neb. 565, 130 N.W. 282 (1911).
Hypothetical opinion, based solely on rumor and newspaper reports, may not disqualify. Barker v. State, 73 Neb. 469, 103 N.W. 71 (1905); Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing, 68 Neb. 181, 104 N.W. 154 (1905); Rottman v. State, 63 Neb. 648, 88 N.W. 857 (1902); Ward v. State, 58 Neb. 719, 79 N.W. 725 (1899).
Juror is incompetent when he says it will require some evidence to remove his opinion, though he may also state that he can render impartial verdict under law and evidence. Owens v. State, 32 Neb. 167, 49 N.W. 226 (1891).
Where juror answered he had no bias or prejudice against defendant, it was not error to sustain objections to other questions seeking to elicit remarks made about defendant. Gandy v. State, 27 Neb. 707, 43 N.W. 747, 44 N.W. 108 (1889).
Juror, who admits having opinion, and does not state that he could render fair and impartial verdict, is incompetent. Thurman v. State, 27 Neb. 628, 43 N.W. 404 (1889).
To render a juror incompetent in a criminal case on the ground of an opinion formed or expressed, it must appear that opinion was in reference to guilt or innocence of defendant. Fillion v. State, 5 Neb. 351 (1877).
If venireman has formed opinion from reading testimony of witnesses, he is incompetent, though he swears to be able, notwithstanding, to render an impartial verdict on the law and evidence. Smith v. State, 5 Neb. 181 (1876).
3. Relation to defendant
Under subdivision (2) of this section, the mere fact that a prospective juror is personally acquainted with the victim or the victim's family does not automatically disqualify a person from sitting on a criminal jury. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
In prosecution for forging note payable to a bank, challenge to juror on ground that his wife and brother were depositors in bank was properly overruled. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934).
Juror, first cousin to accused, was properly excused as being a relation within fifth degree. Marion v. State, 20 Neb. 233, 29 N.W. 911 (1886).
4. Other grounds
Counsel has right to put pertinent questions to prospective jurors to ascertain if there is ground for challenge for cause. Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958).
This section furnishes ample opportunity to establish whether prospective jurors have been prejudiced by reading newspaper article. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Where competency of juror is challenged for first time after conviction, on ground that he had been convicted of felony and served term in penitentiary, such objection was waived. Reed v. State, 75 Neb. 509, 106 N.W. 649 (1906); Turley v. State, 74 Neb. 471, 104 N.W. 934 (1905).
Court must be satisfied that juror is impartial; that, notwithstanding his opinion, he will render impartial verdict upon law and evidence. Lucas v. State, 75 Neb. 11, 105 N.W. 976 (1905).
It is good cause for challenge that juror has served as juror in same court within two years. Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901).
Juror should be excused if court discovers least symptom of prejudice, though his formal answers bring him within letter of statutory qualification. Cowan v. State, 22 Neb. 519, 35 N.W. 405 (1887).
5. Miscellaneous
Section 29-2004, governing the discharge of a juror after the jury is sworn, and not this section, which governs the disqualification of a juror for cause before the jury is sworn, governed the State's motion to "strike" the juror for cause after trial began. State v. Huff, 298 Neb. 522, 905 N.W.2d 59 (2017).
Subsection (3) of this section does not violate either the 6th or the 14th Amendment to the U.S. Constitution. Subsection (3) of this section does not violate Article I, section 3, of the Nebraska Constitution. Subsection (3) of this section fully comports with the state constitutional provisions regarding impartial juries and due process found in Article I, sections 6 and 11. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
Failure to insist on a ruling on a challenge for cause waives error in the denial of that challenge. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
Subsection (3) of this section held constitutional and serves to ensure that the petit jury is impartial. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).
Death-qualified jury held constitutional. State v. Peery, 223 Neb. 556, 391 N.W.2d 566 (1986).
This section does not violate the sixth or fourteenth amendment to the U.S. Constitution. State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986).
If several juries are picked at one time from a single jury panel for a series of trials, examination must be allowed if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973).
Opportunity for prejudice or disqualification of juror is not sufficient to raise a presumption that they exist. Medley v. State, 156 Neb. 25, 54 N.W.2d 233 (1952); Fisher v. State, 154 Neb. 166, 47 N.W.2d 349 (1951).
Question of competency of veniremen to sit in trial of criminal cannot be raised by motion for continuance. Seaton v. State, 106 Neb. 833, 184 N.W. 890 (1921).
Error cannot be predicated on overruling challenge for cause, complaining party not having exhausted peremptory challenges. Kennison v. State, 83 Neb. 391, 119 N.W. 768 (1909); Brinegar v. State, 82 Neb. 558, 118 N.W. 475 (1908).
Proceedings relative to impaneling jury, to be reviewable, should be preserved by bill of exceptions. Shumway v. State, 82 Neb. 152, 117 N.W. 407 (1908), opinion modified in 82 Neb. 165, 119 N.W. 517 (1909).
If examination considered as whole, does not show incompetency, challenge is properly overruled. Keeler v. State, 73 Neb. 441, 103 N.W. 64 (1905).
Failure to interrogate juror as to residence is waiver of that objection. Hickey v. State, 12 Neb. 490, 11 N.W. 744 (1882).
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
This section does not bar examination and challenge for cause in subsequent trials in series even after jury is sworn if several juries are picked at one time from a single jury panel for a series of trials. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973).
All challenges for cause are decided by court. Rakes v. State, 158 Neb. 55, 62 N.W.2d 273 (1954).
In impaneling a jury, all challenges for cause are tried to the court. Lee v. State, 147 Neb. 333, 23 N.W.2d 316 (1946).
If cause of challenge is denied by juror on voir dire after accused's peremptory challenges are exhausted, accused has right to have issue tried and witnesses examined. Trobough v. State, 119 Neb. 128, 227 N.W. 443 (1929).
Decision of trial judge being based on consideration of all facts developed during examination, including appearance and actions of juror, will not be reversed unless clearly wrong. Bemis v. City of Omaha, 81 Neb. 352, 116 N.W. 31 (1908); Ward v. State, 58 Neb. 719, 79 N.W. 725 (1899).
Evidence relating to challenges to jurors cannot be considered unless settled and allowed by bill of exceptions. West v. State, 63 Neb. 257, 88 N.W. 503 (1901).
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
When defendants, being tried together, do not demand full number of challenges allowed, their rights thereto are waived. Nash v. State, 110 Neb. 712, 194 N.W. 869 (1923).
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
Trial court's journal entry reciting jury was sworn imports verity absent contrary proof. State v. Martin, 198 Neb. 811, 255 N.W.2d 844 (1977).
It is the duty of jury to endeavor to agree upon verdict; agreement by them to evade such duty is violation of oath. Green v. State, 10 Neb. 102, 4 N.W. 422 (1880).
Where record states that jury was sworn "to well and truly try and true deliverance make upon the issue joined between the parties," it is presumed that oath was administered in statutory form. Smith v. State, 4 Neb. 277 (1876).
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.
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.
Cross References
Legislative Council, committee investigations, see sections 50-404 to 50-409.
Annotations
A court is not obligated under this section to notify a defendant when the State offers a witness immunity. State
v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
The language of this section, and the case law interpreting it, provides that because the Legislature has given
courts the power to immunize a witness solely upon the request of the prosecutor, it is not a power the court can
exercise upon the request of the defendant or upon its own initiative. State v. Lierman, 305 Neb. 289, 940 N.W.2d
529 (2020).
This section does not require that the invocation of privilege be done before a jury in order for immunity to be granted. State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
Trial courts in Nebraska do not have inherent authority to confer immunity. In a criminal proceeding, a court's authority to grant immunity to a witness who refuses to testify on the basis of the privilege against self-incrimination comes from this section. State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
This section does not authorize a grant of immunity to any witness except upon the motion of the prosecuting attorney. State v. Starks, 229 Neb. 482, 427 N.W.2d 297 (1988).
Where a defendant has testified in a previous criminal case under a lawful grant of immunity, the sentencing court in a subsequent criminal case cannot consider such testimony or any information directly or indirectly derived from it in determining whether a death sentence should be imposed under the provisions of section 29-2523 and related statutes. State v. Jones, 213 Neb. 1, 328 N.W.2d 166 (1982).
Absent a motion from the prosecuting attorney, a trial court does not have the authority to grant immunity to a witness under this section. State v. Sanchez-Lahora, 9 Neb. App. 621, 616 N.W.2d 810 (2000).
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.
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
When separate trials are awarded to parties jointly indicted, each is a competent witness for the state upon the trial of other, without being first acquitted, and without entry of nolle prosequi. Carroll v. State, 5 Neb. 31 (1876).
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
An information charging conspiracy to commit robbery satisfied the overt act requirement by alleging robbery as both the object of conspiracy and the overt act committed in pursuance thereof. State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022).
In trials for conspiracy where an overt act is required by law to consummate the offense, a specific overt act must be alleged. An allegation that a person committed an overt act is not adequate. State v. Marco, 230 Neb. 355, 432 N.W.2d 1 (1988).
Doing of overt act by one or more of the conspirators is essential to conviction on charge of conspiracy. Beyl v. State, 165 Neb. 260, 85 N.W.2d 653 (1957).
An overt act effecting the object of a conspiracy is a necessary element of conspiracy. Platt v. State, 143 Neb. 131, 8 N.W.2d 849 (1943).
Mere tacit understanding to work to common unlawful purpose is all that is essential to guilty combination. Deupree v. Thornton, 97 Neb. 812, 151 N.W. 305 (1915), reversed on rehearing, 98 Neb. 804, 154 N.W. 557 (1915).
Conspiracy cannot be established by admissions alone of coconspirator who is not a party to record. State v. Merchants Bank, 81 Neb. 704, 116 N.W. 667 (1908); O'Brien v. State, 69 Neb. 691, 96 N.W. 649 (1903).
For rules as to proof of conspiracy in civil cases see Harvey v. Harvey, 75 Neb. 557, 106 N.W. 660 (1906); Farley v. Peebles, 50 Neb. 723, 70 N.W. 231 (1897).
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
1. Instructions
2. Opening statement
3. Misconduct
4. Admissibility of evidence
5. Procedure
1. Instructions
Defendant may not predicate error on an instruction that is more favorable to him than is required by law. Stump v. State, 132 Neb. 49, 271 N.W. 163 (1937).
Proper time to submit requested instructions is as early in trial as possible, but not later than close of evidence. Whitehall v. Commonwealth Casualty Co., 125 Neb. 16, 248 N.W. 692 (1933).
It is the court's duty, on own motion, to instruct as to general rules of law; instruction desired should be submitted in writing. Osborne v. State, 115 Neb. 65, 211 N.W. 179 (1926).
Examples of instructions on "reasonable doubt" given. Stehr v. State, 92 Neb. 755, 139 N.W. 676 (1913); Brown v. State, 88 Neb. 411, 129 N.W. 545 (1911); Clements v. State, 80 Neb. 313, 114 N.W. 271 (1907); Atkinson v. State, 58 Neb. 356, 78 N.W. 621 (1899); Maxfield v. State, 54 Neb. 44, 74 N.W. 401 (1898); Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898); Ferguson v. State, 52 Neb. 432, 72 N.W. 590 (1897).
It is not error to refuse requested instruction when substance of it has been given. Graham v. State, 90 Neb. 658, 134 N.W. 249 (1912); Lillie v. State, 72 Neb. 228, 100 N.W. 316 (1904).
Instruction should be applicable to precise question being tried. Flege v. State, 90 Neb. 390, 133 N.W. 431 (1911).
Instructions on burden of proof where defense is insanity discussed. Davis v. State, 90 Neb. 361, 133 N.W. 406 (1911); Knights v. State, 58 Neb. 225, 78 N.W. 508 (1899); Snider v. State, 56 Neb. 309, 76 N.W. 574 (1898).
Where circumstances surrounding homicide are proved, it is error to instruct that malice will be implied from killing. Davis v. State, 90 Neb. 361, 133 N.W. 406 (1911).
Instruction on credibility of informers will not ordinarily apply to a county attorney, sheriff, or his deputy. Keezer v. State, 90 Neb. 238, 133 N.W. 204 (1911).
Erroneous instruction, legal effect of which is practically same as one given on request of defendant, is generally not ground for reversal, unless clearly prejudicial to defendant. Coffman v. State, 89 Neb. 313, 131 N.W. 616 (1911).
Trial court in giving instruction may describe offense in language of statute. Jones v. State, 87 Neb. 390, 127 N.W. 158 (1910).
If court in its instructions purports to copy a section of criminal code, quotation should be correct. Boyer v. State, 84 Neb. 407, 121 N.W. 445 (1909).
If an instruction is given when no testimony sustains it, and prejudice results, new trial will be granted. Parker v. State, 76 Neb. 765, 108 N.W. 121 (1906).
It is duty of court to instruct as to rules of law governing disposition of criminal case whether requested or not. Young v. State, 74 Neb. 346, 104 N.W. 867 (1905); Martin v. State, 67 Neb. 36, 93 N.W. 161 (1903).
Instructions must not conflict, must be construed together, and correctly state law. Higbee v. State, 74 Neb. 331, 104 N.W. 748 (1905); Bartley v. State, 53 Neb. 310, 73 N.W. 744 (1898).
Where jury is not required to fix punishment, court's refusal to instruct as to penalty prescribed, or to permit that question to be argued to jury, is proper. Edwards v. State, 69 Neb. 386, 95 N.W. 1038 (1903).
Instruction on circumstantial evidence approved. Lamb v. State, 69 Neb. 212, 95 N.W. 1050 (1903); Cunningham v. State, 56 Neb. 691, 77 N.W. 60 (1898).
Instructions should be construed as a whole; one having no foundation in evidence is properly refused. Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1902).
Instructions, purporting to cover whole case, which fail to include all elements involved in issue, are erroneous. Dobson v. State, 61 Neb. 584, 85 N.W. 843 (1901); Bergeron v. State, 53 Neb. 752, 74 N.W. 253 (1898).
Instruction which casts burden on defendant to prove defense is erroneous. Howell v. State, 61 Neb. 391, 85 N.W. 289 (1901).
Instruction to jury that oath imposes no obligation to doubt where no doubt would have existed if no oath had been administered, and that they are not at liberty to disbelieve as jurors, if from the evidence they believe as men, was proper. Leisenberg v. State, 60 Neb. 628, 84 N.W. 6 (1900).
Failure to number instructions is not reversible error if not excepted to when charge is given. Kastner v. State, 58 Neb. 767, 79 N.W. 713 (1899).
Instruction as to credibility of witnesses, and refusal to give instruction which would have effect of withdrawing consideration of material evidence, discussed and sustained. Chezem v. State, 56 Neb. 496, 76 N.W. 1056 (1898).
Assumption of facts stipulated as true by defendant, and instruction as to legal effect, was proper. Pisar v. State, 56 Neb. 455, 76 N.W. 869 (1898).
Instruction on drunkenness as defense discussed. Latimer v. State, 55 Neb. 609, 76 N.W. 207 (1898).
Quotation of main portion of section under which prosecution was instituted was not misleading. Instruction as to consideration of circumstances was proper. Mills v. State, 53 Neb. 263, 73 N.W. 761 (1898).
Objection to instruction, because it contains two or more propositions, will not be considered, when made for first time in Supreme Court. Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897).
Instruction, that burden is on accused to establish an alibi, is erroneous. Beck v. State, 51 Neb. 106, 70 N.W. 498 (1897).
Error in refusal to give proffered instruction must affirmatively appear from inspection of entire record. Lauder v. State, 50 Neb. 140, 69 N.W. 776 (1897).
Instructions must be applicable to facts, as well as a correct statement of law; to make failure to give instruction prejudicial, proper one must be submitted. Wells v. State, 47 Neb. 74, 66 N.W. 29 (1896).
Instruction is erroneous if it infringes on province of jury or tends to shift burden of proof to accused. Haskins v. State, 46 Neb. 888, 65 N.W. 894 (1896).
Instruction reciting material evidence which is not before jury is error. Williams v. State, 46 Neb. 704, 65 N.W. 783 (1896).
Instruction, submitting question of fact material to issue, when there is no evidence to support finding of its existence, is error. Morearty v. State, 46 Neb. 652, 65 N.W. 784 (1896).
Instructions on larceny, and reasonable doubt, discussed. Lawhead v. State, 46 Neb. 607, 65 N.W. 779 (1896).
It is error to give instruction which assumes a material fact, evidence thereon being conflicting. Metz v. State, 46 Neb. 547, 65 N.W. 190 (1895).
Repetition of proposition of law, not of such character as to prejudice rights of accused, was not reversible error. Dixon v. State, 46 Neb. 298, 64 N.W. 961 (1895).
2. Opening statement
A prosecutor states a case as contemplated by this section when he or she outlines the nature of the proceeding against the defendant. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).
Opening statement of county attorney was a sufficient compliance with statute. Morris v. State, 109 Neb. 412, 191 N.W. 717 (1922).
Defendant may waive opening statement to jury. Pumphrey v. State, 84 Neb. 636, 122 N.W. 19 (1909).
It is competent for county attorney, before introduction of evidence, to outline evidence which state expects to produce. Russell v. State, 62 Neb. 512, 87 N.W. 344 (1901).
3. Misconduct
Alleged misconduct of officers in giving statements to newspaper reporters during trial is not ground for new trial unless prejudice is shown. Rogers v. State, 93 Neb. 554, 141 N.W. 139 (1913).
Objection that prosecuting attorney is guilty of misconduct at the trial, prejudicial to defendant, must be taken at the time. It is primarily a question for trial court. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
Arguments and insinuations not based upon competent evidence are improper. Kanert v. State, 92 Neb. 14, 137 N.W. 975 (1912).
To review ruling on alleged misconduct of counsel, it must be excepted to at time. Hanks v. State, 88 Neb. 464, 129 N.W. 1011 (1911).
In reviewing alleged misconduct of county attorney, decision by trial judge on conflicting evidence will not be disturbed unless clearly wrong. Holmes v. State, 82 Neb. 406, 118 N.W. 99 (1908); Harris v. State, 80 Neb. 195, 114 N.W. 168 (1907).
Adverse ruling and exception thereto must be shown to review ruling on misconduct of attorney in arguing case. Hamblin v. State, 81 Neb. 148, 115 N.W. 850 (1908).
Misconduct of counsel, so flagrant that neither retraction nor rebuke from court can entirely destroy its influence, is cause for new trial. Parker v. State, 67 Neb. 555, 93 N.W. 1037 (1903).
Prosecuting attorney should not state to jury his belief in guilt of accused, unless based on evidence. Reed v. State, 66 Neb. 184, 92 N.W. 321 (1902).
4. Admissibility of evidence
The trial court may in its discretion permit evidence in rebuttal which is not strictly rebuttal evidence. State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977); State v. Keith, 189 Neb. 536, 203 N.W.2d 500 (1973).
It is within discretion of trial court to permit introducing of evidence in rebuttal that is not strictly rebutting and may permit state to offer further evidence-in-chief for good reason and in furtherance of justice. State v. Howard, 184 Neb. 461, 168 N.W.2d 370 (1969).
On rebuttal, court may permit evidence of confession. Drewes v. State, 156 Neb. 319, 56 N.W.2d 113 (1952).
It is within the discretion of the trial court to permit in rebuttal the introduction of evidence not strictly rebutting. Hampton v. State, 148 Neb. 574, 28 N.W.2d 322 (1947).
Trial judge, in ruling upon objections to evidence, should refrain from expressing opinion concerning weight of evidence or credibility of witness. Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910).
Plea of guilty entered at preliminary upon advice of officer cannot be received in evidence over objections of defendant. Heddendorf v. State, 85 Neb. 747, 124 N.W. 150 (1910).
Sufficiency of evidence, identifying defendant as perpetrator of crime, discussed. Buckley v. State, 79 Neb. 86, 112 N.W. 283 (1907).
Court may permit a party to reopen case and introduce other evidence before close of trial. Blair v. State, 72 Neb. 501, 101 N.W. 17 (1904).
Evidence admitted without objection, not necessarily injurious to defendant, is without prejudice. Lillie v. State, 72 Neb. 228, 100 N.W. 316 (1904).
Test of admissibility of confession stated. State v. Force, 69 Neb. 162, 95 N.W. 42 (1903); Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902).
Confession, voluntarily made, is admissible when not prompted by any inducement. McNutt v. State, 68 Neb. 207, 94 N.W. 143 (1903); Reinoehl v. State, 62 Neb. 619, 87 N.W. 355 (1901); Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901); Hills v. State, 61 Neb. 589, 85 N.W. 836 (1901).
Prior statements of accused, as to how crime might be committed, were properly admitted. Keating v. State, 67 Neb. 560, 93 N.W. 980 (1903).
Witness may be asked if he has known of defendant being arrested, defendant having offered evidence of good character. McCormick v. State, 66 Neb. 337, 92 N.W. 606 (1902).
Where expert witnesses testify to manner and cause of death, and refer to and use exhibits, it is proper to admit exhibits. Savary v. State, 62 Neb. 166, 87 N.W. 34 (1901).
Every fact which implies defendant's guilt is pertinent evidence to sustain such hypothesis. Jerome v. State, 61 Neb. 459, 85 N.W. 394 (1901).
It is error to exclude evidence, tendency of which is to put an innocent look upon inculpatory circumstances. Burlingim v. State, 61 Neb. 276, 85 N.W. 76 (1901).
Prior inconsistent statements of witness may be shown in rebuttal, to affect credibility. Tatum v. State, 61 Neb. 229, 85 N.W. 40 (1901).
Submission to jury of theory which has no basis in evidence is error. Thompson v. State, 61 Neb. 210, 85 N.W. 62 (1901).
Testimony of similar acts by defendant may be received to establish intent only. Knights v. State, 58 Neb. 225, 78 N.W. 508 (1899); Morgan v. State, 56 Neb. 696, 77 N.W. 64 (1898).
Order of introducing testimony will not prevent defendant from introducing evidence to impeach witness used on rebuttal by state. Argabright v. State, 56 Neb. 363, 76 N.W. 876 (1898).
Error cannot be predicated on admission of facts subsequently admitted. Whitney v. State, 53 Neb. 287, 73 N.W. 696 (1898).
Objections to admission of testimony must be made at trial, and ruling had thereon. Dutcher v. State, 16 Neb. 30, 19 N.W. 612 (1884).
5. Procedure
The appropriate procedure for closing arguments in criminal cases is provided by subsection (6) of this section. The trial court did not err in refusing to grant surrebuttal argument to the defendant, who had the burden of proof on the issue of insanity. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).
Order of proof is discretionary with the trial court. Small v. State, 165 Neb. 381, 85 N.W.2d 712 (1957).
Cautionary direction need not be in writing. Schriner v. State, 155 Neb. 894, 54 N.W.2d 224 (1952).
Order in which a party shall introduce his proof is, to great extent, discretionary with trial judge, and court's action will not be reversed unless abuse of discretion is shown. Hukill v. State, 109 Neb. 279, 190 N.W. 867 (1922); Joyce v. State, 88 Neb. 599, 130 N.W. 291 (1911); Baer v. State, 59 Neb. 655, 81 N.W. 856 (1900).
In larceny case, it is discretionary to permit state to withdraw announcement of rest, and prove ownership. Kurpgeweit v. State, 97 Neb. 713, 151 N.W. 172 (1915).
County attorney under direction of court may procure the assistance of counsel to prosecute person charged with felony. McKay v. State, 90 Neb. 63, 132 N.W. 741 (1911); Johns v. State, 88 Neb. 145, 129 N.W. 247 (1910).
Permission to put leading questions to witnesses of a party, where they appear hostile or unwilling, is in discretion of trial court. Ainlay v. State, 89 Neb. 721, 132 N.W. 120 (1911).
In trial for felony, prosecution should examine in first instance witnesses who have knowledge of res gestae. Johnson v. State, 88 Neb. 328, 129 N.W. 281 (1911).
Order permitting separation of jury in murder case for period of twenty-one days on account of quarantine of defendant's witnesses was not prejudicial error. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910).
Credibility of defendant as witness is tested by same rule as applied to other witnesses. Holmes v. State, 85 Neb. 506, 123 N.W. 1043 (1909).
Answer, responsive to question asked, should not be stricken from record. Fouse v. State, 83 Neb. 258, 119 N.W. 478 (1909).
Right to cross-examine is confined to matters brought out in direct examination. Poston v. State, 83 Neb. 240, 119 N.W. 520 (1909).
On trial for felony, court may, in his discretion, exclude from courtroom all witnesses for state who are not being examined. Maynard v. State, 81 Neb. 301, 116 N.W. 53 (1908).
Court may, in exercise of reasonable discretion, limit number of witnesses testifying to a fact, where a number have already testified thereto, and fact is not in dispute. Cate v. State, 80 Neb. 611, 114 N.W. 942 (1908).
Dying declaration, in prosecution for homicide by procuring an abortion, admitted. Edwards v. State, 79 Neb. 251, 112 N.W. 611 (1907).
Where it appears to court that a juror has failed to hear part of the evidence, witness should be required to repeat that part which juror failed to hear. Haddix v. State, 76 Neb. 369, 107 N.W. 781 (1906).
It is error for judge to absent himself from courtroom, out of sight and hearing of parties, during the argument of counsel. Powers v. State, 75 Neb. 226, 106 N.W. 332 (1905); Palin v. State, 38 Neb. 862, 57 N.W. 743 (1894).
Trial court has large though not unlimited discretion in granting or refusing permission to ask leading questions. Woodruff v. State, 72 Neb. 815, 101 N.W. 1114 (1904); Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).
Where party is cross-examined on a collateral matter, he cannot be subsequently contradicted as to his answer. Ferguson v. State, 72 Neb. 350, 100 N.W. 800 (1904).
Moral insanity as a defense is not recognized in this state. Bothwell v. State, 71 Neb. 747, 99 N.W. 669 (1904).
Length of time jury should be kept together rests in discretion of trial court. Jahnke v. State, 68 Neb. 154, 94 N.W. 158 (1903), reversed on rehearing 68 Neb. 181, 104 N.W. 154 (1905).
Nonexpert may give opinion in regard to a matter, which men in general are capable of comprehending, when it is impossible to lay before jury all pertinent facts as witness saw it. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Trial court may limit number of witnesses to prove facts collateral to main issue. Biester v. State, 65 Neb. 276, 91 N.W. 416 (1902).
Right of trial judge to cross-examine accused should be exercised sparingly. Leo v. State, 63 Neb. 723, 89 N.W. 303 (1902); Nightingale v. State, 62 Neb. 371, 87 N.W. 158 (1901).
Court in charging jury is only required to state the law applicable to the facts proven. Strong v. State, 63 Neb. 440, 88 N.W. 772 (1902).
As a general rule, reexamination should be limited to points arising out of cross-examination. George v. State, 61 Neb. 669, 85 N.W. 840 (1901).
To justify conviction on circumstantial evidence, circumstances must be consistent with each other and inconsistent with any hypothesis of innocence. Smith v. State, 61 Neb. 296, 85 N.W. 49 (1901).
Burden of proof in criminal case does not shift to accused. Williams v. State, 60 Neb. 526, 83 N.W. 681 (1900).
Objection to question calling for incompetent testimony cannot be reserved until answer is received. Dunn v. State, 58 Neb. 807, 79 N.W. 719 (1899).
Rule of res gestae applied to statements in murder case. Sullivan v. State, 58 Neb. 796, 79 N.W. 721 (1899).
Preliminary to impeachment of a witness because of inconsistent statements at previous time, the attention of the witness should be called to the time and place where such alleged statements were made. McVey v. State, 55 Neb. 777, 76 N.W. 438 (1898).
Nondirection will not work reversal, proper instruction not being requested. Maxfield v. State, 54 Neb. 44, 74 N.W. 401 (1898); Johnson v. State, 53 Neb. 103, 73 N.W. 463 (1897).
Order in which a party shall introduce his proof is discretionary with trial court. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).
It is competent for witness on redirect examination to make clear matters left incomplete or obscure on cross-examination. Collins v. State, 46 Neb. 37, 64 N.W. 432 (1895).
If information contains two counts, there being no evidence to sustain one, it is error to submit question to jury on that count. Botsch v. State, 43 Neb. 501, 61 N.W. 730 (1895).
Limit to cross-examination respecting past life of witness, other than defendant, for purpose of affecting his credibility, rests with court. Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894).
It is only when there is total failure of proof, or where testimony is so weak or doubtful in character that a conviction could not be sustained, that trial court is justified in directing a verdict of not guilty. Wanzer v. State, 41 Neb. 238, 59 N.W. 909 (1894).
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
The court did not abuse discretion in rejecting defendant's motion to have jury visit jail from which he had escaped. State v. Glenn, 193 Neb. 230, 226 N.W.2d 137 (1975).
In absence of abuse of discretion, court may order, or refuse to permit, jury to inspect scene of alleged crime. State v. Craig, 189 Neb. 461, 203 N.W.2d 158 (1973).
No presumption that prisoner was not present at view, if record shows him to have been present in court when order was made, though record is silent as to presence at view. Fillion v. State, 5 Neb. 351 (1877).
View should be in presence of prisoner, unless he waives privilege. Carroll v. State, 5 Neb. 31 (1876).
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
In recognizing defendant to appear at next term, judge acts as examining magistrate, and, if he discharges defendant without so recognizing him such discharge will not be bar to arrest and examination before another magistrate. Sieck v. State, 96 Neb. 782, 148 N.W. 928 (1914).
Though information is defective, court may hold accused if probable cause exists. State v. Kendall, 38 Neb. 817, 57 N.W. 525 (1894).
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
Error proceedings by county attorney, decision on appeal, see section 29-2316.
Annotations
Preparation of bill of exceptions in criminal case is governed by rules governing a civil case. Benedict v. State, 166 Neb. 295, 89 N.W.2d 82 (1958).
Sufficient exceptions were taken by convicted defendant to warrant consideration of alleged errors committed at trial. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Affidavits for continuance will not be considered by appellate court unless embodied in bill of exceptions. Hans v. State, 50 Neb. 150, 69 N.W. 838 (1897).
Facts of which there is no evidence or recitation in bill of exceptions, will be disregarded in Supreme Court. McCall v. State, 47 Neb. 660, 66 N.W. 635 (1896).
In capital case, want of exception will not necessarily deprive prisoner of right to new trial for prejudicial errors of court. Schlencker v. State, 9 Neb. 300, 2 N.W. 710 (1879).
Arguments of counsel on questions raised during trial and remarks of court in deciding them serve no useful place in bill of exceptions and should be omitted. Clough v. State, 7 Neb. 320 (1878).
Prisoner tried for felony is entitled to new trial on ground of prejudicial erroneous instruction, even though no objection was taken thereto. Thompson v. People, 4 Neb. 524 (1876).
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
1. Reversible error
2. Not reversible error
3. Miscellaneous
1. Reversible error
The basic purpose of this section is to preserve the right to a fair trial by shielding the jury from improper contact by others and restricting the opportunities for improper conduct by jurors during the course of their deliberations. In the absence of express agreement or consent by the defendant, a failure to comply with this section by permitting the jurors to separate after submission of the case is erroneous, creates a rebuttable presumption of prejudice, and places the burden upon the prosecution to show that no injury resulted. State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).
Under this section, after submission of a criminal case to the jury, the defendant has the right to have the jury kept together until the jury agrees on a verdict or is discharged by the court, and this right may be waived only by specific agreement or consent of counsel for the parties. In the absence of express agreement or consent by the defendant, a failure to comply with this section by permitting the jurors to separate after submission of the case is erroneous, creates a rebuttable presumption of prejudice, and places the burden upon the prosecution to show that no injury resulted. State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002).
The defendant has a right to have the jury kept together from the submission to it of a criminal case until they agree on a verdict or are discharged by the court. State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980).
Communication by county attorney to juror was reversible error. Olsen v. State, 113 Neb. 69, 201 N.W. 969 (1925).
On trial for felony after case has been submitted to jury, it is error to permit court reporter to read testimony of witnesses for prosecution to jury in absence of defendant's counsel. Bartell v. State, 40 Neb. 232, 58 N.W. 716 (1894).
Use of statute in jury room during deliberation vitiates verdict. Harris v. State, 24 Neb. 803, 40 N.W. 317 (1888).
Bailiff, by remaining in jury room during time of considering verdict, vitiates verdict. Gandy v. State, 24 Neb. 716, 40 N.W. 302 (1888).
2. Not reversible error
The determination of whether or not a jury should be sequestered during the trial of a criminal case is left to the discretion of the trial court and, absent an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
The obtaining of affidavits from jurors was an acceptable means of obtaining the necessary facts for a hearing to determine whether there had been improper juror conduct or communication in a criminal trial. State v. Robbins, 207 Neb. 439, 299 N.W.2d 437 (1980).
The determination of whether or not a jury should be sequestered during recess of a criminal trial rests with the discretion of the trial court and, absent an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal. State v. Myers, 205 Neb. 867, 290 N.W.2d 660 (1980).
Whether or not a jury should be sequestered during the trial of a criminal case is left to the sound discretion of the court. State v. Bautista, 193 Neb. 476, 227 N.W.2d 835 (1975).
An admonition is not required each time the jury is permitted to separate. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Right to have jury kept together after submission of case may be waived. Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946).
Where prosecution adjourned for illness of juror, order overruling defendant's objections after twenty-six day adjournment was not reversible error. Penn v. State, 119 Neb. 95, 227 N.W. 314 (1929).
Separation of jury during recesses of court while trial is in progress and before final submission and permitting jurors to go home at close of day's service in court is within discretion of court. Wesley v. State, 112 Neb. 360, 199 N.W. 719 (1924).
Postponement for twenty-one days, after state had made case in chief, permitting jury to separate, was not error where no misconduct of juror is shown. Ossenkop v. State, 86 Neb. 539, 126 N.W. 72 (1910).
Fact that deputy sheriff was called as witness does not disqualify him from having charge of jury. Van Syoc v. State, 69 Neb. 520, 96 N.W. 266 (1903).
Objection based on mere inference that jury was allowed to separate, raised for first time in Supreme Court, is unavailing. Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901).
Where one juror separated from others after submission but no one communicated with him during separation, it was not ground for new trial. Spaulding v. State, 61 Neb. 289, 85 N.W. 80 (1901).
Assignment of error on ground of separation of jury is not sufficient unless it alleges they were not admonished, or failed to comply with their duty. Langford v. State, 32 Neb. 782, 49 N.W. 766 (1891).
Separation of jury before submission, known to prisoner and counsel, but not disclosed to judge until after verdict, is not ground for new trial. Polin v. State, 14 Neb. 540, 16 N.W. 898 (1883).
3. Miscellaneous
Prejudice arising from the failure to comply with the requirements of this section does not alter the prejudice analysis required by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
A defendant waives his or her right under this section to have the jury kept together by failing to object to the jury's separation, overruling State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980). State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
Under this section, the defendant has the right to have the jury kept together until the jury agrees on a verdict or is discharged by the court. State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).
Although this section states that the bailiff, as the officer having the jury in his or her charge, shall not make "any communication" to jurors except to ask whether they have agreed upon a verdict, some incidental communication between the bailiff and jurors beyond that specified under this section will unavoidably occur. When such communication is limited to simple, practical matters of logistics, such as the location of the facilities used for deliberations, such communication is not likely to be prejudicial to the defendant or deny the defendant a fair trial. But while communications concerning administrative matters may not be prejudicial, when communications involve matters of law, the risk of prejudice is present and communication by the bailiff to jurors on such matters is improper. State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007).
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
1. Discharge without prejudice
2. Basis for discharge
3. Journal entry
4. Miscellaneous
1. Discharge without prejudice
A mistrial because of disagreement of the jury is without prejudice to the right of the state to retry the defendant. State v. Fromkin, 174 Neb. 849, 120 N.W.2d 25 (1963).
In a criminal trial where the jury is discharged in accordance with this section, such discharge is without prejudice to the prosecution. State v. Hutter, 145 Neb. 798, 18 N.W.2d 203 (1945).
2. Basis for discharge
Drunkenness of juror is an accident or calamity requiring discharge of jury. Fetty v. State, 119 Neb. 619, 230 N.W. 440 (1930).
Serious illness of juror's wife and death of his child was sufficient to warrant discharge of jury. Salistean v. State, 115 Neb. 838, 215 N.W. 107 (1927).
Where biased juror is discovered during progress of trial, court may discharge jury. Quinton v. State, 112 Neb. 684, 200 N.W. 881 (1924).
Insanity of juror authorizes discharge, being an "accident or calamity." Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).
3. Journal entry
Entry of reasons on journal should be ordered; "sickness" must be of a sudden and calamitous nature. Conklin v. State, 25 Neb. 784, 41 N.W. 788 (1889).
Record must show necessity for discharge. State v. Schuchardt, 18 Neb. 454, 25 N.W. 722 (1885).
4. Miscellaneous
Holding accused for trial after discharge of jury because of the jury's inability to agree is not former jeopardy. Sutter v. State, 105 Neb. 144, 179 N.W. 414 (1920).
Court has large discretion as to length of time jury shall be kept together in consultation. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
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
1. Reception of verdict
2. Polling of jury
3. Miscellaneous
1. Reception of verdict
Irregularity in receiving verdict in absence of counsel may be waived. Hyslop v. State, 159 Neb. 802, 68 N.W.2d 698 (1955).
Verdict received in vacation time is not a "privy verdict." Manion v. State, 104 Neb. 130, 175 N.W. 1013 (1920).
Reception of verdict in criminal case is governed by this section. Evers v. State, 84 Neb. 708, 121 N.W. 1005 (1909).
Verdict must be given in open court. Longfellow v. State, 10 Neb. 105, 4 N.W. 420 (1880).
Jury may not return instead of verdict a statement that they have agreed to disagree. Green v. State, 10 Neb. 102, 4 N.W. 422 (1880).
Verdict signed by all jurors is good. Clough v. State, 7 Neb. 320 (1878).
Verdict finding defendant guilty, without adding "in manner and form," etc., is good. Preuit v. State, 5 Neb. 377 (1877).
2. Polling of jury
A defendant may waive his right to have the jury polled. When upon inquiry by the court he replies in the negative, the right is waived. State v. Hiatt, 190 Neb. 315, 207 N.W.2d 678 (1973).
Jury need not be polled unless requested by defendant or prosecuting attorney. Feddern v. State, 79 Neb. 651, 113 N.W. 127 (1907).
3. Miscellaneous
Verdict should be certain, not ambiguous; sufficient if in light of record meaning is clear beyond reasonable doubt. Keeler v. State, 73 Neb. 441, 103 N.W. 64 (1905).
Verdict is void which omits name of guilty party. Williams v. State, 6 Neb. 334 (1877).
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
Where under statute attempt to commit defined offense is punishable, instruction on attempt is not erroneous even though defendant is not formally charged with attempt. State v. Ambrose, 192 Neb. 285, 220 N.W.2d 18 (1974).
The unlawful operation of a motor vehicle is not necessarily an included offense in prosecution for motor vehicle homicide. Olney v. State, 169 Neb. 717, 100 N.W.2d 838 (1960).
Charge of shooting with intent to wound may include lesser offense of assault or assault and battery. Moore v. State, 147 Neb. 390, 23 N.W.2d 552 (1946).
It is not error to fail to submit question of accused's guilt of lesser offense where evidence is not such as to warrant such verdict. Davis v. State, 116 Neb. 90, 215 N.W. 785 (1927).
Jury may find accused not guilty of offense charged but guilty of attempt to commit same where such attempt is an offense. In re Resler, 115 Neb. 335, 212 N.W. 765 (1927).
Provisions of section extend to subsequently created offenses. Mulloy v. State, 58 Neb. 204, 78 N.W. 525 (1890).
Verdict of guilty of manslaughter on charge of murder in first degree is valid, though it fails to specifically negative fact that crime was of higher grade. Williams v. State, 6 Neb. 334 (1877).
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
In a theft case where a jury trial has been waived, the value of the property is one of the facts and elements of the crime to be determined by the trial judge, and this section is not applicable. State v. Reed, 228 Neb. 645, 423 N.W.2d 777 (1988).
Restitution, in a larceny case, can be ordered only if the jury determines by verdict the value of property stolen. State v. Frandsen, 199 Neb. 546, 260 N.W.2d 206 (1977).
This section not applicable where crime charged is that of receiving stolen property at a value of more than one hundred dollars. State v. McKee, 183 Neb. 754, 163 N.W.2d 434 (1969).
Verdict of jury in larceny case must determine value of property stolen. State v. Houp, 182 Neb. 298, 154 N.W.2d 465 (1967).
Requirement that jury fix the amount obtained by false pretense in its verdict was not in effect at time of commission of offense or at time of trial. State v. Swanson, 179 Neb. 693, 140 N.W.2d 618 (1966).
In a theft case, the trial court erred in limiting the jury's consideration of value and in submitting a form of verdict which precluded a jury from making a specific finding of value and conveying that fact to the judge in its verdict. State v. Long, 2 Neb. App. 847, 516 N.W.2d 273 (1994).
Double jeopardy protection not violated where court at first trial failed to notify jury of need to ascertain value of property stolen and set aside guilty verdict ordering defendant retried although court knew of error while jury was out. Houp v. State, 427 F.2d 254 (8th Cir. 1970).
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
1. Degree of offense
2. Plea of guilty
3. Habeas corpus
1. Degree of offense
Where murder is charged, a court is required to instruct the jury on all lesser degrees of criminal homicide for which there is proper evidence before the jury; this statutory rule does not apply when the charge is attempted murder. State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
In a murder trial, the district court was required to instruct the jury as to the lesser-included offenses of second degree murder and manslaughter where there were no eyewitnesses to the deceased's death and the evidence adduced at trial was largely circumstantial. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).
When a proper, factual basis is present, a court must instruct a jury on the degrees of criminal homicide, that is, the provisions of this section are mandatory. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).
When there is a proper, factual basis, a court is required to instruct on the degrees of criminal homicide even in the absence of a requested instruction regarding the lesser degrees of criminal homicide. State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984).
This section requires an instruction be given on such lesser degrees of homicide as find support in the evidence. State v. Drew, 216 Neb. 685, 344 N.W.2d 923 (1984).
The trial court is required, without request, to instruct the jury on such lesser degrees of homicide as to which the evidence is properly applicable. State v. Rowe, 210 Neb. 419, 315 N.W.2d 250 (1982).
When a defendant is charged with murder in the first degree, it is reversible error for the court to fail to instruct the jury on such lesser degrees of homicide as the evidence could support, even if no request is made for such an instruction. State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (1980).
Guilty plea following deliberate killing of unarmed victim clearly justified finding of second degree murder. State v. Thompson, 199 Neb. 67, 255 N.W.2d 880 (1977).
Where different inferences may be drawn, court must submit different degrees to jury. Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953).
This section prescribes the duty of court and jury in ascertaining the degree of offense and imposition of sentence. Moore v. State, 148 Neb. 747, 29 N.W.2d 366 (1947).
Degree of murder is ordinarily for jury; different degrees of murder must be submitted to jury under evidence and circumstances authorizing different inferences as to degree. Denison v. State, 117 Neb. 601, 221 N.W. 683 (1928).
In all trials for murder, the provisions of this section are mandatory. Bourne v. State, 116 Neb. 141, 216 N.W. 173 (1927).
Jury is required, if it find accused guilty, to find whether guilty of murder in first or second degree or manslaughter; jury may acquit accused of degree charged and convict of lesser degree. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Verdict of guilty which does not ascertain whether it be murder or manslaughter confers no power on court to pass sentence. Parrish v. State, 18 Neb. 405, 25 N.W. 573 (1885).
Failure to negative fact that crime was of higher degree than that found is no ground for reversal. Williams v. State, 6 Neb. 334 (1877).
2. Plea of guilty
Where the defendant pleads to a specific degree of murder, this section does not apply. State v. Belmarez, 254 Neb. 467, 577 N.W.2d 264 (1998).
Proceedings in error carried on within statutory term after final judgment are required to review alleged error of trial court in failing to examine witnesses in open court to determine degree of guilt. Newcomb v. State, 129 Neb. 69, 261 N.W. 348 (1935).
Instruction given by trial court constituted a determination of degree of guilt on plea of guilty. Cole v. State, 105 Neb. 371, 180 N.W. 564 (1920).
3. Habeas corpus
One charged with murder in first degree and convicted of second degree cannot obtain release on habeas corpus on ground he was convicted of a separate and distinct offense from that charged. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).
Regularity of proceedings leading up to sentence cannot be inquired into by habeas corpus. Fuller v. Fenton, 104 Neb. 358, 177 N.W. 154 (1920).
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.
Annotations
The State is not required to corroborate a victim's testimony in cases of first degree sexual assault, even if the testimony is inconsistent with prior statements; if believed by the finder of fact, the victim's testimony alone is sufficient. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).
Testimony concerning corroboration in sexual offense cases is not rendered inadmissible under this section, but is no longer required. State v. Williamson, 235 Neb. 960, 458 N.W.2d 236 (1990).
An appellate court concluded that uncorroborated testimony would be sufficient to convict a defendant of sexual assault as defined in sections 28-319 to 28-320.01 in any case wherein the fact finder determined that such testimony was sufficient evidence of guilt beyond a reasonable doubt. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
A jury instruction was found to be a correct statement of the law under this section. The instructions, when taken together, advised the jury that while corroboration of the victim's testimony was not required, corroboration, or the lack thereof, could be considered by the jury in determining the weight to be given to the testimony, although the concurring opinion cautioned against routinely giving instruction at issue in this case. State v. Schmidt, 16 Neb. App. 741, 750 N.W.2d 390 (2008).
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
DNA Testing Act, see section 29-4116.
Annotations
1. Newly discovered evidence
2. Misconduct of attorney
3. Misconduct of jury
4. Irregularity in proceedings
5. Other grounds
6. Miscellaneous
1. Newly discovered evidence
Evidence must have existed at trial for it to be uncovered after the trial. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
Evidence of facts happening after trial ordinarily cannot be considered as newly discovered evidence on which to justify the granting of a new trial. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
A new trial can be granted on grounds materially affecting the substantial rights of the defendant, including "newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at trial." State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
In considering a motion for new trial based upon newly discovered evidence pursuant to either subsection (5) or (6) of this section, the Nebraska Supreme Court applies a higher standard in order to promote the finality of the judgment based upon the presumption that the defendant received a fair trial and no fundamental rights were violated. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
The proper standard for reviewing motions for new trial pursuant to subsection (6) of this section is the same standard for reviewing a motion for new trial based upon newly discovered evidence pursuant to subsection (5) of this section. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
To warrant a new trial pursuant to subsection (6) of this section, the district court must determine that newly discovered exculpatory evidence obtained pursuant to the DNA Testing Act is of such a nature that if it had been offered and admitted at the trial, it probably would have produced a substantially different result. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
To warrant a new trial, the court must determine that newly discovered exculpatory evidence obtained pursuant to the DNA Testing Act must be of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result. State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004); State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
A motion for new trial filed under subsection (6) of this section based on newly discovered exculpatory evidence obtained pursuant to the DNA Testing Act is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
The appeal of a ruling denying a motion to vacate and set aside the judgment under subsection (2) of section 29-4123 of the DNA Testing Act does not deprive a trial court of jurisdiction to consider a motion for new trial filed under subsection (6) of this section based on newly discovered evidence obtained under the DNA Testing Act. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
When a codefendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a defendant, the evidence is not newly discovered within the meaning of this section; the substance of the codefendant's testimony is not, in fact, new evidence if it was known by the defendant at the time of the initial trial. State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
A motion for new trial based on newly discovered evidence is to be presented to the county court as the fact finder, not to the district court which sat as an appellate court. State v. Ferris, 216 Neb. 606, 344 N.W.2d 668 (1984).
Where a motion for new trial is based on newly discovered evidence, the rule is well-established that the newly discovered evidence must be of such a nature that if offered and admitted at the former trial, it probably would have produced a substantial difference in the result. State v. Ferris, 216 Neb. 606, 344 N.W.2d 668 (1984).
In order to justify a new trial, newly discovered evidence must involve something other than the credibility of a witness who testified at trial. State v. Pierce and Wells, 215 Neb. 512, 340 N.W.2d 122 (1983).
Newly discovered evidence concerning the credibility of a witness is not sufficient to support a motion for new trial. State v. Hortman, 207 Neb. 393, 299 N.W.2d 187 (1980).
Newly discovered evidence must be of such a nature that, if offered and admitted at the former trial, it probably would have produced a difference in the result. State v. Smith, 202 Neb. 501, 276 N.W.2d 104 (1979).
Newly discovered evidence must be relevant and credible, and not merely cumulative. It must involve something other than the credibility of witnesses who testified at the former trial. State v. Smith, 202 Neb. 501, 276 N.W.2d 104 (1979).
Unless the newly discovered evidence is so substantial that it would have probably changed the result, the discretion of the trial court in denying a motion for new trial will not be disturbed. State v. French, 200 Neb. 137, 262 N.W.2d 711 (1978).
In a criminal prosecution, a new trial will be granted on timely application of defendant for newly discovered evidence material for defendant, provided his substantial rights are affected and he could not with reasonable diligence have discovered and produced the evidence at trial. State v. Atkinson, 191 Neb. 9, 213 N.W.2d 351 (1973).
A new trial will not ordinarily be granted for newly discovered evidence which, when produced, will merely impeach or discredit a witness. State v. Wycoff, 180 Neb. 799, 146 N.W.2d 69 (1966).
District court is not deprived of jurisdiction to hear and determine motion for new trial on newly discovered evidence by pendency in Supreme Court of error proceeding. Smith v. State, 167 Neb. 492, 93 N.W.2d 499 (1958).
To warrant granting of new trial, newly discovered evidence must be competent, material, and credible. Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955).
Newly discovered evidence, to justify granting of new trial, must be of so controlling a nature as to probably change the result of the former trial. Penn Mutual Life Ins. Co. v. Lindquist, 132 Neb. 220, 271 N.W. 429 (1937).
New trial may be granted on ground of newly discovered evidence which is competent, material and credible, which might have changed result, and which could not be discovered by exercise of due diligence. Duffey v. State, 124 Neb. 23, 245 N.W. 1 (1932).
To be entitled to new trial on ground of newly discovered evidence, party must show that it is material and could not have been produced at trial by reasonable diligence. Mauer v. State, 113 Neb. 418, 203 N.W. 554 (1925); Cunningham v. State, 56 Neb. 691, 77 N.W. 60 (1898).
When it is conceded by state that facts exist which could not have been known at trial, and which render it improbable that defendant is guilty, a new trial after term in which judgment was rendered may be granted. Franco v. State, 98 Neb. 746, 154 N.W. 236 (1915).
Newly discovered evidence which merely tends to impeach state's witnesses with respect to collateral facts is not ground for new trial. Hanks v. State, 88 Neb. 464, 129 N.W. 1011 (1911).
Court of equity will not interfere to grant new trial in criminal case on ground of newly discovered evidence. Hubbard v. State, 72 Neb. 62, 100 N.W. 153 (1904).
Motion for new trial on ground of newly discovered evidence was properly overruled when affidavit of proposed witness was contradicted by his sworn testimony. Housh v. State, 43 Neb. 163, 61 N.W. 571 (1895).
Newly discovered evidence which merely tends to discredit some of state's witnesses is not ground for new trial. Ogden v. State, 13 Neb. 436, 14 N.W. 165 (1882).
Pursuant to section 29-2103(4), a motion for new trial based on newly discovered evidence under subsection (5) of this section must be filed within 3 years of the date of the verdict. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
Pursuant to subsection (5) of this section, a new trial may be granted when a defendant produces newly discovered evidence which he or she could not with reasonable diligence have discovered and produced at trial. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
The trial court properly overruled the defendant's motion for new trial because the defendant filed the motion more than 10 days after the verdict and because the defendant's newly discovered evidence was cumulative and only went to the credibility of a witness. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).
If a motion for new trial raises valid grounds for reexamination on the basis of newly discovered evidence to ascertain whether or not a person has been wrongfully convicted, then the steps provided for such reexamination should be taken timely and without undue delay, even though a prior motion for new trial is pending on appeal. State v. Owen, 2 Neb. App. 195, 508 N.W.2d 299 (1993).
2. Misconduct of attorney
Misconduct of prosecuting attorney in argument to jury is ground for new trial. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Misconduct of prosecuting attorney in argument must have been sufficient to unduly influence the jury and prejudice the rights of defendant. Argabright v. State, 62 Neb. 402, 87 N.W. 146 (1901).
Misconduct of attorney must have been excepted to. Bullis v. Drake, 20 Neb. 167, 29 N.W. 292 (1886).
3. Misconduct of jury
Pretrial bet by juror that defendant would receive the death penalty was not prejudicial to defendant where verdict of jury called for life imprisonment. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959).
Affidavits of jurors, relating to arguments or statements made in jury room, will not be received to impeach verdict. Lambert v. State, 91 Neb. 520, 136 N.W. 720 (1912); Welsh v. State, 60 Neb. 101, 82 N.W. 368 (1900).
Discussion by jury of irrelevant matters is not misconduct; keeping jury together a long time, without opportunity for sleep, does not vitiate verdict if same is deliberate and voluntary. Lambert v. State, 91 Neb. 520, 136 N.W. 720 (1912); Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Misconduct of jury in deliberations cannot be shown by statements of jurors. Savary v. State, 62 Neb. 166, 87 N.W. 34 (1901).
Verdict cannot be impeached by juror on ground that he misunderstood evidence of witness, or verdict when same was assented to in open court. Coil v. State, 62 Neb. 15, 86 N.W. 925 (1901).
Where it is attempted to show misconduct of jury by affidavit of jurors, trial court can take into consideration presumption that jurors obeyed their oaths. Tracey v. State, 46 Neb. 361, 64 N.W. 1069 (1895).
Finding of trial court will not be disturbed where evidence of alleged misconduct of jurors is conflicting. McMahon v. State, 46 Neb. 166, 64 N.W. 694 (1895).
Affidavit after verdict, contradicting answer of juror on voir dire examination, should be received with caution. Hill v. State, 42 Neb. 503, 60 N.W. 916 (1894).
Motion on ground of previous expression of opinion by juror will not be granted unless both accused and his counsel did not have knowledge thereof. Clough v. State, 7 Neb. 320 (1878).
Drinking of liquor by juror is not fatal to verdict. Ankeny v. Rawhouser, 2 Neb. Unof. 32, 95 N.W. 1053 (1901).
4. Irregularity in proceedings
In criminal case, alleged errors of the trial court not referred to in a motion for a new trial will not be considered on appeal. State v. Svoboda, 194 Neb. 663, 234 N.W.2d 901 (1975).
Ruling on motion submitted on conflicting affidavits, will not be disturbed unless clearly wrong. Lukehart v. State, 91 Neb. 219, 136 N.W. 40 (1912).
Alleged error in instructions will not be considered in Supreme Court unless challenged by motion for new trial. Lackey v. State, 56 Neb. 298, 76 N.W. 561 (1898).
Admission of immaterial evidence, not prejudicial to accused, is not ground for reversal. Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898).
To warrant conviction it is not essential that evidence exclude every possible hypothesis except guilt of accused. Johnson v. State, 53 Neb. 103, 73 N.W. 463 (1897).
New trial will not be allowed because of absence of witness who testifies on subsequent day of trial. Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897).
Exclusion of merely cumulative testimony is not prejudicial. Kelly v. State, 51 Neb. 572, 71 N.W. 299 (1897).
Erroneous instruction is not cured by merely giving another contradicting it. Henry v. State, 51 Neb. 149, 70 N.W. 924 (1897).
Denial of motion to require election by state is reviewable, though not assigned as error in motion for new trial. Hans v. State, 50 Neb. 150, 69 N.W. 838 (1897).
Alleged errors in overruling challenges to jurors for cause are not reviewable unless assigned in motion for new trial. Ford v. State, 46 Neb. 390, 64 N.W. 1082 (1895).
Verdict will not be disturbed merely because evidence is conflicting. Palmer v. People, 4 Neb. 68 (1875).
5. Other grounds
Unless alleged errors are pointed out in motion for new trial and ruling obtained thereon, appeal must be dismissed. State v. Fauth, 192 Neb. 502, 222 N.W.2d 561 (1974).
In criminal cases, alleged errors of the trial court not referred to in the motion for a new trial will not be considered on appeal. State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974).
Motion for new trial set out some of the reasons contained in this section. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).
Common law writ of error coram nobis is not abolished. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).
Allowance of new trial, where crime consists of several degrees charged in different counts, goes to whole case; but when separate crimes are charged, goes only to count on which defendant was convicted. George v. State, 59 Neb. 163, 80 N.W. 486 (1899).
Defect in verdict, though not assigned as ground for new trial, may be examined by Supreme Court in error proceeding. Holmes v. State, 58 Neb. 297, 78 N.W. 641 (1899).
Misconduct of spectator, who is immediately suppressed and rebuked by court, is not reversible error. Lindsay v. State, 46 Neb. 177, 64 N.W. 716 (1895).
Alleged errors, to be reviewable, must have been set out in motion for new trial. Madsen v. State, 44 Neb. 631, 62 N.W. 1081 (1895).
Absence of accused from courtroom, where upon his return testimony was again repeated, was not ground for new trial. Hair v. State, 16 Neb. 601, 21 N.W. 464 (1884).
Ruling on plea in abatement was not ground for motion. Bohanan v. State, 15 Neb. 209, 18 N.W. 129 (1884).
In capital case, want of exception will not necessarily deprive accused of right of new trial. Schlencker v. State, 9 Neb. 300, 2 N.W. 710 (1879); Thompson v. People, 4 Neb. 524 (1876).
6. Miscellaneous
To be granted a new trial, this section requires that the enumerated grounds materially affect the defendant's substantial rights. State v. Muratella, 314 Neb. 463, 991 N.W.2d 25 (2023).
When a guilty or no contest plea is accepted and the court enters a judgment of conviction thereon, that is a "verdict of conviction" for the purposes of this section. State v. Muratella, 314 Neb. 463, 991 N.W.2d 25 (2023).
Evidence received at postconviction proceedings cannot be considered in determining a subsequent motion for new trial based on evidence obtained through the DNA Testing Act if the postconviction evidence was not presented at the defendant's former trial and is not newly discovered DNA or similar forensic testing evidence. State v. Duncan, 309 Neb. 455, 960 N.W.2d 576 (2021).
Ineffective assistance of counsel is not a ground upon which a defendant may move for a new trial under this section. State v. Pieper, 274 Neb. 768, 743 N.W.2d 360 (2008).
At trial, the jury was presented with evidence that a hair of unknown origin had originated, but later fallen, from the belt used to strangle the victim. DNA testing revealed that this hair actually belonged to the defendant and that a hair of unknown origin was located in a knot in the belt. The Nebraska Supreme Court cannot say that had the jury known of this new evidence, it probably would have produced a substantially different result. State v. El-Tabech, 269 Neb. 810, 696 N.W.2d 445 (2005).
A motion could not be brought under this section to compel state-funded DNA testing when the 3-year time period required by section 29-2103 had passed. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
The filing of a motion for new trial in a criminal case does not terminate the running of the 30-day period in which a criminal defendant must file a notice of appeal. State v. McCormick and Hall, 246 Neb. 271, 518 N.W.2d 133 (1994).
A motion for new trial made under this section because of (1) irregularity in the proceedings of the court, or the prosecuting attorney, or the witness for the state, or 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 or prosecuting attorney, or the witnesses for the State; or (3) newly discovered evidence material for the defendant which he could not with reasonable diligence have discovered and produced at the trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed on appeal. State v. Boppre, 243 Neb. 908, 503 N.W.2d 526 (1993).
The asserted ground for a new trial must affect adversely the substantial rights of the defendant, and it must be shown that he was prejudiced thereby. State v. Tainter, 218 Neb. 855, 359 N.W.2d 795 (1984).
Motion for new trial on ground of accident or surprise properly overruled where no request for continuance made at trial. State v. Mills, 199 Neb. 295, 258 N.W.2d 628 (1977).
Evidence confirming defendant's guilt and not likely to produce different verdict will not support motion for new trial. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).
Plea of guilty or nolo contendere, made with full knowledge of the charge and the consequences of the plea, cannot be withdrawn in the absence of fraud, mistake, or improper means used in its procurement. State v. Kluge, 198 Neb. 115, 251 N.W.2d 737 (1977).
An order granting probation is a sentence under section 29-2260(4), and for review a motion for new trial must be filed within ten days, but no motion for new trial is required for review of order revoking probation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975).
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
The constitutional right to trial by a fair and impartial jury that is affected by a stranger's presence in the jury room is a substantial right, so when an alternate juror is mistakenly allowed in the jury room during deliberations, without any safeguards in place under section 29-2004, a court has a mandatory duty to conduct an evidentiary hearing to determine the extent and nature of any communications by the alternate or whether the alternate's presence or communications materially influenced the jury. State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021).
A de novo standard of review applies when an appellate court is reviewing a trial court's dismissal of a motion for new trial under this section without conducting an evidentiary hearing. State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
Misconduct of county attorney may be sustained by affidavits. Mulder v. State, 152 Neb. 795, 42 N.W.2d 858 (1950).
This section does not apply to newly discovered evidence discovered after adjournment of term. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).
Facts may be such as to require entire record to be limited to affidavits. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Affidavits must be preserved in form of bill of exceptions to be available to complaining party on appeal. Wright v. State, 45 Neb. 44, 63 N.W. 147 (1895).
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
1. Time to be filed
2. Newly discovered evidence
3. Other grounds
4. Miscellaneous
1. Time to be filed
An appellate court does not consider a motion for new trial to the extent that its grounds fail to conform to the statutory requirements of timeliness. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
The law requires diligence on the part of clients and their attorneys, and the mere neglect of either will not entitle a party to relief on that ground. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
Where the record does not support a finding that a defendant was unavoidably prevented from timely filing a motion for new trial based on grounds set forth in subdivisions (1) through (4) or (7) of section 29-2101, such a filing made more than 10 days after the jury returned its verdict has no effect and may not be considered by an appellate court. State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).
A motion could not be brought to compel state-funded DNA testing when the 3-year time period required by this section had passed. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
This section, by its terms, is mandatory. A motion for new trial not filed in conformity with the statutory requirements as to time may not be considered by an appellate court on review. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).
Motion for new trial not filed within ten days after verdict rendered, where no showing made that defendant was unavoidably prevented from doing so, is a nullity. State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90 (1977).
Motion for new trial hereunder must be filed within ten days after verdict, not sentencing. State v. Applegarth, 196 Neb. 773, 246 N.W.2d 216 (1976).
A motion for new trial under this section must be filed within ten days after the verdict is rendered, not from sentencing unless the verdict and sentencing occur on the same day. State v. Betts, 196 Neb. 572, 244 N.W.2d 195 (1976).
A motion for new trial under this section must be filed within ten days after the verdict is rendered, not from date of sentencing. State v. Wood, 195 Neb. 353, 238 N.W.2d 226 (1976).
A motion for new trial hereunder must be filed within ten days after the verdict is rendered not after sentencing. State v. Lacy, 195 Neb. 299, 237 N.W.2d 650 (1976).
An order granting probation is a sentence under section 29-2260(4), and for review a motion for new trial must be filed within ten days, but no motion for new trial is required for review of order revoking probation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975).
A motion for new trial in a criminal case must be filed within ten days after rendition of verdict. State v. Losieau, 179 Neb. 54, 136 N.W.2d 168 (1965).
Motion for new trial was timely filed. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).
Defendant was not unavoidably prevented from filing motion for new trial in time prescribed. Stanosheck v. State, 168 Neb. 43, 95 N.W.2d 197 (1959).
In criminal case, motion for new trial must be filed within ten days and amendment thereto cannot thereafter be made. Parker v. State, 164 Neb. 614, 83 N.W.2d 347 (1957).
An objection to a juror raised for first time in second motion for new trial filed fourteen days after filing of first motion for new trial, and containing no showing of newly discovered evidence, is out of time and not ground for new trial. Young v. State, 133 Neb. 644, 276 N.W. 387 (1937).
Provisions limiting time are mandatory. McCoy v. State, 110 Neb. 360, 193 N.W. 716 (1923); Davis v. State, 31 Neb. 240, 47 N.W. 851 (1891).
Motion filed two years after judgment on ground of newly discovered evidence was properly dismissed. Bradshaw v. State, 19 Neb. 644, 28 N.W. 323 (1886).
2. Newly discovered evidence
A former version of subsection (4) of this section, which required a defendant to move for a new trial because of newly discovered evidence within 3 years, did not violate the due process rights of a defendant who alleged the State failed to disclose favorable evidence it had received 5 years after his murder conviction. The defendant did not claim that the favorable evidence was sufficiently compelling to show his actual innocence or that Nebraska's postconviction procedures were inadequate to protect his statutory postconviction rights, and a defendant has no substantive due process right to have the State disclose exculpatory evidence discovered after a final judgment. State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).
Under the former law, a motion for postconviction relief could not be used to obtain, outside of the 3-year time limitation under subsection (4) of this section, what is essentially a new trial based on newly discovered evidence. State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013).
New evidence tendered in support of a motion for a new trial on the grounds of newly discovered evidence must be so potent that by strengthening evidence already offered, a new trial would probably result in a different verdict. State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974).
Motion for new trial upon ground of newly discovered evidence in criminal case may be made within three years of the date of the verdict. Smith v. State, 167 Neb. 492, 93 N.W.2d 499 (1958).
To require granting of new trial, newly discovered evidence must be of such nature as to probably change the verdict. Ysac v. State, 167 Neb. 24, 91 N.W.2d 49 (1958).
Granting or refusal of new trial upon the ground of newly discovered evidence depends upon the facts and circumstances of each case. Severin v. State, 148 Neb. 617, 28 N.W.2d 326 (1947).
In criminal case, new trial will be granted for newly discovered evidence which is competent, material and credible, which might have changed result of trial, and which exercise of due diligence could not have discovered and produced at trial. Duffey v. State, 124 Neb. 23, 245 N.W. 1 (1932).
Pursuant to subsection (4) of this section, a motion for new trial based on newly discovered evidence under section 29-2101(5) must be filed within 3 years of the date of the verdict. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
Pursuant to subsection (4) of this section, the appellate court was without jurisdiction to consider the assignment of error relating to the denial of a motion for new trial in a reinstated direct appeal, where only the direct appeal was reinstated and the defendant did not timely file a notice of appeal following the denial of his motion for new trial based on newly discovered evidence. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010).
Newly discovered evidence offered in support of a motion for new trial must be such that, by strengthening the evidence already offered, a new trial would probably result in a different verdict. State v. Edwards, 2 Neb. App. 149, 507 N.W.2d 506 (1993).
3. Other grounds
This court will not consider any error not presented below by motion for new trial where trial court had power to correct. State v. Beans, 199 Neb. 807, 261 N.W.2d 749 (1978).
This and other sections provide for redress by trial court, and review by Supreme Court, of trial errors challenged by motion for new trial. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Evidence adduced on hearing, to be available on review, must be incorporated in bill of exceptions. Holt v. State, 62 Neb. 134, 86 N.W. 1073 (1901).
Misconduct of juror, to be available on review, must be presented by record and assigned as error in motion. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901).
Assignments for failure to give group of instructions is considered no further when it is ascertained that refusal to give any one was proper. Thompson v. State, 44 Neb. 366, 62 N.W. 1060 (1895).
Errors occurring during trial, to be reviewable, must be assigned in motion and ruling obtained thereon. Wilson v. State, 43 Neb. 745, 62 N.W. 209 (1895).
Assignment in language of statute is sufficient. McNamee v. State, 34 Neb. 288, 51 N.W. 821 (1892).
Motion is indivisible and where made jointly by several parties, if it cannot be allowed as to all, must be overruled as to all. Dutcher v. State, 16 Neb. 30, 19 N.W. 612 (1884).
4. Miscellaneous
"Unavoidably prevented" as used in subsection (3) of this section refers to circumstances beyond the control of the party filing the motion for new trial. State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
"Unavoidably prevented" as used in this section refers to circumstances beyond the control of the party filing the motion for new trial. State v. Thompson, 246 Neb. 752, 523 N.W.2d 246 (1994).
This section is constitutional and does not violate the concepts of due process. State v. Kelley, 198 Neb. 805, 255 N.W.2d 840 (1977).
Where presiding judge is unavoidably prevented from ruling on motion for new trial, another judge may perform that duty. Hauser v. State, 101 Neb. 834, 166 N.W. 245 (1917).
Decision of trial judge permitted to stand if evidence on which it rests is fairly conflicting. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).
Motion properly dealt with as entirety; it is not error to overrule if it cannot be sustained in form presented. Reed v. State, 66 Neb. 184, 92 N.W. 321 (1902).
Failure to file motion is not sufficient cause for dismissing petition in error. Rhea v. State, 61 Neb. 15, 84 N.W. 414 (1900).
District judge may hear motion in case wherein judge of another district presided. Lauder v. State, 50 Neb. 140, 69 N.W. 776 (1897).
Supreme Court, as court of equity, cannot grant new trial in criminal cases instituted before it. Paulson v. State, 25 Neb. 344, 41 N.W. 249 (1889).
The trial court properly overruled the defendant's motion for new trial because the defendant filed the motion more than 10 days after the verdict and because the defendant's newly discovered evidence was cumulative and only went to the credibility of a witness. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999).
This section does not abolish the writ of error coram nobis. Hawk v. Jones, 160 F.2d 807 (8th Cir. 1947).
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
Challenge to certainty and particularity of information which states an offense in the words of the statute may be made by a motion to quash, but not by a motion in arrest of judgment. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973).
A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967).
Striking motion in arrest of judgment from files instead of overruling it was not prejudicial error. Kopp v. State, 124 Neb. 363, 246 N.W. 718 (1933).
Motion in arrest of judgment should be sustained when information is insufficient to charge offense under statute. Korab v. State, 93 Neb. 66, 139 N.W. 717 (1913).
Selection of jury from old list prepared during preceding year was not a ground for motion in arrest of judgment, where plea in abatement was filed raising question but ruling thereon was not obtained. Goldsberry v. State, 92 Neb. 211, 137 N.W. 1116 (1912).
Sufficiency of information which charges no offense may be challenged, though plea of guilty was entered. Smith v. State, 68 Neb. 204, 94 N.W. 106 (1903).
Motion applies only to jurisdiction of court and sufficiency of indictment. Dodge v. People, 4 Neb. 220 (1876).
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
A defendant who pleads not guilty without having raised the question of the lack of or a defective verification waives the defect. State v. Gilman, 181 Neb. 390, 148 N.W.2d 847 (1967).
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
1. Nature and purpose of allocution
2. Miscellaneous
1. Nature and purpose of allocution
A defendant must be afforded a forum and the right to question the constitutional propriety of the information utilized by the sentencing judge, to present countervailing information, and to test, question, or refute the relevance of information on which the judge may rely in determining the sentence to be imposed. State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
Allocution is an opportunity to address the court, not to speak to spectators in attendance. State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
Allocution is an unsworn statement from a convicted defendant to the sentencing judge in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
The time of imposition of sentence is not a public forum to be used by either a defendant or his or her attorney for that purpose. State v. Pereira, 284 Neb. 982, 824 N.W.2d 706 (2013).
A sentencing court is not required to use the specific words set out in the statute in conducting an allocution as long as defendant is afforded an opportunity to offer comments as to why judgment should not be passed against him. State v. Dethlefs, 239 Neb. 943, 479 N.W.2d 780 (1992).
Criminal defendant has a statutory right to allocution before sentencing, during which he is to be informed by court of verdict and asked whether he has anything to say why judgment should not be passed, providing an opportunity for defendant and counsel to contest any disputed factual basis for sentence. State v. Dunn, 14 Neb. App. 144, 705 N.W.2d 246 (2005).
2. Miscellaneous
Sentence vacated because defendant not present at sentencing even though his absence was by choice. State v. Ernest, 200 Neb. 615, 264 N.W.2d 677 (1978).
Error held not prejudicial. State v. Brockman, 184 Neb. 435, 168 N.W.2d 367 (1969).
Court is not required to delay imposition of sentence until statutory time for filing motion for new trial has expired. Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952).
Where record fails to show affirmatively that court, before pronouncing sentence, informed defendant that he had been found guilty, and record shows nothing to contrary, presumption is such information was given. Kopp v. State, 124 Neb. 363, 246 N.W. 718 (1933); Taylor v. State, 86 Neb. 795, 126 N.W. 752 (1910).
Section is mandatory; if not complied with, cause will be remanded. Evers v. State, 84 Neb. 708, 121 N.W. 1005 (1909); McCormick v. State, 66 Neb. 337, 92 N.W. 606 (1902).
Confinement of prisoner under sentence of death, from date of sentence to day of execution, is no part of sentence. McGinn v. State, 46 Neb. 427, 65 N.W. 46 (1895).
Judge is not limited to this one question; cannot coerce answer. Tracey v. State, 46 Neb. 361, 64 N.W. 1069 (1895).
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
Annotations
1. Sentence of defendant
2. Suspension of execution of sentence
3. Power of court
4. Miscellaneous
1. Sentence of defendant
Sentence vacated because defendant not present at sentencing even though his absence was by choice. State v. Ernest, 200 Neb. 615, 264 N.W.2d 677 (1978).
In absence of showing of prejudice, it is not error to sentence defendant before time for filing motion for new trial has expired. Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952).
Where conviction is had on each of separate counts charging same offense, single sentence is rendered upon all counts for one entire offense. Yeoman v. State, 81 Neb. 244, 115 N.W. 784 (1908).
Judgment imposing sentence will not be interfered with as being excessive in absence of clear abuse of discretion. Wright v. State, 45 Neb. 44, 63 N.W. 147 (1895); Morrison v. State, 13 Neb. 527, 14 N.W. 475 (1882).
Separate sentence should be passed on each count of indictment charging separate misdemeanors of same kind upon which defendant is found guilty. Burrell v. State, 25 Neb. 581, 41 N.W. 399 (1889).
2. Suspension of execution of sentence
Question raised but not decided as to authority of justice of peace to suspend execution of sentence beyond ninety days. Stuckey v. Rohnert, 179 Neb. 727, 140 N.W.2d 9 (1966).
3. Power of court
Ineffectual attempt of district court to pass judgment according to provision of law does not deprive that court of power to pass valid judgment. McCormick v. State, 71 Neb. 505, 99 N.W. 237 (1904).
Within limits fixed by statute, term of imprisonment rests with trial court. Geiger v. State, 6 Neb. 545 (1877).
4. Miscellaneous
A sentence validly imposed takes effect from the time it is pronounced, and a subsequent, different sentence is a nullity. State v. Kinney, 217 Neb. 701, 350 N.W.2d 552 (1984).
Failure to comply with this section does not affect the jurisdiction of the court, and is not ground for release on habeas corpus. Dunham v. O'Grady, 137 Neb. 649, 290 N.W. 723 (1940).
In recording judgment, clerk should follow substantially formal language of court. Preuit v. The People, 5 Neb. 377 (1877).
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
Constitutional provisions:
Due process, see Article I, section 3, Constitution of Nebraska.
Acquittal on grounds of insanity, special procedures, see sections 29-3701 to 29-3706.
Escape from treatment facility or program, effect, see section 71-939.
Mental Health Commitment Act, Nebraska, see section 71-901.
Annotations
1. Generally
2. Burden of proof
3. Constitutionality
4. Miscellaneous
1. Generally
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. State v. John, 310 Neb. 958, 969 N.W.2d 894 (2022).
Generally, under Nebraska's common-law definition, the insanity defense requires proof that (1) the defendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong. State v. John, 310 Neb. 958, 969 N.W.2d 894 (2022).
2. Burden of proof
A defendant who pleads that he or she is not responsible by reason of insanity has the burden to prove the defense by a preponderance of the evidence. State v. John, 310 Neb. 958, 969 N.W.2d 894 (2022).
A defendant who pleads that he or she is not responsible by reason of insanity has the burden to prove the defense by a preponderance of the evidence. The fact that a defendant has some form of mental illness or defect does not by itself establish insanity. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
3. Constitutionality
This section does not violate either the U.S. or Nebraska Constitution. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
The portion of this section which places the burden upon the defendant to prove insanity by a preponderance of the evidence does not violate the due process clause of the 14th amendment to the U.S. Constitution or Nebraska's due process clause, Neb. Const. art. I, sec. 3. State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989).
4. Miscellaneous
Subsection (4) of this section codified longstanding Nebraska precedent that intoxication is not a mental disease or defect. State v. Brennauer, 314 Neb. 782, 993 N.W.2d 305 (2023).
The defendant's filing of a notice of intention to rely upon an insanity defense under this section preserved his right to present evidence as to his sanity at trial, but it did not require the trial court to make any determination regarding the defendant's sanity before trial, and it did not preclude the trial court from accepting the defendant's waiver of his right to trial when he entered his no contest pleas. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022).
When a defendant pleads the defense of insanity and offers evidence on that issue, the plea is an implicit, although not legally operative, admission of the State's charges. The defense of temporarily diminished mental capacity exists separately and in addition to the defense of insanity. A trial court need not specially instruct the jury regarding the defense of diminished capacity if the court has otherwise properly instructed the jury regarding the intent which is an element of the crime charged. State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).
Because this statute grants trial courts the discretion to allow or deny counsel's presence at court-ordered psychiatric or psychological examinations of criminal defendants, it implicitly requires that defense counsel be notified of such an order issued ex parte prior to its taking effect so that defense counsel can present arguments to the court regarding counsel's presence at the examination; otherwise, the court's exercise of discretion in allowing or denying the presence of counsel at the examination would be unguided. A trial court's erroneous failure to notify defense counsel of an ex parte, court-ordered examination prior to such examination is harmless when defense counsel receives a copy of the expert examiner's report as soon as the state receives such a copy, and the defense has adequate opportunities to depose the expert examiner; hence, admission of the expert examiner's testimony and the denial of defense counsel's motions for continuance and a new trial are not reversible errors. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
Insanity is a jury question. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
Mental examination by state of defendant not authorized by this section unless defendant has pleaded not guilty by reason of insanity. State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984).
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
Nebraska Juvenile Code, see section 43-2,129.
Annotations
1. Minimum sentence
2. Indeterminate sentence
3. Cumulative sentence
4. Solitary confinement
5. Miscellaneous
1. Minimum sentence
In imposing a sentence subject to a habitual criminal enhancement, a court is not required to pronounce that the sentence is the "mandatory minimum" for the Department of Correctional Services to treat it as such in calculating an inmate's mandatory discharge date. Gray v. Frakes, 311 Neb. 409, 973 N.W.2d 166 (2022).
This section and section 29-2204.02(4) do not require a sentence for a Class IV felony to have a minimum term less than the maximum term. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
For purposes of the authorized limits of an indeterminate sentence, both "mandatory minimum" as used in section 28-319.01(2) and "minimum" as used in section 28-105 in regard to a Class IB felony mean the lowest authorized minimum term of the indeterminate sentence. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).
Under subsection (1) of this section, to the extent there was any discrepancy between the minimum sentence imposed and statements of the trial court regarding when the defendant would become eligible for parole, the minimum sentence controlled. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
There is no statutory requirement that the affirmatively stated minimum term for a Class IB felony sentence be less than the maximum term. State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
Under this section, specifically subsection (1)(a)(ii)(A), the minimum limit on a sentence for a Class IV felony cannot exceed one-third of the maximum statutory sentence; since the maximum statutory sentence for a Class IV felony is 5 years' imprisonment, a minimum sentence of more than 20 months' imprisonment cannot lawfully be imposed. State v. Bartholomew, 258 Neb. 174, 602 N.W.2d 510 (1999).
Minimum term of 30 months' imprisonment imposed by trial court on each of 10 counts of possession of child pornography exceeded minimum term of imprisonment provided by law, where minimum term could not exceed one-third of maximum term of 60 months' imprisonment. State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).
There is no statutory requirement that a sentence for either a Class II or a Class III felony have a minimum term less than the maximum term. State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009).
When there is no statutorily mandated minimum punishment for a Class IV felony, the minimum term of a determinate sentence is the minimum provided by law, 0 years. State v. Hurst, 8 Neb. App. 280, 594 N.W.2d 303 (1999).
The statement of minimum sentence controls calculation of offender's term and a misstatement of parole eligibility cannot be used to "bootstrap" a reduced term of sentence. State v. Glover, 3 Neb. App. 932, 535 N.W.2d 724 (1995).
2. Indeterminate sentence
A life-to-life sentence for second degree murder is permissible. State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).
A life to life sentence for second degree murder is permissible under this section. State v. Moore, 277 Neb. 111, 759 N.W.2d 698 (2009).
When a flat sentence of "life imprisonment" is imposed and no minimum sentence is stated, by operation of law, the minimum sentence is the minimum imposed by law. While this section does not require that a minimum term be different from a maximum term, it does require that a minimum term be affirmatively stated if it is to be imposed, and if a minimum term is not set forth, an indeterminate sentence will be imposed by operation of law. State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).
This section and section 83-1,105.01 govern indeterminate sentences, and they are inapplicable to a criminal defendant's determinate sentence. State v. White, 256 Neb. 536, 590 N.W.2d 863 (1999).
Under this section, an indeterminate sentence may be imposed for a misdemeanor if a court sentences an offender to serve time under the jurisdiction of the Department of Correctional Services. State v. Kess, 9 Neb. App. 353, 613 N.W.2d 20 (2000).
Operative July 1, 1998, trial courts sentencing defendants convicted of Class IV felony offenses may not impose an indeterminate sentence such that the minimum portion of the sentence exceeds one-third of the maximum term. State v. Harris, 7 Neb. App. 520, 583 N.W.2d 366 (1998).
This section does not require that the sentence imposed be indeterminate. State v. DuBray, 5 Neb. App. 496, 560 N.W.2d 189 (1997).
Pursuant to subsection (1)(a) of this section, in setting an indeterminate sentence, there must be a difference between the periods, and a sentence fixing identical minimum and maximum terms of imprisonment is not an indeterminate sentence. There is nothing in subsection (1)(a) of this section mandating that an indeterminate sentence must be imposed, nor is there a requirement that the minimum and maximum terms of such a sentence differ by any specific span of time. State v. Wilson, 4 Neb. App. 489, 546 N.W.2d 323 (1996).
3. Cumulative sentence
Where two sentences are imposed in the same court at the same time for two offenses, the sentences will run concurrently if the trial judge does not otherwise order. Stewart v. Delgado, 231 Neb. 401, 436 N.W.2d 512 (1989).
Where prisoner is convicted of different offenses, cumulative sentence may be imposed, each successive term to commence at termination of the one preceding. In re Walsh, 37 Neb. 454, 55 N.W. 1075 (1893).
4. Solitary confinement
Trial court erred in sentencing defendant to 4 days each year in solitary confinement, since that provision has been eliminated from this section. State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995).
This section as amended contains no provision for the imposition of solitary confinement as a part of a sentence. State v. Bennett, 2 Neb. App. 188, 508 N.W.2d 294 (1993).
5. Miscellaneous
This section determines an offender's minimum sentence from which parole eligibility is then calculated. Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d 373 (1999).
Where a criminal statute was amended by mitigating the minimum term of a Class IV felony indeterminate sentence after the defendant committed the crime, but before final judgment was rendered on direct appeal, the punishment was that provided by the amendatory act, since the Legislature did not specifically state otherwise. State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).
Where a court wholly fails to make truth in sentencing advisements, but no objection is made at the sentencing hearing when the defendant is provided an opportunity to do so, any claimed error in failing to pronounce the advisements is waived. State v. Svoboda, 13 Neb. App. 266, 690 N.W.2d 821 (2005).
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.
Cross References
Nebraska Juvenile Code, see section 43-2,129.
Annotations
1. Determinate or indeterminate sentence
2. Sentence of probation
3. Retroactivity of legislation
4. Miscellaneous
1. Determinate or indeterminate sentence
For purposes of the indeterminacy requirement in subsection (4) of this section, it matters not when the underlying offenses occurred in relation to each other or that some of the relevant charges were brought via charging documents; subsection (4) is broad enough that it theoretically could be read to impose an indeterminacy requirement upon a Class III, Class IIIA, or Class IV felony sentence imposed consecutively or concurrently with a Class I, IA, IB, IC, ID, II, or IIA felony sentence that is already in progress. What matters under subsection (4) is that the sentences for those offenses are imposed consecutively or concurrently to each other. State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
It is plain error under subsection (4) of this section for a sentencing court to order determinate sentences for three Class IV felonies to be imposed consecutively with a Class IIA felony sentence. State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
A sentence of imprisonment upon revocation from post-release supervision is a determinate sentence within the meaning of this section. State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).
Where the district court sentenced a defendant for a Class II felony and imposed a concurrent sentence for a Class IV felony for offenses occurring in 2017, the court plainly erred by imposing a determinate sentence rather than an indeterminate sentence for the Class IV felony. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
A determinate sentence, as used in subdivision (1)(a) of this section, is imposed when the defendant is sentenced to a single term of years. State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
A determinate sentence is imposed when the defendant is sentenced to a single term of years, such as a sentence of 2 years' imprisonment. In contrast, when imposing an indeterminate sentence, a sentencing court ordinarily articulates either a minimum term and maximum term or a range of time for which a defendant is to be incarcerated. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
In Nebraska, the fact that the minimum term and maximum term of a sentence are the same does not affect the sentence's status as an indeterminate sentence. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
Based on the plain and ordinary meaning of the statutory language in subsection (5), this section does not apply where the sentence of imprisonment for a misdemeanor was not imposed consecutively or concurrently with a sentence of imprisonment for a Class III, IIIA, or IV felony. State v. Criss, 31 Neb. App. 765, 989 N.W.2d 450 (2023).
A defendant's sentence on a Class IIIA felony needed to be an indeterminate sentence because the defendant was
also sentenced on Class II felonies. State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020).
A defendant's sentences on various misdemeanors needed to be indeterminate sentences pursuant to subsection (5) of this section, because the defendant was also sentenced on Class II felonies. State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020).
2. Sentence of probation
This section encompasses a policy decision by the Legislature favoring probationary sentences for Class IV felonies, and findings required under this section do not necessarily apply to sentencing decisions pertaining to higher-level offenses. State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022).
A determination of whether there are substantial and compelling reasons under subdivision (2)(c) of this section is within the trial court's discretion and will not be reversed on appeal absent an abuse of discretion. State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).
The court may fulfill the requirement of subsection (3) of this section to state its reasoning on the record by a combination of the sentencing hearing and sentencing order. State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).
The court's determination of substantial and compelling reasons under subdivision (2)(c) of this section should be based on a review of the record, including the presentence investigation report and the record of the trial, and its determination must be supported by such record. State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).
3. Retroactivity of legislation
The trial court did not plainly err by failing to impose an indeterminate sentence where an information alleged that a Class IIIA felony occurred over a period of time both before and after August 30, 2015; the evidence about when the assaults occurred could cover dates before and after August 30; and the jury did not make a specific finding demonstrating that it found the offense was committed after August 30. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
The defendant's sentence of 2 years' imprisonment with a 12-month period of post-release supervision for possession of a controlled substance was vacated pursuant to State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971), where the defendant was sentenced concurrently for two Class IV felonies and a Class W misdemeanor and where after sentencing, but while the matter was pending on appeal, 2016 Neb. Laws, L.B. 1094, struck section 29-2260(5) and added subsection (4) of this section, which precluded post-release supervision. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
Under the nonretroactive provision of section 28-105(7), the changes made in this section to the penalties for Class IV felony convictions by 2015 Neb. Laws, L.B. 605, do not apply to any offense committed before August 30, 2015. State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016).
It is clear that the Legislature did not intend to apply this section retroactively. State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016).
4. Miscellaneous
The statutory provisions of this section and section 28-105 relating to post-release supervision are mandatory, and a sentence that fails to impose post-release supervision when required is an appropriate matter for an appellate court's discretionary plain error review. State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022).
A transfer from juvenile court to criminal court does not eliminate the possibility of disposition under the juvenile code. In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).
Section 29-2204 and subsection (4) of this section do not require a sentence for a Class IV felony to have a minimum term less than the maximum term. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
If a defendant was previously subject to parole under preexisting sentences and subsequently sentenced in other cases either concurrently or consecutively to the prior sentences, subsection (4) of this section prevents the defendant from being subject to post-release supervision. State v. Lillard, 27 Neb. App. 824, 937 N.W.2d 1 (2019).
Subsection (4) of this section applies in a situation where sentences are imposed and the defendant is serving
preexisting sentences. State v. Lillard, 27 Neb. App. 824, 937 N.W.2d 1 (2019).
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.
Annotations
Both this section and section 29-2261 give the court the discretion to order further evaluations of the defendant prior to sentencing when it deems such evaluations necessary for determining the sentence to be imposed; neither statute provides that a defendant can or should request the evaluations. Trial counsel cannot be deficient for failing to request evaluations that the court itself could have ordered, but in its discretion deemed unnecessary. State v. St. Cyr, 26 Neb. App. 61, 916 N.W.2d 753 (2018).
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
The court cannot require that a fine be satisfied by applying jail time served without giving the defendant an opportunity to pay the fine. State v. Holloway, 212 Neb. 426, 322 N.W.2d 818 (1982).
Exemption of certain type or class of offense from the imposition of costs is not an unconstitutional classification. State ex rel. Douglas v. Gradwohl, 194 Neb. 745, 235 N.W.2d 854 (1975).
This and following section authorize taxation of costs only in cases where a crime has been charged and there has been a conviction. Luther v. State, 85 Neb. 674, 124 N.W. 117 (1909); Speer v. State, 64 Neb. 77, 89 N.W. 624 (1902).
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.
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
A person who is reconvicted after his or her original conviction was reversed on appeal cannot be assessed the costs of the original conviction because the original conviction was nullified and the slate was wiped clean. State v. Kula, 262 Neb. 787, 635 N.W.2d 252 (2001).
The independent act considered herein is not unconstitutional for failure to mention in the incidental provision for payment or exemption from payment of costs, nor for failing to refer to and repeal certain other statutes. State ex rel. Douglas v. Gradwohl, 194 Neb. 745, 235 N.W.2d 854 (1975).
Defendant is liable for only such costs made by state as there was actual, apparent or probable necessity for incurring, and is limited to costs incurred in establishing his guilt. Biester v. State, 65 Neb. 276, 91 N.W. 416 (1902).
It is the duty of court, upon conviction, to render judgment for costs of prosecution; may sentence defendant to imprisonment in county jail until costs are paid or security for payment is given. In re Newton, 39 Neb. 757, 58 N.W. 436 (1894); In re Dobson, 37 Neb. 449, 55 N.W. 1071 (1893).
Costs in criminal proceedings are the charges fixed by statute necessarily incurred in the prosecution of one charged with a public offense as compensation to the officers for their services. State v. Smith, 13 Neb. App. 477, 695 N.W.2d 440 (2005).
Expenses of extradition, in the amount fixed by section 29-752, are taxable costs. State v. Smith, 13 Neb. App. 477, 695 N.W.2d 440 (2005).
In determining what costs are actually, apparently, or probably necessary, the trial court is given discretion in determining those costs, and such determination will be reversed or modified only for an abuse of discretion. State v. Smith, 13 Neb. App. 477, 695 N.W.2d 440 (2005).
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.
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
1. Constitutionality
2. Nature of charge
3. Prior convictions
4. Habeas corpus
5. Miscellaneous
1. Constitutionality
A sentence of 10 to 15 years' imprisonment to be served consecutively to any sentence currently served, with a mandatory 10-year term, is not a cruel and unusual punishment of one who has been adjudged to be a habitual criminal under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
A sentence of 10 to 15 years' imprisonment to be served consecutively to any sentence currently served, with a mandatory 10-year term, is not an excessive sentence of one who has been adjudged to be a habitual criminal under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
Neither the state nor the federal Constitution requires the State to prove the fact of prior convictions beyond a reasonable doubt for purposes of sentence enhancement under this section. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
This section does not deprive one of fundamental fairness, equal protection, or federal due process of law. Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987).
The habitual criminal statute is not unconstitutional as applied. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).
Only errors which would make a conviction void or voidable under either the state or federal constitutions are cognizable in a post conviction relief action. Therefore, defendant could raise neither prejudice from remarks by a prosecution witness nor the sufficiency of evidence offered to establish his identity at the habitual criminal hearing on post conviction review. Nor could he challenge the voluntariness of a guilty plea which led to one of the prior convictions offered at the habitual criminal hearing where he failed to challenge it at the trial level. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).
Habitual criminal statute does not violate constitutional guarantees prohibiting cruel and unusual punishment nor does sentencing defendant hereunder subject him to double jeopardy. State v. Goodloe, 197 Neb. 632, 250 N.W.2d 606 (1977).
In construing habitual criminal act, court sustains a sensible interpretation, within constitutional requirements, effectuating the object of the Legislature rather than literal interpretation rendering absurd or unjust results. State v. Nance, 197 Neb. 257, 248 N.W.2d 339 (1976).
This act has been held valid on numerous occasions under Constitutions of the United States and this state. State v. Fowler, 193 Neb. 420, 227 N.W.2d 589 (1975).
This act does not contravene constitutional prohibition against cruel and unusual punishment, nor provide for punishment of a status. State v. Martin, 190 Neb. 212, 206 N.W.2d 856 (1973).
This section does not violate constitutional guarantees of due process and equal protection; habitual criminality is not a crime, but increases the punishment because of defendant's past conduct. State v. Losieau, 184 Neb. 178, 166 N.W.2d 406 (1969).
Habitual Criminal Act is constitutional. State v. Hoffman, 181 Neb. 356, 148 N.W.2d 321 (1967).
Habitual Criminal Act is constitutional, as it does not set out a distinct crime, but provides that repetition of criminal conduct justifies heavier penalties. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).
Where state seeks to have defendant punished under Habitual Criminal Act, it is proper to allege and prove prior convictions. Section is not ex post facto even though prior conviction occurred before its enactment. Taylor v. State, 114 Neb. 257, 207 N.W. 207 (1926).
Evidence held sufficient to support sentence received under Nebraska's habitual criminal statute, and not violative of the eighth amendment protection against cruel and unusual punishment on grounds of disproportionality, under the facts of this case. Fowler v. Parratt, 682 F.2d 746 (8th Cir. 1982).
The Nebraska statute is not an unconstitutional separation of powers. Pierce v. Parratt, 666 F.2d 1205 (8th Cir. 1981).
Habitual criminal statute held not unconstitutional under Eighth Amendment prohibition of cruel and unusual punishment merely because infrequently applied. Brown v. Parratt, 560 F.2d 303 (8th Cir. 1977).
The doctrine of stare decisis precludes the U.S. District Court from overruling two decisions of the 8th Circuit Court of Appeals holding that the Nebraska habitual criminal statute is not unconstitutional on the theory that it vests unreviewable sentencing authority in the prosecuting attorney. Goodloe v. Parratt, 453 F.Supp. 1380 (D. Neb. 1978).
The imposition of concurrent terms of ten years imposed upon a defendant who was convicted of willful reckless driving and operating a motor vehicle to avoid arrest, and who had been adjudged to be an habitual criminal, does not constitute cruel and unusual punishment. Goodloe v. Parratt, 453 F.Supp. 1380 (D. Neb. 1978).
Fact that only fourteen out of one hundred four of those eligible in county were charged as habitual criminals and only three determined to be such did not demonstrate application of statute was arbitrary and thus cruel and unusual punishment. Brown v. Parratt, 419 F.Supp. 44 (D. Neb. 1976).
Habitual criminal statute is not unconstitutional on grounds it gives county attorney selectivity in applying it, nor because it punishes a status rather than an act. Martin v. Parratt, 412 F.Supp. 544 (D. Neb. 1976).
2. Nature of charge
By its terms, subsection (1) of this section requires the triggering offense to be "a felony" before the habitual criminal statute will apply to the sentencing of the triggering offense. But in order to be one of the prior convictions that establishes habitual criminal status, this section does not require that the prior conviction was a "felony" per se; instead, it requires that the prior conviction resulted in a sentence of imprisonment for a term "of not less than one year." State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016).
In a habitual criminal proceeding, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year, (2) the trial court rendered a judgment of conviction for each crime, and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
A habitual criminal who is convicted of several felonies as the result of a multicount information must be sentenced on each conviction as a habitual criminal, even though the allegation with respect to his status as a habitual criminal is made with respect to only one charge. State v. Van Ackeren, 234 Neb. 535, 451 N.W.2d 707 (1990).
The rule announced in State v. Ellis, 214 Neb. 172, 333 N.W.2d 391 (1983), is not to be applied retroactively. Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987).
The Nebraska habitual criminal statute is not a separate offense but, rather, provides an enhancement of the penalty for the crime committed, with a minimum sentence of 10 years and a maximum sentence of 60 years for each conviction committed by one found to be a habitual criminal, even though, absent a conviction as a habitual criminal, the minimum or maximum sentence might be less. State v. Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984).
An offense which is a felony solely because of repetition cannot be counted as a felony for purposes of this statute. State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980).
In order for habitual criminal enhancement provisions to apply to an offense, it makes no difference whether the two prior sentences were to be served consecutively or concurrently, nor is it required that there be a time interval between conviction and commitment for the first offense and commission of the second offense. State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979).
Sentences should be in proportion to seriousness of offenses and offenders who offer greatest menace deserve greater punishment. State v. King, 196 Neb. 821, 246 N.W.2d 477 (1976).
This section makes no distinctions between malum in se and malum prohibitum offenses and no exceptions based on age of defendant at time of prior conviction. State v. Howard, 194 Neb. 521, 233 N.W.2d 573 (1975).
Sentence of twelve to fifteen years being well within statutory terms of ten to sixty years was not erroneous as excessive. State v. Silvacarvalho, 193 Neb. 447, 227 N.W.2d 602 (1975).
In view of defendant's past record, sentence of twenty to thirty years was not excessive. State v. Gaston, 193 Neb. 259, 226 N.W.2d 355 (1975).
The essential allegations in informations under this act are that defendant has been (1) twice previously convicted of crime, (2) sentenced, and (3) committed to prison for terms not less than one year each. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
Subsequent habitual criminal sentence invalid where valid sentence for particular crime had been imposed. State v. Brewer, 190 Neb. 667, 212 N.W.2d 90 (1973).
Separate penalty may not be imposed upon finding the defendant is an habitual criminal. State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298 (1971).
Where act committed prior to amendment of statute increasing maximum penalty from twenty to sixty years it was not prejudicial error to advise defendant that he was subject to imprisonment for sixty years since defendant received a ten-year sentence which was minimum under both old and new acts. State v. McGhee, 184 Neb. 352, 167 N.W.2d 765 (1969).
Habitual Criminal Act does not create a new offense but provides a greater penalty for repetition of criminal conduct. State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428 (1965); Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).
The charge of being a habitual criminal may be set out in a separate count in the information. Kennedy v. State, 171 Neb. 160, 105 N.W.2d 710 (1960).
Habitual Criminal Act does not create a new and separate criminal offense for which a person may be separately convicted. Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403 (1947).
Habitual Criminal Act does not set out a distinct crime, but provides that repetition of criminal conduct aggravates the offense and justifies heavier penalties. Jones v. State, 147 Neb. 219, 22 N.W.2d 710 (1946); Kuwitzsky v. O'Grady, 135 Neb. 466, 282 N.W. 396 (1938).
The State must prove all of the essential elements of the offense charged beyond any reasonable doubt. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).
Primary and significant factor under this statute is a felony conviction rather than the sentence, and age of defendant at time of his prior conviction under Nebraska law has no relevance. Kennedy v. Sigler, 397 F.2d 556 (8th Cir. 1968).
3. Prior convictions
This section requires evidence showing that a defendant has twice been ordered by a court to be committed for at least 1 year to a penal institution, but does not require evidence showing that a defendant actually served a full year in prison pursuant to such order of commitment. State v. Drake, 311 Neb. 219, 971 N.W.2d 759 (2022).
Enhancement under the habitual criminal statute did not constitute an impermissible double enhancement where the trigger offense of flight to avoid arrest was enhanced from a misdemeanor to a felony based on the defendant's willful, reckless operation of a motor vehicle, rather than prior criminal conduct. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
The use of a prior conviction to establish status as a felon and then enhance a sentence does not constitute impermissible double enhancement. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
A Nebraska court may use a prior conviction from another state for sentence enhancement under this section even though the conviction may not be used for enhancement in that other state. State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007).
To prove a prior conviction for enhancement purposes, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year; (2) the trial court rendered a judgment of conviction for each crime; and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel or had knowingly and voluntarily waived representation for those proceedings. State v. King, 272 Neb. 638, 724 N.W.2d 80 (2006); State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
The existence of a prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities. Specifically, in a proceeding for an enhanced penalty, the State has the burden to show that the records of a defendant's prior felony convictions, based on pleas of guilty, affirmatively demonstrate that the defendant was represented by counsel or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
Self-authenticated judicial records from another state showing that a defendant was represented by counsel during various stages of his or her jury trial and at sentencing on a felony charge are sufficient to establish that the defendant was represented by counsel at the time of the prior conviction by jury in that state. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
The determination of whether a defendant has prior convictions that may increase the penalty for a crime beyond the prescribed statutory maximum is not a determination that must be made by the jury. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
The State has the burden to prove the fact of prior convictions by a preponderance of the evidence. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
The trial court determines the fact of prior convictions based upon the preponderance of the evidence standard. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
Subsection (1)(a) of this section provides the specific enhancement mechanism where the current conviction is for a first degree sexual assault and the defendant has two or more prior felony convictions, at least one of which is for first degree sexual assault. State v. Burdette, 259 Neb. 679, 611 N.W.2d 615 (2000).
Prior convictions sought to be used for penalty enhancement under the habitual criminal statute cannot be attacked in a separate proceeding. State v. Kuehn, 258 Neb. 558, 604 N.W.2d 420 (2000).
To prove a prior conviction for enhancement purposes, the State need only show that at the time of the prior conviction defendant had, or waived, counsel. State v. Green, 240 Neb. 639, 483 N.W.2d 748 (1992); State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989).
This section requires that the prior convictions relied upon by the State, except for the first conviction, be for offenses committed after each preceding conviction, and all such prior convictions must precede the commission of the principal offense. State v. Wyatt, 234 Neb. 349, 451 N.W.2d 84 (1990); State v. Lieberman, 222 Neb. 95, 382 N.W.2d 330 (1986).
A challenge to a prior conviction may only be raised in a direct appeal or in a separate proceeding commenced for the express purpose of setting aside the judgment alleged to be invalid, and not in habitual criminal proceedings. State v. Johns, 233 Neb. 477, 445 N.W.2d 914 (1989).
Two or more prior convictions arising out of the same set of circumstances may not be used to impose an enhanced penalty. State v. Lopez, 215 Neb. 65, 337 N.W.2d 130 (1983).
In order to warrant an enhanced penalty under this section, the prior convictions, except the first, must be for offenses committed after each preceding conviction, and all such prior convictions must precede the commission of the principal offense. State v. Ellis, 214 Neb. 172, 333 N.W.2d 391 (1983), overruling State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979).
This section does not require that convictions and commitments considered in determining whether or not an individual is a habitual criminal necessarily must set a specific minimum incarceration of at least one year; rather, it only mandates exclusion of convictions and commitments where there occurred a pardon based upon innocence and the original commitment therein was for at least one year. Only in situations where such a pardon has occurred is the conviction and commitment disqualified from consideration in determining whether a defendant is a habitual criminal. State v. Luna, 211 Neb. 630, 319 N.W.2d 737 (1982).
The validity of a prior conviction offered to enhance punishment must be challenged at the habitual criminal hearing and failure to challenge it at that time waives the issue. Thus, the prior conviction may not be attacked in a petition under the Post Conviction Act. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).
Sentence as habitual criminal set aside where information failed to charge the requisite two prior convictions and sentences. State v. Davis, 199 Neb. 165, 256 N.W.2d 678 (1977).
Prior offenses are not limited to first conviction under Habitual Criminal Act. State v. Losieau, 182 Neb. 367, 154 N.W.2d 762 (1967).
Information which charges two prior convictions and prison sentences for terms of not less than one year each, and charges a felony, meets requirements of this act. Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).
Generally, one deemed to be a habitual criminal shall be punished by imprisonment for a mandatory minimum term of 10 years and a maximum term of not more than 60 years upon each conviction for a felony committed subsequent to the prior convictions used as the basis for the habitual criminal charge. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003).
Under subsection (1) of this section, a defendant convicted of a felony may be deemed a habitual criminal if the defendant has been (1) twice previously convicted of a crime, (2) sentenced, and (3) committed to prison for terms of not less than 1 year each. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003).
4. Habeas corpus
One found to be a habitual criminal may not be placed on probation. State v. Flye, 245 Neb. 495, 513 N.W.2d 526 (1994).
Prisoner cannot attack by habeas corpus increased punishment imposed under Habitual Criminal Act upon ground that he was mentally incompetent at time of former conviction. McAvoy v. Jones, 149 Neb. 613, 31 N.W.2d 740 (1948).
Party pleading guilty under this section is not entitled to release on habeas corpus where court imposing sentence had jurisdiction of the offense and of the person of the party sentenced hereunder. Alexander v. O'Grady, 137 Neb. 645, 290 N.W. 718 (1940).
A prima facie case of a prior, counseled conviction for enhancement purposes is established by producing appropriate record evidence which discloses that at a critical point in the proceedings⁚arraignment, trial, conviction, or sentencing⁚the defendant had either intelligently and voluntarily waived counsel or in fact was represented by counsel at one of those times. State v. Britt, 1 Neb. App. 245, 493 N.W.2d 631 (1992).
5. Miscellaneous
In imposing a sentence subject to a habitual criminal enhancement, a court is not required to pronounce that the sentence is the "mandatory minimum" for the Department of Correctional Services to treat it as such in calculating an inmate's mandatory discharge date. Gray v. Frakes, 311 Neb. 409, 973 N.W.2d 166 (2022).
The language of subsection (1) of this section does not require that all convictions enhanced pursuant to this section be served consecutively to each other. Unless the offense for which the defendant was convicted requires the sentence to run consecutively to other convictions, the court retains its discretion to impose a concurrent sentence. State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
This section does not require an enhanced penalty to be served consecutively to any other sentence imposed. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014).
Where section 28-507 did not require a mandatory minimum sentence, the fact that the punishments for crimes of burglary were enhanced under this section did not require the enhanced mandatory minimum penalties to be served consecutively. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014).
Good time credit under subsection (1) of section 83-1,107 does not apply to mandatory minimum sentences imposed on habitual criminals pursuant to subsection (1) of this section. Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).
Double jeopardy principles do not apply to habitual criminal enhancement proceedings under this section. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002); State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).
A hearing is required to ascertain whether a defendant qualifies as a habitual criminal. State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999).
This statute does not prescribe a separate offense but, rather, provides an enhancement of penalty for each conviction committed by one found to be a habitual criminal. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981).
When a person found guilty of a substantive crime as well as being a habitual criminal is improperly sentenced, both sentences must be set aside and the case remanded for proper sentencing. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981).
An enhanced sentence imposed under the provisions of the habitual criminal laws is not a new jeopardy or additional penalty for the same crime. It is simply a stiffened penalty for the latest crime which is considered to be an aggravated offense because it is a repetitive one. Addison v. Parratt, 208 Neb. 459, 303 N.W.2d 785 (1981).
A court is authorized to order a presentence investigation in any case, and it is proper to consider defendant's criminal record in passing sentence. State v. Bruns, 200 Neb. 612, 265 N.W.2d 210 (1978).
Where defendant resentenced to consecutive terms of imprisonment following vacation of prior concurrent sentences, held not an abuse of judge's discretion. State v. Davis, 200 Neb. 557, 264 N.W.2d 198 (1978).
Post conviction relief denied defendant sentenced to twenty to thirty years on a drug charge as an habitual criminal. State v. Bartlett, 199 Neb. 471, 259 N.W.2d 917 (1977).
Newspaper item citing the charges, including an habitual criminal action, pending against defendant prior to trial held not prejudicial to defendant in the absence of any evidence that the jurors knew of the article. State v. Addison, 198 Neb. 166, 251 N.W.2d 895 (1977).
Participation in a hearing on an habitual criminal charge without objection is a waiver of the notice required by this section, and a plea of nolo contendere or of guilty admits former convictions charged in information. State v. Graham, 192 Neb. 196, 219 N.W.2d 723 (1974).
On direct appeal from void sentence hereunder, Supreme Court has power to remand for a lawful sentence where the accused invoked appellate jurisdiction for correction of errors. State v. Gaston, 191 Neb. 121, 214 N.W.2d 376 (1974).
Plea of guilty or nolo contendere to information charging former convictions confesses them and no hearing for proof thereof is required hereunder. State v. Youngstrom, 191 Neb. 112, 214 N.W.2d 27 (1974).
Participation in hearing without objection was waiver of notice of hearing required by this section. State v. Huffman, 185 Neb. 417, 176 N.W.2d 506 (1970).
Definition of who is an habitual criminal stated. Huffman v. Sigler, 182 Neb. 290, 154 N.W.2d 459 (1967).
Evidence was sufficient to show that defendant was an habitual criminal. State v. Bundy, 181 Neb. 160, 147 N.W.2d 500 (1966).
Imposition of sentence as an habitual criminal was sustained. State v. Sedlacek, 178 Neb. 322, 133 N.W.2d 380 (1965).
During the trial the fact that the defendant is charged with being a habitual criminal shall not be disclosed to the jury. State v. Losieau, 174 Neb. 320, 117 N.W.2d 775 (1962).
Time in which to institute error proceedings in Supreme Court does not run pending hearing on status of defendant as a habitual criminal. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).
Defendant was properly convicted as an habitual criminal. Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951).
Imposition of increased penalty for subsequent offense is for court and not for jury. Haffke v. State, 149 Neb. 83, 30 N.W.2d 462 (1948).
"Good time" under section 83-1,108 should not be applied against a mandatory minimum sentence imposed under subsection (1) of this section. Hurbenca v. Nebraska Dept. of Corr. Servs., 16 Neb. App. 222, 742 N.W.2d 773 (2007).
A defendant sentenced as a habitual criminal to the mandatory 10-year sentence under this section is not entitled to good time credit pursuant to section 83-1,110 on his or her mandatory minimum sentence. Ebert v. Nebraska Dept. of Corr. Servs., 11 Neb. App. 553, 656 N.W.2d 634 (2003).
The phrase "mandatory minimum term of ten years" as used in this section means that a sentence served by a habitual criminal is not to be less than 10 years' imprisonment. Ebert v. Nebraska Dept. of Corr. Servs., 11 Neb. App. 553, 656 N.W.2d 634 (2003).
The challenge to a prior plea-based conviction that a defendant can raise in a habitual criminal allegation is limited to whether the defendant had or waived counsel. All other challenges constitute an impermissible collateral attack on the judgment, which must be raised by a direct appeal from the prior conviction. An uncounseled conviction by plea is not admissible to enhance a defendant's sentence absent a showing on the face of the conviction that the defendant knowingly, intelligently, and voluntarily waived counsel. Absent proof that the defendant knowingly, intelligently, and voluntarily waived counsel during a plea-based conviction, it is plain error to use such a conviction to enhance a defendant's sentence. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).
While being a habitual criminal is not a separate offense, the State nonetheless bears the burden of proving that enhancement is proper. In a proceeding for an enhanced penalty, the State has the burden to show that the record of a defendant's prior conviction, based on a plea of guilty, affirmatively demonstrates that the defendant was represented by counsel, or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right. State v. Gray, 8 Neb. App. 973, 606 N.W.2d 478 (2000).
Failure of counsel at habitual offender proceedings, at which relator was allowed to plead guilty, to discover that relator had not been represented by counsel at previous criminal proceedings at which relator received underlying felony convictions constituted ineffective assistance of counsel. Tinlin v. Parratt, 680 F.2d 48 (8th Cir. 1982).
Defendant's voluntary plea of guilty to forgery, count under this section having been dismissed under plea bargaining, indicated actual knowing waiver of speedy trial. Becker v. State, 435 F.2d 157 (8th Cir. 1971).
Validity of prior sentence not irrelevant in determining whether sentence was properly imposed under this section, even though failure to have counsel present at time of sentencing can normally be remedied by resentencing. Losieau v. Sigler, 406 F.2d 795 (8th Cir. 1969).
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
1. Evidence of former judgment and commitment
2. Miscellaneous
1. Evidence of former judgment and commitment
At a second habitual criminal hearing following remand, the law-of-the-case doctrine operated to preclude the appellate court from reconsidering, for enhancement purposes, the validity of one of the defendant's prior convictions when defendant conceded its validity in his first direct appeal and did not present materially or substantially different facts regarding that conviction on remand. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
Copies of judicial records related to a defendant's conviction and sentencing in another state that are certified by a deputy clerk for the clerk of the district court in that state as a true and correct copy of the original and impressed with the court's official seal are self-authenticating under section 27-902 and do not require extrinsic evidence of authenticity for admission. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
In a habitual criminal proceeding, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year, (2) the trial court rendered a judgment of conviction for each crime, and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
In habitual criminal proceedings, the existence of a prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
An authenticated record establishing a prior conviction of a defendant with the same name is prima facie sufficient to establish identity for the purpose of enhancing punishment under the provisions of this section and, in the absence of any denial or contradictory evidence, is sufficient to support a finding by the court that the accused has been convicted prior thereto. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).
This section does not confine proof of the defendant's prior convictions to the documents specifically mentioned. State v. Coffman, 227 Neb. 149, 416 N.W.2d 243 (1987).
Judicial records of prior convictions held prima facie sufficient to establish defendant's identity for punishment enhancement. State v. Mills, 199 Neb. 295, 258 N.W.2d 628 (1977).
In the absence of denial or contradictory evidence, an authenticated record of a prior conviction of a defendant with the same name is sufficient to establish identity. State v. Micek, 193 Neb. 379, 227 N.W.2d 409 (1975).
A previous judgment and commitment in the same court may be proved by a certified copy of the judgment and commitment. State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974).
Certified transcript of judgment of conviction constituted prima facie evidence of former conviction. State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966).
This section is a "statutory recipe" for proving former judgments and commitments for habitual criminal purposes and the Legislature has expressly provided that a duly authenticated copy of the former judgment and commitment is competent and prima facie evidence thereof. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003).
There is no requirement that the State prove a prior conviction by a duly authenticated copy of the former judgment and commitment if the defendant admits that he or she was convicted as alleged in the complaint. The State may meet its burden of proving a prior conviction by providing copies of unsigned minute entries when such copies are duly authenticated copies of prior criminal proceedings. State v. Fletcher, 8 Neb. App. 498, 596 N.W.2d 717 (1999).
A certified copy of the judgment which showed that the defendant was convicted and sentenced and a certified copy of the sheriff's return were in substantial compliance with the requirement of proof of commitment for purposes of this section. State v. Lomack, 4 Neb. App. 465, 545 N.W.2d 455 (1996).
2. Miscellaneous
Self-authenticated judicial records from another state showing that a defendant was represented by counsel during various stages of his or her jury trial and at sentencing on a felony charge are sufficient to establish that the defendant was represented by counsel at the time of the prior conviction by jury in that state. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
The defendant failed to preserve for appellate review a challenge to the admission of exhibits reoffered at his second habitual criminal hearing following remand when counsel's only stated ground for the objection was that he was not the counsel of record at the original hearing and was not sure the proper objections were made to the exhibits at the original hearing. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
This section does not confine proof of the defendant's prior convictions to the document specifically mentioned. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
An enhanced sentence imposed under the provisions of the habitual criminal laws is not a new jeopardy or additional penalty for the same crime. It is simply a stiffened penalty for the latest crime which is considered to be an aggravated offense because it is a repetitive one. Addison v. Parratt, 208 Neb. 459, 303 N.W.2d 785 (1981).
Defendant is foreclosed from attacking on constitutional grounds a prior conviction unless objection made at time of introduction into evidence. State v. McGhee, 184 Neb. 352, 167 N.W.2d 765 (1969).
This section does not confine the proof on the issue of defendant being an habitual criminal wholly to the documents specified. State v. Bundy, 181 Neb. 160, 147 N.W.2d 500 (1966).
It is proper to set out facts invoking application of Habitual Criminal Act either in the count charging the principal crime or in a separate count in the information. Jones v. State, 147 Neb. 219, 22 N.W.2d 710 (1946).
Judgment imposed under Habitual Criminal Act cannot be set aside on habeas corpus because it does not specify the offense of which a person is convicted. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).
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.
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.
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.
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.
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.
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.
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.
Cross References
Municipal court, transfer of duties, see sections 24-515 and 24-593.
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
Interstate Compact for Adult Offender Supervision, see section 29-2639.
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.
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.
Cross References
Juvenile court, offices for officers and employees, see section 43-2,113.
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
Interstate Compact for Adult Offender Supervision, see section 29-2639.
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.
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.
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
While performing their duties under this section, juvenile probation officers are considered to be the personnel of the separate juvenile courts they serve. In re Interest of Chad S., 263 Neb. 184, 639 N.W.2d 84 (2002).
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
Nebraska Capital Expansion Act, see section 72-1269.
Nebraska State Funds Investment Act, see section 72-1260.
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.
Cross References
Nebraska Capital Expansion Act, see section 72-1269.
Nebraska State Funds Investment Act, see section 72-1260.
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.
Annotations
1. Probation
2. Sentencing
3. Discretion
4. Miscellaneous
1. Probation
When the sentence alleged to be excessively lenient is one of probation, it is necessary for the trial court and the reviewing appellate court to consider the provisions of this section. State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001).
When determining whether to impose probation, the trial court must consider the factors set forth in this section. On appeal, an appellate court must likewise consider this section in determining whether probation may be imposed, whether reviewing a sentence for excessiveness pursuant to section 29-2308 or for leniency under section 29-2322. State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).
Denial of probation and imposition of a sentence within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion. State v. Thomas, 238 Neb. 4, 468 N.W.2d 607 (1991); State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991).
The Supreme Court will not overturn an order or sentence of the trial court which denies probation unless there has been an abuse of discretion. State v. Swails, 195 Neb. 406, 238 N.W.2d 246 (1976).
An order granting probation is a sentence under section 29-2260(4), and for review a motion for new trial must be filed within ten days, but no motion for new trial is required for review of order revoking probation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975).
A lack of cooperation prior to sentencing could be a strong indication that the lesser restrictions of probation may not be sufficient to effect a purposeful probation. State v. Gundlach, 192 Neb. 692, 224 N.W.2d 167 (1974).
2. Sentencing
A sentence of probation is not excessively lenient, even though the crimes were serious with an egregious set of facts, where the offender was convicted of a Class II felony for which the law prescribed no mandatory minimum sentence, the presentence investigation report showed he is at low risk to reoffend, and the psychological evaluation recognized he was around 14 years of age at the time of the offenses and has not subsequently engaged in any other known or reported forms of sexual misconduct. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
Indeterminate sentence of not less than 4 nor more than 15 years' imprisonment was not excessive considering deliberate and premeditated manner in which defendant committed burglary, and in considering his continued disrespect for the law as shown by numerous past violations of the law and probation. State v. Peterson, 236 Neb. 450, 462 N.W.2d 423 (1990).
Sentence of life imprisonment for sixteen year old who pleaded guilty to second degree murder of his father is not excessive where a lesser sentence would have depreciated the seriousness of the offense. State v. Wredt, 208 Neb. 184, 302 N.W.2d 701 (1981).
In sentencing for a felony not involving the death penalty, there is no requirement that the judge conduct a case-by-case review of similar sentencings in that jurisdiction. State v. Glover, 207 Neb. 487, 299 N.W.2d 445 (1980).
Sentence for concurrent terms of seven to ten years on sexual assault charge and one year on third degree assault was not excessive where defendant used a knife and threatened death. State v. Glover, 207 Neb. 487, 299 N.W.2d 445 (1980).
Sentence of imprisonment for one year not excessive where defendant convicted of assault with intent to inflict great bodily injury by intentionally driving auto into victims. State v. McCurry, 198 Neb. 673, 254 N.W.2d 698 (1977).
The violence with which the offense was committed and that probation would depreciate the seriousness thereof or promote disrespect for law were valid reasons for sentencing first offender to imprisonment. State v. Keen, 196 Neb. 291, 242 N.W.2d 863 (1976).
Defendant's sentence of seven years for embezzlement, which under law was sentence of one to seven years, was not excessive under facts in this case. State v. McMullen, 195 Neb. 796, 240 N.W.2d 844 (1976).
Sentence of imprisonment is proper when record shows risk of further criminal conduct, and the most effective correctional treatment will be provided by a correctional facility. State v. Dedrick, 194 Neb. 500, 233 N.W.2d 777 (1975).
A sentence to imprisonment ought not exceed the minimum period consistent with protection of the public, gravity of the offense, and rehabilitative needs of the defendant. State v. Sturm, 189 Neb. 299, 202 N.W.2d 381 (1972).
3. Discretion
The language in this section which provides that the court "may withhold sentence of imprisonment" is merely a guideline and does not mandate a sentence of probation. However, this section does not give the sentencing court absolute discretion to impose either a sentence of imprisonment or a sentence of probation, and the sentencing court committed no error in interpreting this section and section 29-2911 to preclude the possible imposition of probation in this case. State v. Thornton, 225 Neb. 875, 408 N.W.2d 327 (1987).
The part of this section providing that the court may withhold sentence of imprisonment is a guideline for the court and is not mandatory. State v. Gillette, 218 Neb. 672, 357 N.W.2d 472 (1984).
The granting of probation as opposed to the imposing of a sentence is a matter which is left to the sound discretion of the trial court, and, absent a showing of abuse, the trial court's denial of probation will not be disturbed on appeal. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982).
The court's discretion is not controlled by this section. State v. Machmuller, 196 Neb. 734, 246 N.W.2d 69 (1976).
The Supreme Court will not overturn an order of the trial court which denies probation unless there has been an abuse of discretion. State v. Purviance, 194 Neb. 541, 233 N.W.2d 788 (1975).
This section gives recognition to fact that probation may be more effective and less expensive than imprisonment, but trial judge did not abuse discretion in sentencing defendant for whom repeated probation for a series of offenses has been tried and failed. State v. Dovel, 189 Neb. 173, 201 N.W.2d 820 (1972).
There being nothing in the record to show sentence within limits prescribed herein was not a legitimate exercise of judicial discretion to consider the nature and circumstances of the crime and the history, character, and condition of the offender it will not be disturbed on appeal. State v. Arp, 188 Neb. 493, 197 N.W.2d 703 (1972).
This section lists grounds to be considered by the sentencing court, but specifically provides it is not to control his discretion. State v. Cottone, 188 Neb. 102, 195 N.W.2d 196 (1972).
Even had standards herein been in effect at time of sentencing, refusal to grant probation would not have been abuse of discretion under facts in this case. State v. Clifton, 187 Neb. 714, 193 N.W.2d 558 (1972).
Subsection (2) of this section gives the court discretion to withhold a sentence of imprisonment for an offender convicted of either a misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is not specifically required. State v. McCain, 29 Neb. App. 981, 961 N.W.2d 576 (2021).
4. Miscellaneous
This section does not require the trial court to articulate on the record that it has considered each sentencing factor, and it does not require the court to make specific findings as to the factors and the weight given them. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
The defendant's sentence of 2 years' imprisonment with a 12-month period of post-release supervision for possession of a controlled substance was vacated pursuant to State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971), where the defendant was sentenced concurrently for two Class IV felonies and a Class W misdemeanor and where after sentencing, but while the matter was pending on appeal, 2016 Neb. Laws, L.B. 1094, struck subsection (5) of this section and added section 29-2204.02(4), which precluded post-release supervision. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
There is no repugnancy or conflict between this section, section 29-2911, and section 29-2915, and this section was not repealed by implication by enactment of section 29-2911 or 29-2915. State v. Thornton, 225 Neb. 875, 408 N.W.2d 327 (1987).
Claimed intemperate remarks of judge at sentencing indicated a concern for the provisions of this section. State v. Glouser, 193 Neb. 186, 226 N.W.2d 134 (1975).
Anomie in the criminal process is a variable not to be forgotten, although its weight is light in any one case. State v. West, 188 Neb. 579, 198 N.W.2d 204 (1972).
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.
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.
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
Licensed Professional Counselors Interstate Compact, see section 38-4201.
Medicine and Surgery Practice Act, see section 38-2001.
Mental Health Practice Act, see section 38-2101.
Uniform Credentialing Act, see section 38-101.
Annotations
1. Sentence
2. Presentence report
3. Evaluations
1. Sentence
Although a trial judge should take into account facts obtained from a victim's statement under the provisions of this section, as he or she should consider all facts pertinent to sentencing, a judge must not and cannot allow a victim's judgments and conclusions to be substituted for those of the court in imposing sentence. State v. Carlson, 225 Neb. 490, 406 N.W.2d 139 (1987).
It was not error for the trial court to consider certain confidential letters addressed to the court because a trial judge has broad discretion in the sources and type of evidence he may use to assist him in determining the kind and extent of punishment to be imposed, and the latitude allowed a sentencing judge in such instances is almost without limitation as long as it is relevant to the issue. State v. Porter, 209 Neb. 722, 310 N.W.2d 926 (1981).
A sentencing judge has broad discretion as to the source and type of evidence or information which may be used as assistance in determining the kind and extent of the punishment to be imposed, and the judge may consider probation officer reports, police reports, affidavits, and other information, including his own personal observations. A sentencing judge is not bound by the recommendations of the probation officer in determining the sentence to be imposed. State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981).
When imposing sentence, a judge should consider, among other things, the offender's history of delinquency or criminality including offenses committed while on probation. State v. Williams, 194 Neb. 483, 233 N.W.2d 772 (1975).
While observation and examination are authorized hereunder for the purpose of aiding the court in its disposition of the case, a sentence to the Lincoln Regional Center for a period within the discretion of the director is void. State v. Shelby, 194 Neb. 445, 232 N.W.2d 23 (1975).
In determining the kind and extent of punishment to be imposed, the judge may consider probation officer's reports, police reports, affidavits, and other information, including his own personal observations. State v. Holzapfel, 192 Neb. 672, 223 N.W.2d 670 (1974).
2. Presentence report
The presentence investigation and report shall include, when available, any submitted victim statements and an analysis of the circumstances attending the commission of the crime and the offender's history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits. The presentence investigation and report may also include any other matters the probation officer deems relevant or the court directs to be included. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
It is "the better practice" for a sentencing court to issue a more direct advisement of the statutory right to a presentence investigation, conduct an explicit inquiry into the voluntariness of a defendant's waiver of that right, and make explicit findings with respect to a waiver. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
A defendant's right to a presentence investigation under subsection (1) of this section may be waived. State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).
Waiver under subsection (1) of this section must be knowingly and intelligently made. State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).
Under the first sentence of subsection (6) of this section, a prosecutor is included in the category of "others entitled by law to receive" the information in the presentence investigation report, and therefore, the sentencing court is not required to make a determination of the defendant's best interests before allowing the prosecutor to review the presentence investigation report. State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008).
Under former law, this section requires a sentencing panel to utilize a presentence investigation only in the selection phase of capital sentencing, which phase occurs after the defendant has been determined by the jury to be eligible for the death penalty. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
A defendant may examine a presentence report with his or her attorney, subject to the court's supervision and redaction of any confidential or privileged information. State v. True, 236 Neb. 274, 460 N.W.2d 668 (1990).
It is impractical to require successive, repetitive presentence investigations when an earlier investigation is available and satisfies the requirements of this section. State v. Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986).
Requirement that presentence investigation include any written statements submitted by the victim was substantially complied with and there was no prejudice to the defendant, where the presentence report included a report of the victim's statement to the police and his deposition. State v. Todd, 223 Neb. 462, 390 N.W.2d 528 (1986).
Presentence investigation and report shall include any information deemed relevant by the probation officer or which the court directs be included. State v. Goodpasture, 215 Neb. 341, 338 N.W.2d 446 (1983).
Defendant was precluded from arguing that this section applies to misdemeanors where she advised the trial court, after the court offered to have a presentence report prepared, that she did not desire to have one provided. State v. Hiross, 211 Neb. 319, 318 N.W.2d 291 (1982).
Use of presentence report required only in felony cases. State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977).
Presentence investigation report may include police reports, affidavits, and county attorney memoranda with other information in case of conviction for second-degree murder. State v. Robinson, 198 Neb. 785, 255 N.W.2d 835 (1977).
Necessity for successive presentence investigations before revoking probation is discretionary with sentencing judge. State v. Snider, 197 Neb. 317, 248 N.W.2d 342 (1977).
No request was made for copy of presentence report, and trial judge did not err in not offering it. State v. Keller, 195 Neb. 209, 237 N.W.2d 410 (1976).
A presentence report is required hereunder only if the offense involved is a felony. State v. Cardin, 194 Neb. 231, 231 N.W.2d 328 (1975).
Where sentencing judge examined presentence report ordered earlier by judge who accepted plea of guilty, requirements of this section were met. State v. Hilderbrand, 193 Neb. 233, 226 N.W.2d 353 (1975).
Unless it is impractical to do so, after a felony conviction, the court must order a presentence investigation and give written report thereof due consideration before pronouncing sentence. State v. Zobel, 192 Neb. 480, 222 N.W.2d 570 (1974).
Unless it is impractical to do so, when an offender has been convicted of a felony, 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. State v. Jackson, 192 Neb. 39, 218 N.W.2d 430 (1974).
District court erred in denying defendant or his counsel access to part of presentence report relating to record of prior arrests and convictions but, under facts in this proceeding, the error was harmless. State v. Richter, 191 Neb. 34, 214 N.W.2d 16 (1973).
The mandated presentence investigation is not required before a felony sentencing when it is "impractical" or when the defendant waives the right to a presentence investigation. State v. Kellogg, 10 Neb. App. 557, 633 N.W.2d 916 (2001).
Pursuant to subsection (1) of this section, the use of a presentence investigation before sentencing an offender is required only as to those convicted of felonies. State v. Turco, 6 Neb. App. 725, 576 N.W.2d 847 (1998).
A presentence report is 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, or others entitled by law to receive such information. The group of others entitled by law to receive such information does not include jurors in a criminal trial. State v. Owen, 1 Neb. App. 1060, 510 N.W.2d 503 (1993).
3. Evaluations
Whether to order an offender to submit to psychiatric observation and evaluation is a matter within the discretion of the trial court. State v. Dethlefs, 239 Neb. 943, 479 N.W.2d 780 (1992).
Trial judge did not abuse discretion in denying defendant's untimely request for additional evaluations as to defendant's status as a mentally disordered sex offender. State v. Perdue, 222 Neb. 679, 386 N.W.2d 14 (1986).
Both section 29-2204.03 and this section give the court the discretion to order further evaluations of the defendant prior to sentencing when it deems such evaluations necessary for determining the sentence to be imposed; neither statute provides that a defendant can or should request the evaluations. Trial counsel cannot be deficient for failing to request evaluations that the court itself could have ordered, but in its discretion deemed unnecessary. State v. St. Cyr, 26 Neb. App. 61, 916 N.W.2d 753 (2018).
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
Community Corrections Act, see section 47-619.
DNA Identification Information Act, see section 29-4101.
Annotations
1. Conditions of probation, generally
2. Restitution and expenses
3. Jail confinement and custodial sanctions
1. Conditions of probation, generally
The conditions that may be placed on an offender sentenced to probation by a sentencing court authorize a no-contact condition of probation when it is reasonable and necessary to the rehabilitative goals of probation. State v. Rieger, 286 Neb. 788, 839 N.W.2d 282 (2013).
Whether a condition of probation imposed by the sentencing court is authorized by statute is a question of law. State v. Rieger, 286 Neb. 788, 839 N.W.2d 282 (2013).
A court may revoke a defendant's driver's license as a condition of probation if it is reasonably related to a defendant's rehabilitation. State v. Becker, 282 Neb. 449, 804 N.W.2d 27 (2011).
Denying a probationer the ability to earn good time credit as provided for by section 47-502 is not a condition of parole authorized by statute. State v. Lobato, 259 Neb. 579, 611 N.W.2d 101 (2000).
A probationer sentenced to an intermittent sentence is not entitled to a reduction of this sentence pursuant to section 47-502. State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992).
Condition of probation prohibiting defendant from circulating or promoting the circulation of any initiative or referendum petition during the period of probation is authorized by subsection (1) and subdivision (2)(p) of this section. State v. Katzman, 228 Neb. 851, 424 N.W.2d 852 (1988).
A judgment imposing reasonable terms of probation is a sentence. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988).
Consent to search real and personal property at any time, by any law enforcement or probation officer, without issuance of a search warrant, and the waiving of extradition in the event probation is violated were held to be reasonable conditions under this section. State v. Lingle, 209 Neb. 492, 308 N.W.2d 531 (1981).
A condition in a probation order requiring a person convicted of a drug offense to permit searches of his person or property is valid, enforceable, and constitutional if it is applied in a reasonable manner and contributes to the probationer's rehabilitation. State v. Morgan, 206 Neb. 818, 295 N.W.2d 285 (1980).
A requirement that one convicted of driving while intoxicated attend and complete and pay for an alcohol abuse course is a valid condition of probation. State v. Muggins, 192 Neb. 415, 222 N.W.2d 289 (1974).
Individuals in the county or district court can be placed on probation with conditions related to the rehabilitation of the offender. State v. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018).
A condition of probation requiring a defendant to pay child support toward arrearages when child support is unrelated to the defendant's conviction is authorized by subsection (2)(c) of this section. State v. McCrimon, 15 Neb. App. 452, 729 N.W.2d 682 (2007).
2. Restitution and expenses
Condition of probation requiring defendant to reimburse county for the expenses incurred in providing a court-appointed attorney is within court's authority to require offenders "(t)o satisfy any other conditions reasonably related to the rehabilitation of the offender" but such authority is limited by section 29-3908. State v. Wood, 245 Neb. 63, 511 N.W.2d 90 (1994).
An order to make restitution as a condition of probation is limited to the direct loss resulting from that offense of which a defendant has been convicted. State v. Escamilla, 237 Neb. 647, 467 N.W.2d 59 (1991).
As a condition of probation upon a conviction of a criminal offense, the court may require restitution to the victim for pain and suffering, in addition to medical expenses and lost wages. State v. Behrens, 204 Neb. 785, 285 N.W.2d 513 (1979).
Restitution and reparation are not limited to the market value of the stolen property nor is the state required to establish the exact amount of the loss or damage caused by the crime. State v. McClanahan, 194 Neb. 261, 231 N.W.2d 351 (1975).
3. Jail confinement and custodial sanctions
Custodial sanctions are distinct from jail time under subdivision (2)(b) of this section. State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
Jail time under subdivision (2)(b) of this section is a predetermined, definite term of jail time up to the term authorized by the statute; that term may be served periodically, but it is not conditional. State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
The general provisions of subsection (1) and subdivision (2)(r) of this section do not confer the power to impose jail time as part of sentences of probation; jail time as a condition of probation may be granted only under specific statutory authority. State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).
The amendment by 2015 Neb. Laws, L.B. 605, removing the provision of this section relating to jail time as a condition of probation for felony offenses did not implicitly repeal the provision in section 60-6,197.03(6) that required 60 days in jail as a condition of probation. State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).
Where a plea agreement is silent as to conditions of probation, it would not be a breach of that plea agreement for the State to recommend incarceration as a condition of probation at sentencing. State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).
Pursuant to subsection (2)(b) of this section, the mandate of section 60-6,197.03(6) that an order of probation "shall also include" 60 days' confinement does not conflict with the provision that a trial court may require the offender to be confined for a period not to exceed 180 days; the minimum jail term for a period granted probation for an offense punishable under section 60-6,197.03(6) is 60 days, and the maximum is 180 days. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
As a general statement, jail confinement as a form of probation is not contrary to law. State v. Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991).
Under this provision, jail time is to be imposed by judges. The trial court may not delegate the authority to impose a jail sentence, or to eliminate a jail sentence, to a nonjudge. State v. Lee, 237 Neb. 724, 467 N.W.2d 661 (1991).
This section authorizes confinement in the county jail for a period not to exceed ninety days as a condition of probation in cases of conviction for a misdemeanor as well as a felony. State v. Behrens, 204 Neb. 785, 285 N.W.2d 513 (1979).
This subsection does not authorize a sentence to jail as condition of probation. State v. Nuss, 190 Neb. 755, 212 N.W.2d 565 (1973).
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.
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.
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.
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.
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.
Cross References
Interstate Compact for Adult Offender Supervision, see section 29-2639.
Annotations
When a court sentences a defendant to post-release supervision, it may impose any conditions of post-release supervision authorized by statute. State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).
Stale financial affidavits and earlier orders allowing a defendant to proceed in forma pauperis were insufficient to show the defendant's financial condition at the time he requested that the court waive payment of probation fees. State v. Jensen, 299 Neb. 791, 910 N.W.2d 155 (2018).
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
Nebraska Capital Expansion Act, see section 72-1269.
Nebraska State Funds Investment Act, see section 72-1260.
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
Subsection (3) of this section only applies during the term of probation and does not provide authority for when an offender is still incarcerated and not yet a probationer. State v. Sullivan, 313 Neb. 293, 983 N.W.2d 541 (2023).
An order denying a motion to modify or eliminate a probation condition is a final, appealable order. State v. Paulsen, 304 Neb. 21, 932 N.W.2d 849 (2019).
Once the State invokes the revocation process under section 29-2268 and a court finds a violation of post-release supervision, the court lacks the power to invoke the early discharge provisions of this section. State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).
This section authorizes a court to commute the terms of probation, but not the original sentence. State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017).
Where a court is required to revoke a driver's license as part of a judgment of conviction, it is part of the offender's punishment for the crime, and is not considered a term of probation which can be altered under this section. State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017).
The maximum term over which a sentence of probation may run for a misdemeanor is two years, unless it is a second offense misdemeanor. State v. Ladehoff, 229 Neb. 111, 425 N.W.2d 352 (1988).
Terms of probation may be terminated, modified, or extended under lawful limits by the trial court. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988).
The provisions for discharge from probation and removal of civil disabilities and disqualifications do not apply to a jail sentence already served. State v. Adamson, 194 Neb. 592, 233 N.W.2d 925 (1975).
A trial court was not authorized to sentence a defendant for a "second offense misdemeanor" under subsection (1) of this section, even though the defendant, convicted of misdemeanor offense, had committed a number of prior misdemeanors, where the charge against the defendant did not specify "second offense." State v. Mlynarik, 16 Neb. App. 324, 743 N.W.2d 778 (2008).
The Nebraska court's expunction of the defendant's conviction for possession of marijuana with intent to distribute, after defendant had served approximately half of probation, did not expunge the record for purposes of federal statute relating to receipt of firearms in interstate commerce by persons previously convicted of a crime punishable by imprisonment exceeding one year. United States v. Germaine, 720 F.2d 998 (8th Cir. 1983).
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
Child Care Licensing Act, see section 71-1908.
Children's Residential Facilities and Placing Licensure Act, see section 71-1924.
Nebraska Rules of the Road, see section 60-601.
Sex Offender Registration Act, see section 29-4001.
Annotations
1. Application
2. Probation and civil disabilities
3. Convictions, set aside
4. Miscellaneous
1. Application
Being placed on probation is not a prerequisite to the application of this section. State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).
Subsection (2) of this section applies after (1) the satisfactory fulfillment of the conditions of probation for the entire period, (2) the discharge from probation prior to termination of the period of probation, or (3) after the payment of any fine if the defendant has been sentenced to a fine only. State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).
2. Probation and civil disabilities
While the Legislature is free to expand the statutory list of civil disabilities which are not restored by a judgment setting aside and nullifying a conviction pursuant to this section, such amendments cannot impair rights vested by judgments entered under prior versions of this section. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
The removal of civil disabilities operates prospectively from the date of the order setting aside a defendant's conviction. McCray v. Nebraska State Patrol, 270 Neb. 225, 701 N.W.2d 349 (2005).
The provisions for discharge from probation and removal of civil disabilities and disqualifications do not apply to a jail sentence already served. State v. Adamson, 194 Neb. 592, 233 N.W.2d 925 (1975).
The Nebraska court's expunction of the defendant's conviction for possession of marijuana with intent to distribute, after defendant had served approximately half of probation, did not expunge the record for purposes of federal statute relating to receipt of firearms in interstate commerce by persons previously convicted of a crime punishable by imprisonment exceeding one year. United States v. Germaine, 720 F.2d 998 (8th Cir. 1983).
3. Convictions, set aside
The decision of whether to set aside a conviction pursuant to this section is discretionary, and in exercising its discretion, the court must consider the factors specified therein. State v. Brunsen, 311 Neb. 368, 972 N.W.2d 405 (2022).
The statutory mandate of this section that the court consider "[a]ny other information the court considers relevant" does not empower the court to rest its decision on irrelevant or erroneous facts or misperceptions of the law. State v. Brunsen, 311 Neb. 368, 972 N.W.2d 405 (2022).
Confinement in the county jail as a condition of probation does not bar a person from seeking to have a conviction set aside pursuant to subsection (2) of this section. State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014).
Subsection (2) of this section authorizes any person convicted of a misdemeanor or a felony and placed on probation or sentenced to a fine only to petition the sentencing court to set aside the conviction after satisfactory fulfillment of the conditions of probation for the entire period, or after early discharge, and payment of any fine. State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014).
Amendments to this section that allow a set-aside conviction to be used for purposes of determining risk under the Sex Offender Registration Act do not apply retroactively to a sex offender whose prior convictions for non-sex-offenses were set aside prior to the amendments, and thus, the offender's set-aside convictions could not be used for risk assessment under the act. Orders setting aside the offender's convictions vested him with the right to have the set-aside convictions used only for those purposes listed in this section at the time the orders were entered. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
An order setting aside a conviction is a final judgment which nullifies the conviction and removes all civil disabilities which were not exempted from restoration by this section as it existed on the date of the order. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
The fact that use of a conviction that has been set aside under this section is logically consistent with other uses enumerated in this section does not permit a court to read such language into this section. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
This section indicates that it is the province of the sentencing court to set aside a conviction and gives guidelines for determination of whether to set aside a conviction. State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).
When the Legislature enacted the 1993 amendment to subsection (2) of this section, it intended to include those who had been fined only within the class of those who could have their convictions set aside. State v. Wester, 269 Neb. 295, 691 N.W.2d 536 (2005).
4. Miscellaneous
This section is constitutional. It does not violate the separation of powers clause of the Nebraska Constitution, article II, section 1, as an infringement of the power expressly delegated to the Board of Pardons. State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002).
Where defendant admitted a felony conviction, his introduction of order terminating probation was permissible and did not open matter to further development. State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976).
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.
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.
Annotations
Where a complete record of the evidence and testimony is made at a probation revocation hearing, the court is not required to specify which particular evidence, exhibits, or witnesses were relied on for its judgment. State v. Jaworski, 194 Neb. 645, 234 N.W.2d 221 (1975).
A written report from the probation officer is not a jurisdictional requirement in a probation revocation proceeding. State v. Kartman, 192 Neb. 803, 224 N.W.2d 753 (1975).
Where errors in state probation revocation proceedings were not prejudicial to the probationer, he was not entitled to federal habeas corpus. Kartman v. Parratt, 397 F.Supp. 531 (D. Neb. 1975).
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.
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.
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.
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.
Annotations
1. Burden of proof
2. Defendant's rights
3. Miscellaneous
1. Burden of proof
Pursuant to subsection (1) of this section, the court shall not revoke probation except after a hearing upon proper
notice where the violation of probation is established by clear and convincing evidence. State v. Phillips, 302 Neb.
686, 924 N.W.2d 699 (2019).
The minimal standard of proof under the Due Process Clause in the case of violations of probation is a preponderance of the evidence. State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011).
While the revocation of probation is a matter entrusted to the discretion of the trial court, unless the probationer admits to a violation of a condition of probation, the state must prove the violation by clear and convincing evidence. State v. Finnegan, 232 Neb. 75, 439 N.W.2d 496 (1989).
Violation of a single condition of probation established by clear and convincing evidence can support revocation. State v. Clark, 197 Neb. 42, 246 N.W.2d 657 (1976).
The violation of an order of probation must be established by clear and convincing evidence. State v. Parker, 191 Neb. 263, 214 N.W.2d 630 (1974).
2. Defendant's rights
In a probation revocation proceeding, where the unavailability of the witness was shown and the court found indicia of reliability and corroboration of the witness’ hearsay statements through other evidence, good cause had been shown and the court could rely on the hearsay statements in the absence of cross-examination of the witness. State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014).
If a defendant is incarcerated in another jurisdiction and the State wishes to charge the defendant with violating probation, it provides the defendant with reasonably "prompt consideration" of the charge if the State invokes the detainer process and notifies the defendant of the pending revocation proceedings. Absent unusual circumstances, the State is not required to extradite the defendant to revoke probation and sentence the defendant before the term of the defendant's foreign incarceration expires. State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).
The rights afforded a defendant in probation revocation proceedings do not include a right to remain silent. State v. Burow, 223 Neb. 867, 394 N.W.2d 665 (1986).
In a hearing hereunder, a defendant must be allowed to confront and cross-examine adverse witnesses unless the trial court specifically finds good cause for not allowing confrontation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975).
3. Miscellaneous
Where a probationer allegedly committed a new felony—possession of methamphetamine—while already on probation for a felony, the allegation of a law violation was not a "substance abuse" violation for revocation of probation purposes and the State could therefore institute revocation proceedings without showing that the probationer had served at least 90 days of cumulative custodial sanctions during the current probation term. State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).
If a court is to revoke probation for a violation occurring within the probationary period, it is sufficient if procedure to that end was instituted within the probationary period or within a reasonable time thereafter. State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).
In evaluating the reasonableness of a delay in probation revocation proceedings, a court should consider such factors as the length of the delay, the reasons for the delay, and the prejudice to the defendant resulting from the delay. State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).
An order denying a defendant's motion to discharge under this section is not a final, appealable order. State v. Sklenar, 269 Neb. 98, 690 N.W.2d 631 (2005).
State's unexplained lack of diligence in serving warrant forfeits the State's right to revoke probation after the probationary term has ended. State v. Windels, 244 Neb. 30, 503 N.W.2d 834 (1993).
Where a probationer was tried, convicted, and sentenced in the county court, it is the county court, not the district court which served in its appellate capacity, that has jurisdiction to hear a motion to revoke probation. State v. Daniels, 224 Neb. 264, 397 N.W.2d 631 (1986).
A motion or information to revoke probation must be filed in the sentencing court followed by a prompt preliminary hearing before an independent officer. A judge, other than the sentencing judge, may conduct hearing on the merits and may base finding on unlawful conduct on evidence relating to another offense without regard to whether probationer has been convicted thereof. State v. Kartman, 192 Neb. 803, 224 N.W.2d 753 (1975).
An amendment to a probation order which was not made in conformance with this section is void. State v. Pawling, 9 Neb. App. 824, 621 N.W.2d 821 (2000).
Where errors in state probation revocation proceedings were not prejudicial to the probationer, he was not entitled to federal habeas corpus. Kartman v. Parratt, 397 F.Supp. 531 (D. Neb. 1975).
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.
Annotations
1. Revocation
2. Miscellaneous
1. Revocation
A court's authority to revoke a probationer and impose a term of imprisonment extends only to the single term of
post-release supervision that the probationer is serving, provided that the probationer has not otherwise been ordered
to serve multiple terms concurrently. State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).
Because a court has discretion under subsection (2) of this section to impose, upon revocation, any term of
imprisonment up to the remaining period of post-release supervision, an appellate court will not disturb that decision
absent an abuse of discretion. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).
The Legislature has not demonstrated within this section that jail credit should be given for time served prior to
revocation. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).
Time spent in jail prior to revocation is credited against a probationer's sentence of post-release supervision. State
v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).
When calculating the "remaining period of post-release supervision" under subsection (2) of this section, courts
must first identify the number of days the probationer was originally ordered to serve on post-release supervision.
The court calculates the "remaining period of post-release supervision" by subtracting the number of days actually
served from the number of days ordered to be served. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).
When determining the amount of time "remaining" on a period of post-release supervision, courts are not required
to turn a blind eye to a probationer's absconsion from supervision. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699
(2019).
When a court has revoked post-release supervision, the maximum term of imprisonment that can be imposed is
governed exclusively by this section and does not depend on the maximum sentence of initial imprisonment
authorized by the relevant statute. State v. Wal, 302 Neb. 308, 923 N.W.2d 367 (2019).
This section permits a court, upon determining that a probationer has violated a condition of probation, to revoke the probation and impose on the offender such new sentence as might have been imposed originally for the crime of which he was convicted; violation of a single condition of probation is sufficient. State v. Finnegan, 232 Neb. 75, 439 N.W.2d 496 (1989).
Where the defendant violates a condition of his probation, the court may extend the terms of the probation, provided that the total length of probation does not exceed two years for a first offense misdemeanor or five years for a second offense misdemeanor or felony. State v. Ladehoff, 229 Neb. 111, 425 N.W.2d 352 (1988).
In order to revoke probation for nonpayment of restitution, the evidence must clearly and convincingly show that the probationer has willfully refused to make restitution when he or she has the resources to pay or has failed to make sufficient bona fide efforts to find employment and otherwise legally acquire the resources to pay restitution. State v. Heaton, 225 Neb. 702, 407 N.W.2d 780 (1987).
The violation of probation is not itself a crime, but merely a mechanism which may trigger the revocation of a previously granted probation. Once a court determines that a condition of probation has been violated and that the probation should be revoked, this section provides that the court is to impose a new sentence for the crime of which the defendant was originally convicted. State v. Painter, 223 Neb. 808, 394 N.W.2d 292 (1986).
Upon revocation of probation, the court may impose such punishment as may have been imposed originally for the crime of which such defendant was convicted. Defendant who was convicted of third offense driving while intoxicated in 1980 and who violated his probation in 1984 was subject to sentencing under the penal statute in effect at the time of his conviction. State v. Jacobson, 221 Neb. 639, 379 N.W.2d 772 (1986).
The court, under the language of this section, was free to require the defendant, after the revocation of probation, to serve the thirty days of jail time mandated by section 28-106 without regard to the forty-eight hours he had already served. State v. Schulz, 221 Neb. 473, 378 N.W.2d 165 (1985).
If the court finds that the probationer violated a condition of his probation, it may revoke the probation and impose such new sentence as might have been imposed originally for the crime of which he was convicted. State v. Osterman, 197 Neb. 727, 250 N.W.2d 654 (1977); State v. Williams, 194 Neb. 483, 233 N.W.2d 772 (1975).
2. Miscellaneous
Terms of post-release supervision may be served consecutively. When a consecutive sentence is imposed, the
second sentence begins only upon the termination of the prior term of imprisonment. A prisoner who receives
multiple consecutive sentences does not serve all sentences simultaneously, but serves only one sentence at a time.
State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020).
Once a district court finds a violation of post-release supervision, it must proceed under this section. State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).
Termination of post-release supervision as being unsatisfactory is not a revocation of post-release supervision and is not statutorily authorized. State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).
Violation of a single condition of probation established by clear and convincing evidence can support revocation. State v. Clark, 197 Neb. 42, 246 N.W.2d 657 (1976).
An amendment to a probation order which was not made in conformance with subsection (2)(c) of this section is void. State v. Pawling, 9 Neb. App. 824, 621 N.W.2d 821 (2000).
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.
Annotations
This section does not authorize the detention of a juvenile placed on probation by a juvenile court. In re Interest of Dakota M., 279 Neb. 802, 781 N.W.2d 612 (2010).
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.
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.
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.
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.
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.
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.
Annotations
Statute does not permit the requirement of community service in addition to a period of incarceration. State v. Burnett, 227 Neb. 351, 417 N.W.2d 355 (1988).
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.
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.
Annotations
1. Restrictions on restitution
2. Miscellaneous
1. Restrictions on restitution
A sentencing court's factfinding in determining restitution does not expose the defendant to any greater punishment than this section authorizes, which is for the full amount of the victim's damages. State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007).
Trial court erred in ordering defendant to pay restitution in the amount of total back child support owed rather than only the amount defendant was convicted of failing to pay. State v. Beck, 238 Neb. 449, 471 N.W.2d 128 (1991).
Defendant cannot be made to pay restitution if the record does not reflect that actual physical injury or property damage or loss was sustained by the victim as a direct result of the offense for which defendant has been convicted. State v. Brohimer, 238 Neb. 45, 468 N.W.2d 623 (1991).
An order to make restitution as a condition of probation is limited to the direct loss resulting from that offense of which a defendant has been convicted. State v. Escamilla, 237 Neb. 647, 467 N.W.2d 59 (1991).
Restitution is restricted to the loss sustained by the victim of the offense for which the defendant has been convicted. State v. Kelly, 235 Neb. 997, 458 N.W.2d 255 (1990).
A sentence may only include restitution to the victims of the crime for which the defendant has been charged and convicted. State v. Arvizo, 233 Neb. 327, 444 N.W.2d 921 (1989).
This section vests trial courts with the authority to order restitution for actual damages sustained by the victim of a crime for which a defendant is convicted. State v. Hosack, 12 Neb. App. 168, 668 N.W.2d 707 (2003).
Nebraska law does not authorize restitution in the form of a defendant's in-kind labor. State v. McMann, 4 Neb. App. 243, 541 N.W.2d 418 (1995).
2. Miscellaneous
It is plain error for a court to fail to specify in its written sentencing order whether the restitution is to be made
immediately, in specified installments, or within a specified period of time. State v. Street, 306 Neb. 380, 945
N.W.2d 450 (2020).
Before restitution can properly be ordered, the trial court must consider (1) whether restitution should be ordered,
(2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal
defendant is capable of paying. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
Restitution ordered by a court pursuant to this section is a criminal penalty imposed as a punishment for a crime
and is part of the criminal sentence imposed by the sentencing court. State v. McCulley, 305 Neb. 139, 939 N.W.2d
373 (2020)
When a court orders restitution to a crime victim under this section, restitution is a criminal penalty imposed as punishment and is part of the criminal sentence imposed by the sentencing court. State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007).
The requirements of this section are inapplicable in juvenile proceedings. In re Interest of Brandon M., 273 Neb. 47, 727 N.W.2d 230 (2007).
Restitution, ordered in an amount not exceeding the actual damage sustained by the victim, is not a penalty within the meaning of Neb. Const. art. VII, sec. 5, and is constitutional. State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
The provision in section 54-611 that allows the court to order disposition of an offending dog is similar to this section, which allows a court to order restitution to the victim of a crime. State v. Dittoe, 269 Neb. 317, 693 N.W.2d 261 (2005).
Restitution ordered by a court pursuant to this section is a criminal penalty imposed as punishment for a crime, not an administrative or civil penalty as is restitution under section 28-427. State v. Duran, 224 Neb. 774, 401 N.W.2d 482 (1987).
This section sets forth a state policy regarding the rights afforded to persons ordered to make restitution, and a municipality or other governmental unit cannot permissibly enact laws inconsistent therewith. State v. Salisbury, 7 Neb. App. 86, 579 N.W.2d 570 (1998).
The certainty and precision prescribed for the criminal sentencing process applies to criminal sentences containing restitution ordered pursuant to this section. State v. McGinnis, 2 Neb. App. 77, 507 N.W.2d 46 (1993).
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.
Annotations
1. Factors to consider
2. Miscellaneous
1. Factors to consider
The listed factors of this section are neither exhaustive nor mathematically applied, and the court's ultimate determination of whether restitution should be imposed is a matter of discretion. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
This section does not require setting forth factors to be considered in determining whether to order restitution and does not require a court to specifically articulate that it has considered factors or make explicit findings, disapproving State v. St. Cyr, 26 Neb. App. 61, 916 N.W.2d 753 (2018), and State v. Mick, 19 Neb. App. 521, 808 N.W.2d 663 (2012). State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
Before restitution can be properly ordered, the trial court must consider (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying. An evidentiary hearing is required to support a restitution order under this section. Restitution shall be ordered after a hearing and should be based on evidence of both actual damages and the defendant's ability to pay. State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).
Before restitution can be properly ordered, the trial court must consider: (1) Whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying. The amount of actual damages and the amount of restitution a criminal defendant is capable of paying shall be based on sworn information which may be documentary in nature. For purposes of restitution, the court's consideration of "the defendant's earning ability, employment status, financial resources, and family or other legal obligations" is mandatory. The plain language of this section and the case law require appropriate sworn documentation in the record of both the actual damages sustained by the victim and the defendant's ability to pay restitution. State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).
Before restitution can be properly ordered, the trial court must consider (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying. State v. Hosack, 12 Neb. App. 168, 668 N.W.2d 707 (2003).
A victim's unsworn and uncorroborated statements in a presentence report fall short of the requirement that a victim's actual damages be supported by evidence in the record. State v. McGinnis, 2 Neb. App. 77, 507 N.W.2d 46 (1993).
2. Miscellaneous
Actual damages do not require an assessment of the damaged property's prior fair market value when it can be repaired to its former condition. State v. Street, 306 Neb. 380, 945 N.W.2d 450 (2020).
In imposing a sentence, the court must state the precise terms of the sentence. Such requirement of certainty and precision applies to criminal sentences containing restitution orders, and a court's restitution order must inform the defendant whether the restitution must be made immediately, in specified installments, or within a specified period of time, not to exceed 5 years, as required under this section. State v. Esch, 290 Neb. 88, 858 N.W.2d 219 (2015).
If the sentencing court decides that a hearing is necessary to determine the amount of restitution, that hearing must be held at the time of sentencing. State v. Campbell, 247 Neb. 517, 527 N.W.2d 868 (1995).
A sentencing court is not limited by the maximum criminal fine authorized for the offense in ordering a person to make restitution as a condition of probation. State v. Stueben, 240 Neb. 170, 481 N.W.2d 178 (1992).
Record lacked sufficient documentation to support victim's assertion of lost wages. State v. McLain, 238 Neb. 225, 469 N.W.2d 539 (1991).
Despite the existence of a plea agreement involving restitution, the trial court still must give meaningful consideration to the defendant's ability to pay the agreed-upon restitution. State v. Mick, 19 Neb. App. 521, 808 N.W.2d 663 (2012).
Trial court's failure to inform defendant whether restitution must be made immediately, in specified installments, or within a specified time not to exceed 5 years was plain error. State v. Mettenbrink, 3 Neb. App. 7, 520 N.W.2d 780 (1994).
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.
Annotations
Restitution will be upheld if calculated by use of reasonable methods; therefore, when the defendant does not
present contradictory evidence, the court does not err in relying on a victim's competent estimates of loss. State v.
Street, 306 Neb. 380, 945 N.W.2d 450 (2020).
The determination of whether return or repair is impossible, impractical, or inadequate is left to the sound
discretion of the sentencing court and is not necessarily bound by concepts of fair market value. State v. Street, 306
Neb. 380, 945 N.W.2d 450 (2020).
This section warrants restitution where the offense results in damage, destruction, or loss of property. State v.
McBride, 27 Neb. App. 219, 927 N.W.2d 842 (2019).
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.
Annotations
An insurance company which makes payments to a victim is included under the term "person" found in this section. State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).
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.
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.
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.
Cross References
Reparations, Nebraska Crime Victim's Reparations Act, see section 81-1841.
Victim's Compensation Fund, see section 81-1835.
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.
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.
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.
Cross References
Reparations, Nebraska Crime Victim's Reparations Act, see section 81-1841.
Victim's Compensation Fund, see section 81-1835.
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.
Cross References
Human immunodeficiency virus testing, consent not required, when, see section 71-531.
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.
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.
Cross References
Nebraska Probation Administration Act, see section 29-2269.
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.
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.
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
Bail, conditions, see section 29-901.
Annotations
When the execution of a sentence has been suspended under this section, and the defendant has been at liberty under bail, the bond may be continued without the consent of the surety during the period of the suspension. State v. Hurley, 201 Neb. 569, 270 N.W.2d 915 (1978).
The subject of review of judgments in criminal cases is covered by Chapter 29, article 23, Reissue Revised Statutes of Nebraska, 1943, and amendments thereto. State v. Berry, 192 Neb. 826, 224 N.W.2d 767 (1975).
Date of execution of death sentence is not an essential part of judgment. Iron Bear v. Jones, 149 Neb. 651, 32 N.W.2d 125 (1948); Iron Bear v. State, 149 Neb. 634, 32 N.W.2d 130 (1948).
Application for a writ of habeas corpus is proper procedure for the review of judgment where the petitioner is imprisoned without due process of law. Kuwitzsky v. O'Grady, 135 Neb. 466, 282 N.W. 396 (1938).
Error proceeding in a criminal case does not suspend the sentence within the legal meaning of the term, but does stay the execution of the sentence. State ex rel. Hunter v. Jurgensen, 135 Neb. 136, 280 N.W. 886 (1938).
Where defendant negligently failed to file transcript and petition in error in Supreme Court within time required after rendition of judgment, a motion to dismiss the petition in error must be sustained. Goodman v. State, 131 Neb. 662, 269 N.W. 383 (1936).
Petition in error must be filed in Supreme Court within one month after rendition of judgment. District court cannot set aside its own judgment during term and re-enter same judgment merely to confer jurisdiction on Supreme Court. Dimmel v. State, 128 Neb. 191, 258 N.W. 271 (1935).
Jurisdiction of matter of suspension of sentence rests with district court. Barker v. State, 75 Neb. 289, 103 N.W. 1134, 106 N.W. 450 (1905).
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
Right of review in criminal case has statutory limitation of one month. Cunningham v. State, 153 Neb. 912, 46 N.W.2d 636 (1951).
Supersedeas bond is not satisfied by surrender of body of defendant prior to issuance of execution and return thereof unsatisfied in whole or in part. State v. Swedland, 114 Neb. 280, 207 N.W. 29 (1926).
Factors to be considered in determining the reasonableness of a defendant's appeal bond following a misdemeanor conviction include the atrocity of the defendant's offenses, the probability of the defendant's appearance to serve his or her sentence following the conclusion of his or her appeal, the defendant's prior criminal history, and the nature of the other circumstances surrounding the case. State v. Kirby, 25 Neb. App. 10, 901 N.W.2d 704 (2017).
Reasonableness of the appeal bond amount is determined under the general discretion of the district court. State
v. Kirby, 25 Neb. App. 10, 901 N.W.2d 704 (2017).
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
This section controls the right to bail after conviction and its provisions are purely discretionary. State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (1982).
Court may in its discretion admit to bail upon showing of probable error which would call for reversal in all save exceptional cases mentioned in Constitution. Ford v. State, 42 Neb. 418, 60 N.W. 960 (1894).
Trial court has absolute discretion regarding appeal bonds. State v. Hernandez, 1 Neb. App. 830, 511 N.W.2d 535 (1993).
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.
Annotations
1. Method of review
2. Time
3. Record
4. Miscellaneous
1. Method of review
Lack of staleness of execution under a particular measure of days is not an essential prerequisite to appellate jurisdiction; under the current statutory scheme, the jurisdictional prerequisite of a filing fee is satisfied when the lower court grants in forma pauperis status after considering a timely filed application and accompanying affidavit that, unless good cause is shown in the record why the appellant could not sign the affidavit, was executed personally by the impoverished appellant. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
The relative staleness of the execution of a poverty affidavit does not change the mandate of subsection (4) of section 25-1912 that "no step other than the filing of such notice of appeal and the depositing of such docket fee shall be deemed jurisdictional." State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
The relative staleness of the execution of a poverty affidavit does not change the mandate of this section that "[i]f 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." State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
When notice of appeal is filed, jurisdiction is vested in Supreme Court and district court loses it in criminal case. State v. Moore, 186 Neb. 71, 180 N.W.2d 888 (1970).
Method of review of all criminal cases by the Supreme Court is upon writ of error. Krell v. Mantell, 157 Neb. 900, 62 N.W.2d 308 (1954).
Error proceedings are commenced in Supreme Court by filing of petition in error and transcript. Fisher v. State, 153 Neb. 226, 43 N.W.2d 600 (1950).
2. Time
The relevant date under this section is the date the defendant files the application to proceed in forma pauperis, not the date on which the court grants the application. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002); State v. Newcomer, 23 Neb. App. 761, 875 N.W.2d 914 (2016).
An appeal shall be deemed perfected, giving the court jurisdiction, when notice of appeal has been timely filed and the docket fee timely deposited. State v. Price, 198 Neb. 229, 252 N.W.2d 165 (1977).
Appeal was lodged by timely writing judge setting out intent to appeal, indigency, and request for counsel. State v. Moore, 187 Neb. 507, 192 N.W.2d 157 (1971).
Supreme Court acquires no jurisdiction of a criminal appeal unless notice of appeal is filed within one month. State v. Wycoff, 183 Neb. 373, 160 N.W.2d 221 (1968).
Improper to apply time limitations for appeal where indigency and desire to appeal manifest and defendant, without services of trial counsel, failed to specifically request appointment of appellate counsel. State v. Williams, 181 Neb. 692, 150 N.W.2d 260 (1967).
Under former law Supreme Court had jurisdiction in criminal case on timely filing of petition in error, transcript, and poverty affidavit. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).
The 1949 amendment to this section did not operate to remove the limitation of one month in which to institute error proceedings in criminal cases. Cunningham v. State, 153 Neb. 912, 46 N.W.2d 636 (1951).
Where defendant negligently fails to file transcript and petition in error within time prescribed after rendition of judgment, Supreme Court had no jurisdiction. Goodman v. State, 131 Neb. 662, 269 N.W. 383 (1936).
Under former statute, proceedings in error had to be instituted within six months after judgment. Kock v. State, 73 Neb. 354, 102 N.W. 768 (1905).
Only after final judgment may writ of error be allowed. Green v. State, 10 Neb. 102, 4 N.W. 422 (1880).
3. Record
On review of conviction, motion for new trial not preserved and authenticated as part of transcript on appeal cannot be considered; evidence not contained in bill of exceptions as settled by trial judge, although physically appended thereto, will not be considered. Lee v. State, 124 Neb. 165, 245 N.W. 445 (1932).
This section regulates the administration of relief in error proceedings where errors have been preserved in record and are properly presented. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Where evidence, in criminal case, tried in county court, is certified to district court in form of bill of exceptions, which is used therein to maintain petition in error, filed in that court, Supreme Court, on appeal from district court, will examine entire proceeding and affirm or reverse. Cooper v. State, 97 Neb. 461, 150 N.W. 207 (1914).
Affidavits used on trial of issue of fact do not become part of record by being certified to Supreme Court by clerk of district court. Hoy v. State, 69 Neb. 516, 96 N.W. 228 (1903).
Unauthenticated statement by trial judge, found in transcript, of what transpired during proceedings, is stricken out as it is not made part of the record. Bush v. State, 47 Neb. 642, 66 N.W. 638 (1896).
4. Miscellaneous
The order granting an application to proceed in forma pauperis is not a final, appealable order because it does not
affect a substantial right. State v. Fredrickson, 306 Neb. 81, 943 N.W.2d 701 (2020).
The poverty affidavit in a criminal appeal must follow the language of this section, stating that defendant is unable by reason of poverty to pay the costs. An affidavit which states only that defendant is unable to pay the costs of retaining counsel is insufficient and does not vest jurisdiction with the appellate court. State v. Schmailzl, 248 Neb. 314, 534 N.W.2d 743 (1995).
Where a defendant invoked remedy by appeal, he could not at the same time carry on proceeding under the Post Conviction Act. State v. Carr, 181 Neb. 251, 147 N.W.2d 619 (1967).
Mere filing of affidavit of inability to pay filing fee is not conclusive but may be contested. State v. Eberhardt, 179 Neb. 843, 140 N.W.2d 802 (1966).
In a criminal case, payment of docket fee or in lieu thereof filing of affidavit of poverty is a jurisdictional step. State v. Goff, 174 Neb. 217, 117 N.W.2d 319 (1962).
Confinement in penitentiary under void or erroneous sentence, during pendency of proceedings in error, is not partial execution of legal sentence. McCormick v. State, 71 Neb. 505, 99 N.W. 237 (1904).
For criminal appeals, in order to be effective for content, a poverty affidavit is valid if it satisfies one requirement: The affiant must state that he or she is unable by reason of poverty to pay the costs of the appeal. State v. Barnett, 1 Neb. App. 708, 511 N.W.2d 150 (1993).
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
1. Scope
2. Reduction of sentence
3. Harmless error
4. Substantial miscarriage of justice
1. Scope
For a defendant who has been sentenced consecutively for two or more crimes, an appellate court generally considers the aggregate sentence to determine if it is excessive. State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).
It is inappropriate in determining whether a sentence is excessive to opine that the facts better fit a crime the defendant was not convicted of, which would have had a lesser sentence. State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).
So long as the facts provide a sufficient basis to find all elements beyond a reasonable doubt for the crimes the defendant is convicted of, whether an alternative crime fits those facts "best" is a matter of prosecutorial discretion and not a reason to question the trial court's sentence on the crimes found to have been committed. State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).
An appellate court will not disturb a sentence imposed within statutory limits unless the sentence was an abuse of discretion. State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
Whether an assigned error is prejudicial, requiring reversal, is at issue in every appeal. State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).
When determining whether to impose probation, the trial court must consider the factors set forth in section 29-2260. On appeal, an appellate court must likewise consider section 29-2260 in determining whether probation may be imposed, whether reviewing a sentence for excessiveness pursuant to this section or for leniency under section 29-2322. State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).
In a nondeath sentence an appellate court will not conduct a de novo review to determine whether a sentence is proportionate and thus appropriate; rather, a sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. State v. Philipps, 242 Neb. 894, 496 N.W.2d 874 (1993).
It is the duty of an appellate court to disturb a sentence on appeal which was within the statutory limits only if the sentence imposed was an abuse of judicial discretion. "Judicial abuse of discretion" means that the reasons or rulings of the trial judge are clearly untenable and deny a just result to the defendant. State v. Riley, 242 Neb. 887, 497 N.W.2d 23 (1993).
When a sentence imposed by a court is within statutory limits, an appellate court will not disturb the sentence unless there has been an abuse of discretion. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).
In considering whether or not to reduce a sentence on the grounds of alleged excessiveness, a sentencing judge is required to have only an open mind, not an empty one. State v. Christensen, 213 Neb. 820, 331 N.W.2d 793 (1983).
Sentence of eighteen months for attempted robbery affirmed; absent an abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982).
Effective sentence of one to two years imprisonment for conviction of manslaughter not excessive. State v. Rice, 198 Neb. 758, 255 N.W.2d 282 (1977).
In absence of abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal. State v. Gillham, 196 Neb. 563, 244 N.W.2d 177 (1976).
Were the sentencing herein made concurrent with defendant's present sentence, it would be tantamount to defendant receiving no sentence at all and the court's refusal to do so was not an abuse of discretion. State v. Erving, 193 Neb. 667, 228 N.W.2d 619 (1975).
This section is not a directive to reduce a sentence whenever asked, but only where the trial court has abused its judicial discretion and fixed a penalty which is clearly excessive. State v. Orner, 192 Neb. 523, 222 N.W.2d 819 (1974).
Where record fails to show factors claimed to require modification of sentence, it will not be modified. State v. Cano, 191 Neb. 709, 217 N.W.2d 480 (1974).
The Supreme Court may reduce a sentence which in its opinion is excessive and it is then its duty to render such sentence as the evidence warrants. State v. West, 188 Neb. 579, 198 N.W.2d 204 (1972).
When in the opinion of the Supreme Court, a sentence is excessive or not warranted by the evidence, this section contemplates correction on appeal. State v. Etchison, 188 Neb. 134, 195 N.W.2d 498 (1972).
A technique for deterrence of crime is scaling of penal sanctions. State v. Keck, 187 Neb. 794, 194 N.W.2d 186 (1972).
Unless an abuse of discretion appears, sentence within statutory limits will not be disturbed. State v. Morosin, 187 Neb. 521, 192 N.W.2d 165 (1971).
Supreme Court may substitute lower sentence. State v. Leadinghorse, 187 Neb. 386, 191 N.W.2d 440 (1971).
The penalty under an amendatory statute enacted before the actual trial, but after commission of the prohibited act, may be applied under this section where the sentence had not become final because an appeal was pending. State v. Goham, 187 Neb. 34, 187 N.W.2d 305 (1971).
Supreme Court may reduce sentence when in its opinion the sentence is excessive. State v. Dixon, 186 Neb. 143, 181 N.W.2d 250 (1970); Havlicek v. State, 101 Neb. 782, 165 N.W. 251 (1917).
Crime committed was so brutal that maximum penalty was required. State v. Escamilla, 182 Neb. 466, 155 N.W.2d 344 (1968).
In absence of bill of exceptions, sentence within statutory limits will not be disturbed. Guedea v. State, 162 Neb. 680, 77 N.W.2d 166 (1956).
Sentence imposed within statutory limits will not be disturbed in absence of abuse of discretion. Salyers v. State, 159 Neb. 235, 66 N.W.2d 576 (1954); Onstott v. State, 156 Neb. 55, 54 N.W.2d 380 (1952); Young v. State, 155 Neb. 261, 51 N.W.2d 326 (1952).
In absence of proper showing of abuse of discretion, Supreme Court will not reduce sentence. Taylor v. State, 159 Neb. 210, 66 N.W.2d 514 (1954).
This section is not effective to sustain a conviction where province of jury is prejudicially invaded. Schluter v. State, 151 Neb. 284, 37 N.W.2d 396 (1949).
Where an instruction has the effect of infringing upon the right of the jury to judge of the credibility of the witnesses, it is prejudicially erroneous. Wilson v. State, 150 Neb. 436, 34 N.W.2d 880 (1948).
Supreme Court cannot substitute itself for jury in determining whether essential elements of offense have been established beyond a reasonable doubt where instruction omits one of such elements. Whitehead v. State, 147 Neb. 797, 25 N.W.2d 45 (1946).
An instruction that omits an essential element of offense charged cannot be deemed to come within purview of this section. Hans v. State, 147 Neb. 730, 25 N.W.2d 35 (1946).
In prosecution for murder, this section was applied to rulings on admission of evidence, and the giving and refusing of instructions. Bassinger v. State, 142 Neb. 93, 5 N.W.2d 222 (1942).
This section does not prevent reversal of a conviction if the defendant did not have a fair trial because of questionable rulings upon the admission or rejection of evidence. Hansen v. State, 141 Neb. 278, 3 N.W.2d 441 (1942).
Section applied to conviction for embezzlement. Escher v. State, 140 Neb. 633, 1 N.W.2d 322 (1941).
Court was not empowered to reduce sentence on proceedings in error to review denial of motion to withdraw plea of guilty. Bordeau v. State, 125 Neb. 133, 249 N.W. 291 (1933).
Where errors are prejudicial, statute is not applicable. Fetty v. State, 119 Neb. 619, 230 N.W. 440 (1930).
Section has no application where province of jury is prejudicially invaded. Kleinschmidt v. State, 116 Neb. 577, 218 N.W. 384 (1928).
Supreme Court will not often reduce sentence imposed by trial court, particularly where crime involves great moral turpitude and is one of violence. Peterson v. State, 115 Neb. 302, 212 N.W. 610 (1927).
Section does not obviate necessity of alleging in information every material element of alleged offense. Barton v. State, 111 Neb. 673, 197 N.W. 423 (1924).
Section should be liberally construed in favor of justice. Cryderman v. State, 101 Neb. 85, 161 N.W. 1045 (1917).
It is duty of court under this section to reduce sentence when warranted by evidence; this is in no sense a commutation or an act of clemency. Anderson v. State, 26 Neb. 387, 41 N.W. 951 (1889).
2. Reduction of sentence
The Nebraska Supreme Court has the duty to render a reduced sentence against an accused when, in the opinion of the court, it is warranted. State v. McArthur, 230 Neb. 653, 432 N.W.2d 839 (1988).
Where a sentence to a term of years and an order to pay a fine are in excess of the statutory limits, the sentence and order are to be modified to fit within the prescribed limits. State v. Haverkamp, 224 Neb. 73, 395 N.W.2d 570 (1986).
Where defendant had no other significant criminal record, his prison behavior was exemplary, and facts indicated extended incarceration was not needed to rehabilitate the defendant, the Supreme Court may properly modify the sentence imposed by the district court. State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (1978).
Sentence of five to ten years reduced to two to five years for eighteen-year-old with no criminal record who pleaded guilty on a charge of uttering a forged instrument. State v. Moore, 198 Neb. 317, 252 N.W.2d 617 (1977).
This section authorizes reduction of sentence by Supreme Court in capital offenses in addition to provisions of sections 29-2519 to 29-2523. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
A sentence of three to nine years for kicking a four-year-old child was excessive under the facts in this case and was reduced to one to three years. State v. Foutch, 196 Neb. 644, 244 N.W.2d 291 (1976).
The Supreme Court is authorized to reduce a sentence and it may render such sentence as in its opinion may be warranted by the evidence. State v. Burkhardt, 194 Neb. 265, 231 N.W.2d 354 (1975).
Sentences of one defendant modified to fit apparent purpose of making total less harsh than that of other defendant. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).
Upon consideration of presentence report and other circumstances, sentence of one year for escape consecutive to present term not excessive. State v. Maddox, 190 Neb. 361, 208 N.W.2d 274 (1973).
Defendant's sentence of seven years for assault with intent to commit rape was not excessive. State v. Stroh, 189 Neb. 637, 204 N.W.2d 156 (1973).
Sentence reduced to five years for first offense as defendant affected by immature thinking and social naivete, with cultural, educational, and pecuniary handicaps in adjusting to adult life, and who had been made trusty by sheriff during confinement in county jail. State v. Thunder Hawk, 188 Neb. 294, 196 N.W.2d 194 (1972).
Sentences imposed for petit larceny were not excessive. State v. Curry, 184 Neb. 682, 171 N.W.2d 163 (1969).
Cited in reducing sentence where Legislature had reduced penalty during pendency of appeal. State v. Brockman, 184 Neb. 435, 168 N.W.2d 367 (1969).
No abuse of discretion shown where sentence of ten years imposed when statutory range was from three to fifty years. State v. Williams, 183 Neb. 395, 160 N.W.2d 201 (1968).
Evidence was insufficient to reduce sentence of trial court. State v. Alvarez, 182 Neb. 358, 154 N.W.2d 746 (1967).
Supreme Court has the right to reduce a sentence when in its opinion the sentence is excessive. State v. Paul, 177 Neb. 668, 131 N.W.2d 129 (1964).
In absence of bill of exceptions, a sentence imposed within statutory limits will not be reduced. State v. Ohler, 177 Neb. 418, 129 N.W.2d 116 (1964).
Mental condition of defendant convicted of murder in the first degree justified Supreme Court in reducing sentence to life imprisonment. State v. Hall, 176 Neb. 295, 125 N.W.2d 918 (1964).
Supreme Court is authorized to reduce sentence when in its opinion the sentence is excessive. State v. Neuman, 175 Neb. 832, 125 N.W.2d 5 (1963).
Imposition of jail sentence under Brand Inspection Act was excessive and sentence reduced to payment of fine. Satterfield v. State, 172 Neb. 275, 109 N.W.2d 415 (1961).
Sentence imposed of from one to two years in State Reformatory upon conviction of motor vehicle homicide was not excessive. Olney v. State, 169 Neb. 717, 100 N.W.2d 838 (1960).
Reduction in sentence from death to life imprisonment was not justified on claimed weakness of evidence as to deliberation and premeditation. Starkweather v. State, 167 Neb. 477, 93 N.W.2d 619 (1958).
Sentence of seven years for statutory rape was not excessive. Drewes v. State, 156 Neb. 319, 56 N.W.2d 113 (1952).
Supreme Court has authority to reduce and render such sentence as is warranted by evidence. Sundahl v. State, 154 Neb. 550, 48 N.W.2d 689 (1951).
Seven year sentence on conviction of manslaughter was excessive. Fisher v. State, 154 Neb. 166, 47 N.W.2d 349 (1951).
Sentence of six years upon conviction of statutory rape was not excessive. Truman v. State, 153 Neb. 247, 44 N.W.2d 317 (1950).
Sentence of three years for malicious destruction of property was not excessive. Pauli v. State, 151 Neb. 385, 37 N.W.2d 717 (1949).
Sentence of five years for manslaughter was not excessive. Anderson v. State, 150 Neb. 116, 33 N.W.2d 362 (1948).
Sentence of seven years on charge of larceny as bailee was not excessive. Yost v. State, 149 Neb. 584, 31 N.W.2d 538 (1948).
Sentence of five years for burglary was not excessive. Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946).
Notwithstanding previous criminal record of accused, sentence to imprisonment for sixteen years was reduced to ten years. Jump v. State, 146 Neb. 501, 20 N.W.2d 375 (1945).
Age of defendant warranted reduction in sentence in rape case. Wiedeman v. State, 141 Neb. 579, 4 N.W.2d 566 (1942).
Age of defendant, station in life, and previous reputation as a peaceful citizen are factors to be taken into consideration in determining whether sentence of death should be reduced to life imprisonment. Rogers v. State, 141 Neb. 6, 2 N.W.2d 529 (1942).
Fifteen year sentence for rape was excessive under the circumstances and reduced to seven years. Haynes v. State, 137 Neb. 69, 288 N.W. 382 (1939).
Where defendant was convicted of larceny of property valued at fifty-five dollars, sentence was reduced from five years to three years. Greenough v. State, 136 Neb. 20, 284 N.W. 740 (1939).
Where, under the circumstances, the sentence of the trial court is excessive, it will be modified on appeal. Haines v. State, 135 Neb. 433, 281 N.W. 860 (1938).
Sentence of thirty days imprisonment in county jail for assault was excessive, and reduced to fine of $25. Schleif v. State, 131 Neb. 875, 270 N.W. 510 (1936).
Fine of $500 for selling two bottles of beer without license was excessive, and reduced. Wilson v. State, 130 Neb. 752, 266 N.W. 614 (1936).
Sentence on charge of unlawful possession of intoxicating liquor reduced. Fast v. State, 128 Neb. 782, 261 N.W. 176 (1935).
Sentence on burglary charge reduced. Bulwan v. State, 127 Neb. 436, 255 N.W. 559 (1934); Barnes v. State, 124 Neb. 826, 248 N.W. 381 (1933).
Sentence of ten years on conviction of "shooting with intent to kill," was excessive and reduced to five years because of extenuating circumstances. Lillard v. State, 123 Neb. 838, 244 N.W. 640 (1932).
Sentence on charge of receiving stolen property reduced from three to one year. Smith v. State, 123 Neb. 17, 241 N.W. 750 (1932).
In prosecution for shooting with intent to kill, sentence reduced from seven years to three years. Swartz v. State, 121 Neb. 696, 238 N.W. 312 (1931).
One year in penitentiary for burglary reduced to five months in county jail. Haney v. State, 119 Neb. 862, 228 N.W. 939 (1930).
Sentence of ten years for manslaughter by stabbing was reduced to five. Pembrook v. State, 119 Neb. 417, 229 N.W. 271 (1930).
Death penalty for murder reduced to life imprisonment. Swartz v. State, 118 Neb. 591, 225 N.W. 766 (1929); Wesley v. State, 112 Neb. 360, 199 N.W. 719 (1924); Muzik v. State, 99 Neb. 496, 156 N.W. 1056 (1916); Hamblin v. State, 81 Neb. 148, 115 N.W. 850 (1908); O'Hearn v. State, 79 Neb. 513, 113 N.W. 130 (1907).
Death penalty upheld. Sherman v. State, 118 Neb. 84, 223 N.W. 645 (1929); Carter v. State, 115 Neb. 320, 212 N.W. 614 (1927).
Sentence on charge of manslaughter reduced from ten years to five years. Banks v. State, 114 Neb. 33, 206 N.W. 18 (1925); Welter v. State, 114 Neb. 28, 206 N.W. 16 (1925).
On charge of manslaughter, sentence was reduced to three years. Howard v. State, 113 Neb. 67, 201 N.W. 968 (1925).
Sentence on charge of rape reduced to four years. Fox v. State, 106 Neb. 537, 184 N.W. 68 (1921).
Sentence of five years for larceny of forty dollars reduced. Junod v. State, 73 Neb. 208, 102 N.W. 462 (1905).
Sentence of seven years on charge of manslaughter reduced to three years. Ford v. State, 71 Neb. 246, 98 N.W. 807 (1904).
Sentence of seven years for cattle stealing reduced. Palmer v. State, 70 Neb. 136, 97 N.W. 235 (1903).
Life sentence for second degree murder, on indirect and circumstantial evidence, reduced to twenty years. Nelson v. State, 33 Neb. 528, 50 N.W. 679 (1891).
Sentence of ten years for burglary reduced. Charles v. State, 27 Neb. 881, 44 N.W. 39 (1889).
On charge of rape, sentence of twelve years was reduced to six years. Fager v. State, 22 Neb. 332, 35 N.W. 195 (1887).
3. Harmless error
Harmless error analysis undertaken by an appellate court does not violate a defendant's right to a trial by jury. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
Prosecutor's comments in final argument held not to be a reflection on defendant's failure to testify. State v. Donald, 199 Neb. 70, 256 N.W.2d 107 (1977).
Since defendant did appeal and had a trial de novo in the district court, the improper attempt by the county judge to chill his right to appeal was harmless error. State v. Goodloe, 196 Neb. 381, 243 N.W.2d 69 (1976).
Admission of irrelevant evidence is harmless error unless, when with other evidence properly adduced, it affects substantial rights of the adverse party. State v. Rathburn, 195 Neb. 485, 239 N.W.2d 253 (1976).
No substantial miscarriage of justice occurred under facts in this case by overruling motion for mistrial. State v. Van Ackeren, 194 Neb. 650, 235 N.W.2d 210 (1975).
No substantial miscarriage of justice occurred, under facts in this case, by erroneous admission of evidence of similar acts. State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975).
Even if asking of two questions to which objections were sustained was error, no prejudice was indicated and judgment should not be set aside. State v. Bartlett, 194 Neb. 502, 233 N.W.2d 904 (1975).
An erroneous instruction in a criminal case is not ground for reversal unless prejudicial to the defendant. State v. Garza, 193 Neb. 283, 226 N.W.2d 768 (1975).
Fact that another jury selected from the same jury panel had previously found defendant's companion guilty of the separate and distinct offense did not constitute prejudice to a substantial right of defendant. State v. Harris, 184 Neb. 301, 167 N.W.2d 386 (1969).
Valuations placed on property taken in burglary did not prejudice the defendant. State v. Bundy, 181 Neb. 160, 147 N.W.2d 500 (1966).
Harmless error in a criminal prosecution is not a ground for reversal of judgment of conviction. State v. Burton, 174 Neb. 457, 118 N.W.2d 502 (1962).
Error in requiring defendant to answer question as to another offense was not prejudicial. Texter v. State, 170 Neb. 426, 102 N.W.2d 655 (1960).
Proof of betting by a prospective juror was not prejudicial to defendant where verdict returned by jury was contrary to juror's bet. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959).
Statement on existing constitutional or statutory provisions as to pardons and paroles was not prejudicial error. Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632 (1955).
Admission of hearsay evidence was harmless error. Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955).
Misdirection, not causing substantial miscarriage of justice, does not require reversal. Bell v. State, 159 Neb. 474, 67 N.W.2d 762 (1954).
Prejudicial error in prosecution for second degree murder was not shown. Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953).
Instruction on reasonable doubt was not prejudicial. Owens v. State, 152 Neb. 841, 43 N.W.2d 168 (1950).
Where charge to jury, considered as a whole, correctly states the law, the verdict will not be set aside merely because a single instruction is incomplete. Kirkendall v. State, 152 Neb. 691, 42 N.W.2d 374 (1950).
In prosecution for abortion resulting in death, the admission in evidence of a dying declaration reduced to writing was not prejudicial error requiring reversal, where written statement added nothing to story recited by witnesses examined at trial. Piercy v. State, 138 Neb. 905, 297 N.W. 137 (1941).
Recommendation of leniency by jury does not make sentence imposed by trial court excessive so as to require application of this statute, since penalty is for trial court and not the jury to determine. Ayres v. State, 138 Neb. 604, 294 N.W. 392 (1940).
Harmless error does not require a second trial, as the law recognizes the possibility of harmless imperfections and does not defeat itself by exacting absolute perfection. Jurgensen v. State, 135 Neb. 537, 283 N.W. 228 (1939).
Unless error complained of was prejudicial to rights of defendant, the cause should not be reversed. Mason v. State, 132 Neb. 7, 270 N.W. 661 (1937); Lovejoy v. State, 130 Neb. 154, 264 N.W. 417 (1936); Dobry v. State, 130 Neb. 51, 263 N.W. 681 (1935).
Variance between information and complaint filed in county court did not prejudice defendant. Clarke v. State, 125 Neb. 445, 250 N.W. 551 (1933).
Consolidation of two indictments is within discretion of trial court, especially where defendant consents or requests such consolidation. Luke v. State, 123 Neb. 101, 242 N.W. 265 (1932).
Instruction given in manslaughter case fell within class of instructions where conviction will not be reversed for nonprejudicial misdirection. Crawford v. State, 116 Neb. 125, 216 N.W. 294 (1927).
Defendant, released on bail, may waive right to be present when court gives supplemental instruction to jury, and where no prejudice results, conviction will not be set aside. Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925).
Any error occurring in the trial of a criminal case which does not cause a substantial miscarriage of justice should be disregarded. Marchand v. State, 113 Neb. 87, 201 N.W. 890 (1925).
Correction in instructions after same have been delivered and jury has retired is not ground for reversal, ordinarily, unless found to be prejudicial to person complaining. Quinton v. State, 112 Neb. 684, 200 N.W. 881 (1924).
Conviction of constructive contempt will not be set aside because information was verified on information and belief where objection was not made until after verdict. Tasich v. State, 111 Neb. 465, 196 N.W. 688 (1923).
Misconduct of prosecutor was not of such injurious nature as to justify reversal. Melcher v. State, 109 Neb. 865, 192 N.W. 502 (1923).
Where no error appears and sentence is warranted by statute, it will not be reduced because of apparent undue severity. Fanton v. State, 50 Neb. 351, 69 N.W. 953 (1897); Barney v. State, 49 Neb. 515, 68 N.W. 636 (1896).
4. Substantial miscarriage of justice
Presence, in view of jury, of evidence which had not yet been received into evidence, but was received later for limited purposes, did not constitute a "substantial miscarriage of justice," such that mistrial would be in order. State v. Valdez, 239 Neb. 453, 476 N.W.2d 814 (1991).
Examination of record showed no substantial prejudice to the defendant by trial court's exclusion of certain hearsay testimony. State v. Turner, 221 Neb. 852, 381 N.W.2d 149 (1986).
References to previous contradictory statements of witnesses in direct examination and caution in instruction that they went only to credibility caused no substantial miscarriage of justice. State v. Fronning, 186 Neb. 463, 183 N.W.2d 920 (1971).
Allowing testimony of witness as to value of property taken under circumstances did not constitute substantial miscarriage of justice. State v. Schumacher, 184 Neb. 653, 171 N.W.2d 181 (1969).
Admission of incriminating, inculpatory, and extra-judicial declarations of a co-conspirator after the arrest and after the termination of the conspiracy was prejudicial error. State v. Watson, 182 Neb. 692, 157 N.W.2d 156 (1968).
Examination of entire case and record conclusively shows no substantial miscarriage of justice. State v. Riley, 182 Neb. 300, 154 N.W.2d 741 (1967).
Error in instruction on credibility of child as witness was not cured. Rakes v. State, 158 Neb. 55, 62 N.W.2d 273 (1954).
Supreme Court has privilege within its discretion to examine instructions which appear to be conflicting or confusing, and to determine whether or not error in instructions would result in miscarriage of justice. Planck v. State, 151 Neb. 599, 38 N.W.2d 790 (1949).
Where one of essential elements of offense is omitted from instruction, this section will not prevent reversal. Glasgow v. State, 147 Neb. 279, 22 N.W.2d 842 (1946).
Where court allows proceedings in absence of defendant, it is substantial invasion of defendant's rights, and is prejudicial error. Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940).
In cattle stealing case, judgment was sustained because court could not say, after examination of entire record, that substantial miscarriage of justice had occurred. Taylor v. State, 138 Neb. 156, 292 N.W. 233 (1940).
The obvious failure of an information to charge an offense as defined in the statute is not a defect of technical procedure, but involves a substantial right. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).
If Supreme Court, in criminal case, after examination of entire cause, shall consider that no substantial miscarriage of justice shall have occurred, it must affirm the judgment. Harrison v. State, 133 Neb. 794, 277 N.W. 96 (1938).
Misdirection of jury not causing substantial miscarriage of justice does not require that a judgment be set aside. Lorimer v. State, 127 Neb. 758, 257 N.W. 217 (1934).
In contempt proceedings, conviction will not be set aside where no substantial miscarriage of justice has occurred. McCauley v. State, 124 Neb. 102, 245 N.W. 269 (1932).
In prosecution for defrauding bank, errors relied upon did not result in substantial miscarriage of justice. Kirchman v. State, 122 Neb. 624, 241 N.W. 100 (1932).
This section does not authorize court to declare there has been no substantial miscarriage of justice merely because the court from an examination of the evidence may believe the defendant is guilty. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Where no substantial miscarriage of justice occurs, conviction will be affirmed. Norton v. State, 119 Neb. 588, 230 N.W. 438 (1930).
Court will not ignore "error as to any matter of pleading or procedure" when the rights of the accused conferred by the Constitution have been violated. Stowe v. State, 117 Neb. 440, 220 N.W. 826 (1928).
Instructions in murder case, while not in apt language, did not result in substantial miscarriage of justice. Phegley v. State, 113 Neb. 138, 202 N.W. 419 (1925).
Instruction to jury in rape case on reasonable doubt did not cause substantial miscarriage of justice. Bennett v. State, 111 Neb. 552, 196 N.W. 905 (1924).
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.
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
1. Final order required
2. Procedure
3. Scope of error proceedings
4. Miscellaneous
1. Final order required
The State does not have the ability to appeal an order finding indigency and appointing counsel prior to the issuance of a final order. State v. Fredrickson, 305 Neb. 165, 939 N.W.2d 385 (2020).
By its language, this section clearly requires that an error proceeding cannot be brought until after a "final order" has been entered. The test of finality of an order or judgment for the purpose of appeal under this section is whether the particular proceeding or action was terminated by the order or judgment. State v. Warner, 290 Neb. 954, 863 N.W.2d 196 (2015).
A judgment entered during the pendency of a criminal cause is final when no further action is required to completely dispose of the cause pending. State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011).
The test of finality of an order or judgment for the purpose of appeal is whether the particular proceeding or action was terminated by the order or judgment. State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011).
An order to disqualify the county attorney's office was not a final, appealable order, and the exception in Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997), to the final order rule did not apply because the State's interest in prosecuting the defendant was protected by the appointment of a special counsel to prosecute the defendant on behalf of the State. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006).
The State's right to appeal in criminal cases is limited by this section, which provides that the State may appeal only after a final order has been filed in the case. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006).
This section does not permit an appeal by the State from any interlocutory ruling of the trial court in a criminal proceeding. State v. Coupens, 20 Neb. App. 485, 825 N.W.2d 808 (2013).
2. Procedure
An appeal in an exception proceeding will be dismissed when the government challenges only the trial court's application of settled law to a set of unique facts. State v. Valadez, 313 Neb. 902, 987 N.W.2d 268 (2023).
When exception proceedings follow from an order granting a plea in bar, none of the statutory events triggering the attachment of legal jeopardy occur, and further proceedings against the defendant are proper. State v. Lewis, 313 Neb. 879, 986 N.W.2d 739 (2023).
In the absence of specific statutory authorization, the State, as a general rule, has no right to appeal an adverse ruling in a criminal case. State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011).
This section grants the State the right to seek appellate review of adverse criminal rulings and specifies the special procedure by which to obtain such review. State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011); State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006); State v. Wieczorek, 252 Neb. 705, 565 N.W.2d 481 (1997); State v. Coupens, 20 Neb. App. 485, 825 N.W.2d 808 (2013).
A defendant cannot file a cross-appeal to an exception proceeding unless the general appeal provisions are complied with. State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
The State's right to seek a review is limited to the procedure set forth in this section. State v. Recek, 263 Neb. 644, 641 N.W.2d 391 (2002).
Failure to strictly comply with the jurisdictional prerequisites of this section prevents the State from obtaining any review of a trial court's final order in a criminal case. State v. Johnson, 259 Neb. 942, 613 N.W.2d 459 (2000).
The county attorney in a criminal proceeding must present to the trial court an application for leave to docket an appeal according to this section before seeking review under the general appeal statute, section 25-1912. State v. Baird, 238 Neb. 724, 472 N.W.2d 203 (1991).
The trial judge has no authority to decide whether an appeal under this section may be taken. State v. Wren, 234 Neb. 291, 450 N.W.2d 684 (1990).
County attorney's appeals involving criminal matters were dismissed where civil appeals improperly perfected. State v. Gillett & Gaston, 199 Neb. 829, 261 N.W.2d 763 (1978).
This section prevents the state from a cross-appeal on an order granting defendant a new trial in a criminal case. State v. Martinez, 198 Neb. 347, 252 N.W.2d 630 (1977).
The right of the county attorney to review questions of law hereunder is limited to cases in which a final order or judgment in the criminal case has been entered, and authority does not extend to city attorneys nor prosecutions under city ordinances. State v. Linn, 192 Neb. 798, 224 N.W.2d 539 (1974).
Proper practice would be to institute error proceedings only after sentence is imposed or motion for new trial is overruled, but since decision here will not affect defendant, and will govern only pending or future similar cases, motion to dismiss because prematurely filed is overruled. State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974).
Pendency of error proceedings under this section does not preclude appeal under section 29-3002. State v. Carpenter, 186 Neb. 605, 185 N.W.2d 663 (1971).
Review of order sustaining demurrer to information was properly brought by the state. State v. Buttner, 180 Neb. 529, 143 N.W.2d 907 (1966).
County attorney is required to apply for leave to docket proceedings within one month from date of final order. State v. Satterfield, 179 Neb. 451, 138 N.W.2d 656 (1965).
The Nebraska Supreme Court has consistently maintained that strict compliance with this section is required to confer jurisdiction. State v. Coupens, 20 Neb. App. 485, 825 N.W.2d 808 (2013).
This section must be read in pari material with section 25-1912 and mandates that when an appellate court grants the State leave to docket an appeal, the State must file a notice of appeal within 30 days in order to perfect jurisdiction in the appellate court. State v. Kissell, 13 Neb. App. 209, 690 N.W.2d 194 (2004).
In a criminal proceeding tried in the county court and appealed to the district court, "trial court" as used in this section is a synonym for "district court". A trial judge has no authority to decide whether an appeal under this section may be taken, and a district judge's refusal to sign an application for leave to docket the appeal does not deprive a higher court of jurisdiction. State v. Rubek, 7 Neb. App. 68, 578 N.W.2d 502 (1998).
3. Scope of error proceedings
The purpose of appellate review pursuant to this section is to provide an authoritative exposition of the law to serve as precedent in future cases. State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009).
This section allows the county attorney to request appellate review of an adverse decision or ruling in a criminal case in district court after a final order or judgment in the criminal case has been entered, but it does not allow an appellate court to review issues upon which no ruling was made. State v. Figeroa, 278 Neb 98, 767 N.W.2d 775 (2009).
The purpose of a prosecutorial appeal brought under this section is to provide an authoritative exposition of the law to serve as precedent in future cases. Thus, under this section, an appellate court determines whether authoritative exposition of the law is needed based upon the prosecuting attorney's application for leave to docket an appeal. And the scope of an appellate court's review under this section is limited to providing such an exposition. It is not the proper function of this section to have an appellate court render an advisory opinion on narrow factual issues regardless of whether the opinion may, or may not, have some marginal precedential value in the future. State v. Larkins, 276 Neb. 603, 755 N.W.2d 813 (2008).
Under this section, the State may request review of an adverse decision or ruling in a criminal case after a final order or judgment in the criminal case has been entered. The purpose of this procedure is to provide an authoritative exposition of the law to serve as precedent in future cases. State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999); State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996).
An order of the district court reversing a judgment of the county court in a criminal case, vacating the sentence, and remanding the cause for imposition of a sentence may be reviewed under this section. Pursuant to this section, "trial court" is merely a synonym for "district court." State v. Schall, 234 Neb. 101, 449 N.W.2d 225 (1989).
This statute does not permit review of issues upon which no ruling was made. State v. Jensen, 226 Neb. 40, 409 N.W.2d 319 (1987).
An order in a criminal case whereby the district court vacates a sentence and remands the cause for imposition of sentence in the county court is reviewable under this section. State v. Ziemba, 216 Neb. 612, 346 N.W.2d 208 (1984).
District court's ruling on motion to dismiss habitual criminal charge reviewed and reversed in error proceedings. State v. Nance, 197 Neb. 257, 248 N.W.2d 339 (1976).
Scope and purpose of review of proceedings hereunder is to provide authoritative exposition of the law as precedent in subsequent cases. State v. Jennings, 195 Neb. 434, 238 N.W.2d 477 (1976).
Error proceedings by the state may be had to review dismissal of prosecution for lack of sufficient evidence. State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967).
The right of the state to appeal is limited. State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965).
The purpose of appellate review under this section is to provide an authoritative exposition of the law for use as a precedent in similar cases which may now be pending or which may subsequently arise. State v. Rubek, 11 Neb. App. 489, 653 N.W.2d 861 (2002); State v. Wilen, 4 Neb. App. 132, 539 N.W.2d 650 (1995).
4. Miscellaneous
When a defendant challenges a sentence imposed by the district court as excessive and the State believes the sentence to be erroneous but has not complied with this section or section 29-2321, the State may not assert such error via a cross-appeal. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
In cases brought as error proceedings under this section, the good faith exception to the exclusionary rule applies to warrantless blood draws conducted prior to the U.S. Supreme Court's decision in Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).
In proceedings under this section, exceptions of state were sustained. State v. Ransburg, 181 Neb. 352, 148 N.W.2d 324 (1967).
Information attempting to charge disturbing the peace was tested under this section. State v. Coomes, 170 Neb. 298, 102 N.W.2d 454 (1960).
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.
Annotations
Appeal cannot be taken by state from interlocutory ruling of trial court in criminal proceeding. State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965).
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
1. Scope
2. Defendant in jeopardy
3. Miscellaneous
1. Scope
When exception proceedings follow from an order granting a plea in bar, jeopardy has not attached and remand is proper if the exception is sustained. State v. Lewis, 313 Neb. 879, 986 N.W.2d 739 (2023).
Where a criminal matter is brought to a higher appellate court by an exception proceeding from the district court sitting as an appellate court, the higher appellate court may reverse the district court's order, because this section does not limit the relief the higher appellate court can order. State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).
When an exception proceeding is before the Nebraska Supreme Court or Court of Appeals from the district court where the trial took place in district court, this section restricts the scope of any ruling directed at the defendant and district court. But where the district court is sitting as an appellate court, the defendant was not placed in jeopardy in that court and the limitations of this section do not apply to dispositions or orders directed at the district court. State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
The purpose of an appellate review is to provide an authoritative exposition of the law to serve as precedent in future cases. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Scope and purpose of review of proceedings hereunder is to provide authoritative exposition of the law as precedent in subsequent cases. State v. Jennings, 195 Neb. 434, 238 N.W.2d 477 (1976).
Scope and purpose of review are to secure authoritative expositions of law to be used as precedent in similar cases. State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965).
Upon reversal of order to quash complaint, further proceedings were authorized. State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962).
Function of Supreme Court is to determine law of the case. State v. Luttrell, 159 Neb. 641, 68 N.W.2d 332 (1955).
Judgment under this section cannot reverse or affect judgment of trial court, but is solely to obtain authoritative exposition of the law. State v. McDaniels, 145 Neb. 261, 16 N.W.2d 164 (1944).
Judgment hereunder does not in any manner affect judgment of district court, but merely determines law governing similar cases or those arising in future. State v. Kastle, 120 Neb. 758, 235 N.W. 458 (1931).
2. Defendant in jeopardy
Whether this section prevents an appellate court from reversing the judgment of the trial court turns on whether the trial court placed the defendant in jeopardy, not whether the Double Jeopardy Clause bars further action. State v. Kleckner, 291 Neb. 539, 867 N.W.2d 273 (2015).
Even though modifying a sentence on review does not violate constitutional principles of double jeopardy, because of the language of this section, a Nebraska appellate court does not have authority to modify a sentence in an error proceeding when the defendant has been "placed legally in jeopardy." State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).
The application of this section turns on whether the defendant has been placed in jeopardy by the trial court, not by whether the Double Jeopardy Clause bars further action. State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
Where defendant's motion for a new trial was overruled and he did not appeal, he has been placed in jeopardy and ruling in error proceedings could not affect him. State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974).
When defendant has been placed in jeopardy, error proceeding by state will not affect the judgment of the trial court. State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967).
3. Miscellaneous
Remanded for proceedings after district court's ruling on motion to dismiss habitual criminal charges reversed. State v. Nance, 197 Neb. 257, 248 N.W.2d 339 (1976).
Dismissal of complaint on appeal was erroneous, for which judgment was reversed. State v. Ruggiere, 180 Neb. 869, 146 N.W.2d 373 (1966).
Exceptions of state were sustained in case involving jurisdiction over the trial of a youth under eighteen years. State v. McCoy, 145 Neb. 750, 18 N.W.2d 101 (1945).
Exceptions of state were sustained in case involving question of trial without jury by magistrates and police courts of misdemeanors. State v. Kacin, 123 Neb. 64, 241 N.W. 785 (1932).
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.
Cross References
Appeals from county court, see section 25-2728.
Appeals from juvenile court, see section 43-2,106.01.
Annotations
1. Juvenile cases
2. Miscellaneous
1. Juvenile cases
The plain language of section 43-2,106.01(2)(d) carves out an exception for delinquency cases in which jeopardy has attached. In such cases, the county attorney is limited to taking exception pursuant to the procedures of this section and sections 29-2318 and 29-2319. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).
Under section 43-2,106.01(2)(d), when a county attorney files an appeal "in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy," the appeal must be taken by exception
proceedings to the district court pursuant to this section and sections 29-2318 and 29-2319. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).
Separate juvenile courts are treated as county courts under this section and sections 29-2318 and 29-2319 for the purpose of exception proceedings under subsection (2)(d) of section 43-2,106.01. In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006).
Reference to the county court in sections 29-2317 to 29-2319 also applies to the separate juvenile court. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012).
2. Miscellaneous
This section requires exception to a county court judgment to be taken to the district court sitting as an appellate court. Specifically, the prosecuting attorney is to file a notice of appeal in the county court,
then file the notice in the district court within 30 days. In re Interest
of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).
The district court lacked subject matter jurisdiction and thus properly dismissed the State's appeal of a criminal prosecution brought pursuant to this section, where, before filing notice of its intent to appeal to the district court, the State voluntarily dismissed the case in the county court. State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999).
Grant of right to prosecuting attorney to appeal a decision of municipal or county court does not repeal by implication the authority of the prosecuting attorney to refile in county court or to file directly in a district court. State v. Rubek, 220 Neb. 537, 371 N.W.2d 537 (1985).
This section provides no means of appeal for a defendant who has previously been placed in jeopardy since a proceeding under this section cannot subsequently affect that defendant's rights. State v. Sports Couriers, Inc., 210 Neb. 168, 313 N.W.2d 447 (1981).
Where a previously announced sentence has been subsequently modified, the prosecuting attorney may appeal. State v. McDermott, 200 Neb. 337, 263 N.W.2d 482 (1978).
Sections 29-2317 to 29-2319 outline exception proceedings which allow prosecuting attorneys to take exception to any ruling or decision of the county court by presenting to the court a notice of intent to take an appeal to the district court. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012).
The language of this section requires the appeal of a county court judgment to the district court sitting as an appellate court. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012).
Pursuant to subsection (2) of this section, to obtain review of a county court's decision in a criminal case, the State must present both the required notice of appeal and a copy of the ruling complained of to the county court. Failure to include a copy of the ruling or decision complained of is a jurisdictional defect. State v. Steinbach, 11 Neb. App. 468, 652 N.W.2d 632 (2002).
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.
Annotations
The plain language of section 43-2,106.01(2)(d) carves out an exception for delinquency cases in which jeopardy has attached. In such cases, the county attorney is limited to taking exception pursuant to the procedures of this section and sections 29-2317 and 29-2319. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).
Under section 43-2,106.01(2)(d), when a county attorney files an appeal "in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy," the appeal must be taken by exception proceedings to the district court pursuant to this section and sections 29-2317 and 29-2319. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).
Separate juvenile courts are treated as county courts under this section and sections 29-2317 and 29-2319 for the purpose of exception proceedings under subsection (2)(d) of section 43-2,106.01. In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006).
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.
Annotations
The plain language of section 43-2,106.01(2)(d) carves out an exception for delinquency cases in which jeopardy has attached. In such cases, the county attorney is limited to taking exception pursuant to the procedures of this section and sections 29-2317 and 29-2318. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).
Under section 43-2,106.01(2)(d), when a county attorney files an appeal "in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy," the appeal must be taken by exception
proceedings to the district court pursuant to this section and sections 29-2317 and 29-2318. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).
Separate juvenile courts are treated as county courts under this section and sections 29-2317 and 29-2318 for the purpose of exception proceedings under subsection (2)(d) of section 43-2,106.01. In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006).
There is no statutory authorization for a city attorney representing the State to appeal a decision of a district court which reverses the decision of a county court upon appeal by a criminal defendant. State v. Jones, 264 Neb. 812, 652 N.W.2d 288 (2002).
The protections afforded by this section are no greater than or different from the double jeopardy protections afforded by the U.S. and Nebraska Constitutions. State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000).
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.
Annotations
1. Applicability of section
2. Standard of review
3. Waiver
4. Miscellaneous
1. Applicability of section
A sentence that falls below the sentencing limits prescribed by law may be appealed by the State as excessively lenient. State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
Under this section, a prosecuting attorney may appeal sentences imposed in felony cases when he or she reasonably believes the sentence is excessively lenient. Under this section, an appellate court lacks the authority to review a sentence imposed for a misdemeanor conviction. State v. Stafford, 278 Neb. 109, 767 N.W.2d 507 (2009).
A sentence imposed in a revocation of probation proceeding is considered a sentence under this section and is subject to an appeal by the prosecutor challenging its leniency. State v. Caniglia, 272 Neb. 662, 724 N.W.2d 316 (2006).
This section does not provide the State with statutory authority to appeal the sentence of a defendant who has been acquitted of the death penalty and sentenced to life imprisonment. State v. Seberger, 257 Neb. 747, 601 N.W.2d 229 (1999).
2. Standard of review
When the State appeals and claims that a sentence imposed on a defendant is excessively lenient, the standard of review is whether the sentencing court abused its discretion in the sentence imposed. State v. Wojcik, 238 Neb. 863, 472 N.W.2d 732 (1991); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).
In State's appeal under this section on a claim that an imposed sentence is excessively lenient, the sentence imposed will be upheld unless the sentencing court abused its discretion concerning the questioned sentence. State v. Stastny, 227 Neb. 748, 419 N.W.2d 873 (1988).
When the State appeals and claims that a sentence imposed on a defendant is excessively lenient, the standard of review is whether the sentencing court abused its discretion in the sentence imposed. State v. Rittenhouse, 1 Neb. App. 633, 510 N.W.2d 336 (1993).
3. Waiver
The State, by agreeing to remain silent at a defendant's sentencing hearing as part of a plea bargain, does not waive its statutory right to appeal a sentence as excessively lenient. State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007).
Waiver of the right to appeal a sentence must be express and unambiguous. State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007).
4. Miscellaneous
The protections of the Double Jeopardy Clause of the U.S. Constitution prevent the State from challenging as excessively lenient a life sentence resulting from a first degree murder conviction under the capital sentencing procedure. State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995).
This section is not unconstitutional. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990).
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.
Annotations
When a defendant challenges a sentence imposed by the district court as excessive and the State believes the
sentence to be erroneous but has not complied with section 29-2315.01 or this section, the State may not assert such
error via a cross-appeal. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
While there is a temptation on a visceral level to conclude that anything less than incarceration depreciates the
seriousness of crimes involving sexual assault of a child, it is the function of the sentencing judge, in the first
instance, to evaluate the crime and the offender. State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).
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.
Annotations
1. Factors
2. Sentence found excessively lenient
3. Sentence not excessively lenient
1. Factors
When a judge has imposed sentences for several convictions at the same time, an appellate court generally considers the aggregate sentence in considering whether a sentence is excessively lenient. State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022).
When determining whether to impose probation, the trial court must consider the factors set forth in section 29-2260. On appeal, an appellate court must likewise consider section 29-2260 in determining whether probation may be imposed, whether reviewing a sentence for excessiveness pursuant to section 29-2308 or for leniency under this section. Pursuant to subsection (3)(c) of this section, although the seriousness of the crime may weigh in favor of the defendant, it does not, by itself, indicate that probation is inappropriate. State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).
Factors to be considered when the Supreme Court reviews an appeal by a prosecutor are set forth in this section. State v. Dobbins, 221 Neb. 778, 380 N.W.2d 640 (1986).
This section provides that an appellate court, upon a review of the record, shall determine whether a 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. State v. Hatt, 16 Neb. App. 397, 744 N.W.2d 493 (2008).
2. Sentence found excessively lenient
Sentence of probation for defendant who was convicted of first degree sexual assault of a child was excessively lenient. State v. Hoffman, 246 Neb. 265, 517 N.W.2d 618 (1994).
Following a review of standards set forth in this section, the Supreme Court found the sentence of 5 years' probation for an individual who was convicted of operating a motor vehicle while his license was suspended for life was excessively lenient and remanded the cause for resentencing to a term of imprisonment for 5 years. State v. Foral, 236 Neb. 597, 462 N.W.2d 626 (1990).
A sentence of probation for an individual who was convicted of possession of a deadly combination of illegal drugs with intent to deliver, who has a history of violating probation and disregarding the law, and who continues to deny his guilt is excessively lenient. State v. Winsley, 223 Neb. 788, 393 N.W.2d 723 (1986).
Based upon consideration of the facts in this case as they relate to the statutory factors to consider pursuant to this section, the sentence imposed upon the defendant by the sentencing court was excessively lenient. State v. Silva, 7 Neb. App. 480, 584 N.W.2d 665 (1998).
Concurrent 5-year terms of probation with 180 days in county jail plus restitution were excessively lenient sentences for defendant convicted of issuing a bad check and two counts of forgery, where defendant had numerous prior felony convictions. State v. Cotton, 2 Neb. App. 901, 519 N.W.2d 1 (1994).
A sentence of 60 days in county jail for one convicted of two counts of felony forgery, where defendant had an extensive criminal record and had failed to take further actions to cure her drug addiction, was excessively lenient. State v. Ummel, 1 Neb. App. 541, 500 N.W.2d 191 (1993).
3. Sentence not excessively lenient
A sentence of probation is not excessively lenient, even though the crimes were serious with an egregious set of facts, where the offender was convicted of a Class II felony for which the law prescribed no mandatory minimum sentence, the presentence investigation report showed he is at low risk to reoffend, and the psychological evaluation recognized he was around 14 years of age at the time of the offenses and has not subsequently engaged in any other known or reported forms of sexual misconduct. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
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.
Annotations
The Supreme Court has sentencing alternatives upon appeal of a sentence by a prosecutor. State v. Dobbins, 221 Neb. 778, 380 N.W.2d 640 (1986).
In a driving under the influence case, the appellate court found the sentence imposed by the trial court to be excessive, and, under this section, vacated the sentence and remanded the cause to the trial court for imposition of a greater sentence. State v. Hatt, 16 Neb. App. 397, 744 N.W.2d 493 (2008).
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.
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.
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.
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.
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
Absent any contrary evidence, it is presumed, in proceedings under the habitual criminal act, that confinement directions of the statutes were followed. State v. Addison, 197 Neb. 482, 249 N.W.2d 746 (1977).
When after conviction and sentence, defendant who is out on bond exhausts appeal procedures and files motion for post conviction relief without setting up grounds therefor, the district court should direct execution of sentence. State v. Carpenter, 186 Neb. 605, 185 N.W.2d 663 (1971).
In the absence of proof to the contrary, it will be presumed, in proceedings under the habitual criminal law, that commitment was properly carried out by officers. Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).
Penitentiary sentence for less than minimum term prescribed by statute is not void; trial court, after sentence for less than minimum term has been served, was without jurisdiction to vacate it and impose greater penalty. Hickman v. Fenton, 120 Neb. 66, 231 N.W. 510, 70 A.L.R. 819 (1930).
Confinement in penitentiary under void sentence because of failure of accused to procure suspension during pendency of error proceedings is not a part of execution of subsequent legal sentence. McCormick v. State, 71 Neb. 505, 99 N.W. 237 (1904).
Term of imprisonment dates from sentence, not from delivery to warden. In re Fuller, 34 Neb. 581, 52 N.W. 577 (1892).
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
Sentence does not begin to run until defendant is taken into custody or offers to surrender himself to the custody of proper officer. Riggs v. Sutton, 113 Neb. 556, 203 N.W. 999 (1925).
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
Where defendant was sentenced to pay fine and gave supersedeas bond, he cannot be committed except for want of goods and chattels out of which to meet demands of execution. State v. Swedland, 114 Neb. 280, 207 N.W. 29 (1926).
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
Exemptions in civil cases, see section 25-1552 et seq.
Annotations
Where convict is sentenced to penitentiary for more than two years, he has same exemptions as provided by law in civil cases. Canada v. State, 148 Neb. 115, 26 N.W.2d 509 (1947).
Judgment for fine and costs, where sentence is less than two years in the penitentiary, is lien on homestead of convict. Mancuso v. State, 123 Neb. 204, 242 N.W. 430 (1932).
Lien attaches to real estate owned in county at time of docketing cause, and statute of limitations runs against assignee of such judgment from date of assignment. Predohl v. O'Sullivan, 59 Neb. 311, 80 N.W. 903 (1899).
Although a judgment for costs in a criminal case is a lien upon a defendant's property, Nebraska statutes do not specifically authorize a setoff of costs owed to the court against proceeds of the defendant's bond. State v. Zamarron, 19 Neb. App. 349, 806 N.W.2d 128 (2011).
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
Execution issued by clerk may command commitment to jail for want of goods. Luther v. State, 85 Neb. 674, 124 N.W. 117 (1909).
Police judge has authority to issue execution to collect fine imposed for violation of city ordinance. Cleaver v. Jenkins, 84 Neb. 565, 121 N.W. 992 (1909).
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
An indigent may not be required to satisfy a fine by imprisonment. The court cannot require that a fine be satisfied by applying jail time served without giving defendant an opportunity to pay the fine or show indigency. State v. Holloway, 212 Neb. 426, 322 N.W.2d 818 (1982).
Sentence by county court that defendant was "fined sixty days in county jail" was inaccurate and was reversed with directions to resentence. Sinner v. State, 128 Neb. 759, 260 N.W. 275 (1935).
Issuance of execution to collect fine is not prerequisite to imprisonment until fine is paid. State ex rel. Marasco v. Mundell, 127 Neb. 673, 256 N.W. 519 (1934).
Prisoner, confined for nonpayment of costs, can be released only after imprisonment of at least one day for each three dollars. In re Newton, 39 Neb. 757, 58 N.W. 436 (1894); In re Dobson, 37 Neb. 449, 55 N.W. 1071 (1893).
The credit authorized under former subsection (3) of this section is limited to the situation where the person is held in custody for nonpayment and does not provide for a $90-per-day credit against costs for "extra" time incarcerated prior to sentencing. State v. Zamarron, 19 Neb. App. 349, 806 N.W.2d 128 (2011).
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
The death penalty is imposed for a conviction of murder in the first degree only in those instances when the aggravating circumstances existing in connection with the crime outweigh the mitigating circumstances. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
The U.S. Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), which requires juries to find whether aggravating circumstances exist in death penalty cases, is not a substantive change in Sixth Amendment requirements that applies retroactively and did not make aggravating circumstances essential elements of capital murder. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
The state's Special Procedure in Cases of Homicide statutes, sections 29-2519 to 29-2546, create a two-tier sentencing process and differentiate between the role performed by the district court judge or a three-judge district court panel in sentencing as compared to the role of the Supreme Court in reviewing that sentence. The statutes are specific regarding the sentencing procedures, and nowhere do they give the Supreme Court authority to resentence when it has found error on the part of the sentencing court that is not minor and not harmless. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
There is no conflict between this section and section 29-2522. Only section 29-2522 details the standards which govern the imposition of the death penalty. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996).
The Supreme Court is required, before impositing the death sentence, to not only consider the presence or absence of aggravating and mitigating circumstances but also to review death sentences and determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).
A finding that an aggravating circumstance exists is of importance only where the death sentence has been imposed. State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983).
Court refuses to reconsider constitutionality of death sentence statutes. State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981).
The Nebraska death penalty statutes, sections 29-2519 to 29-2546, do not constitute cruel and unusual punishment and are not in violation of the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States or the Bill of Rights of the Constitution of Nebraska. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
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
Nebraska Evidence Rules, see section 27-1103.
Annotations
1. Aggravating or mitigating circumstances
2. Miscellaneous
1. Aggravating or mitigating circumstances
Resentencing necessitated by a new rule of procedure requiring the jury to find the existence of aggravating circumstances in death penalty cases did not expose the defendant to greater punishment and/or violate the prohibition against ex post facto legislation. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
The Eighth Amendment does not require jury sentencing in death penalty cases; Nebraska's capital sentencing scheme is not constitutionally defective, because it requires a jury, unless waived, to determine only the existence of aggravating circumstances and a three-judge panel to determine the existence of mitigating circumstances, weigh aggravating and mitigating circumstances, and determine the sentence. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
A change in the law providing that the existence of aggravating circumstances is to be determined by a jury unless waived by the defendant is procedural in nature. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
A person convicted of first degree murder in Nebraska is not eligible for the death penalty unless the State proves one or more of the statutory aggravators beyond a reasonable doubt. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
The requirement that a notice of aggravators be filed prior to trial is not applicable to cases in which the pretrial and trial litigation steps have already been completed. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
2. Miscellaneous
The Legislature lacked constitutional authority to amend the language of the statutory penalty for a Class IA felony by inserting the phrase "without parole" after "life imprisonment" during the 2002 special session. State v. Conover, 270 Neb. 446, 703 N.W.2d 898 (2005).
A three-judge panel designated under subsection (3) of this section must vote unanimously for a sentence of death before the death penalty can be properly imposed. State v. Hochstein and Anderson, 262 Neb. 311, 632 N.W.2d 273 (2001).
This section grants the trial judge discretion to conduct the sentencing with or without the assistance of two additional judges, and a defendant's request for a three-judge panel does not make such a panel mandatory. The sentencing procedure provided by this section provides appropriate standards for impaneling a three-judge panel. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
This section does not violate the U.S. or Nebraska Constitution, and the decision whether to convene a three-judge panel under the statute is left to the discretion of the trial court. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
In Nebraska, the judge rather than the jury is responsible for sentencing upon conviction in a capital case. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).
District court's failure to set hearing date on sentencing within statutory limit is not a ground for reversal where the error does not result in some demonstrative prejudice. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).
District court shall set date for hearing on determination of sentence within seven days of defendant's conviction of murder. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
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
Nebraska Evidence Rules, see section 27-1103.
Annotations
1. Constitutionality
2. Miscellaneous
1. Constitutionality
Because the defendant could not avoid the risk of death by waiving his right to a jury, this section did not unconstitutionally burden the exercise of that right by providing that if the defendant waives the right to a jury, then members of a three-judge panel must make unanimous and written findings of fact regarding the existence of aggravating circumstances, as distinguished from jurors, who are not required to unanimously agree on the State's alternate theories supporting an aggravating circumstance. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
The Eighth Amendment does not require jury sentencing in death penalty cases; Nebraska's capital sentencing scheme is not constitutionally defective, because it requires a jury, unless waived, to determine only the existence of aggravating circumstances and a three-judge panel to determine the existence of mitigating circumstances, weigh aggravating and mitigating circumstances, and determine the sentence. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
This section applies equally to every court in the class to which it is intended to apply, and thus, it does not violate Neb. Colnst. art. V, section 19. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).
2. Miscellaneous
Because a sentencing panel is required to consider and weigh any mitigating circumstances in imposing a sentence of death, the introduction of evidence of the existence or nonexistence of these potential mitigators has probative value to the sentence, and as such, a sentencing panel has the discretion to hear evidence to address potential mitigating circumstances regardless of whether the defendant presents evidence on that issue. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
The sentencing panel could consider a defendant's no contest plea and the factual basis underlying it, but it could not use it as an admission to aggravating circumstances for sentencing purposes. State v. Jenkins, 303 Neb. 676,
931 N.W.2d 851 (2019).
Subsection (2) of this section requires a sentencing panel to consider the trial record in imposing a sentence in a death penalty case. State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
Under subsection (3) of this section, the aggravation hearing record is relevant to mitigation. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).
A change in the law providing that the existence of aggravating circumstances is to be determined by a jury unless waived by the defendant is procedural in nature. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
A person convicted of first degree murder in Nebraska is not eligible for the death penalty unless the State proves one or more of the statutory aggravators beyond a reasonable doubt. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
A sentencing court may consider information adduced at trial to support findings of aggravating and mitigating circumstances when exercising discretion in imposing sentence. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
The sentencing court has broad discretion as to the source and type of evidence or information which may be used as assistance in determining the kind and extent of the punishment to be imposed. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).
Hearing on determination of sentence shall include written findings, proven beyond a reasonable doubt, identifying any aggravating and mitigating circumstances or other relevant facts. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
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
The proportionality review made under the requirements of this section and sections 29-2521.02 and 29-2521.03 is limited to a comparison of the facts and circumstances of the death penalty-imposed case under review with those of all applicable cases in which the death penalty was imposed. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
Supreme Court's review includes only those cases in which the death penalty was imposed. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
A literal interpretation of this section would unconstitutionally encroach upon the judicial function. This section will be restricted in application to a review of cases in which the defendant in the district court was convicted of murder in the first degree. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
In sentencing for a felony not involving the death penalty, there is no requirement that the judge conduct a case-by-case review of similar sentencings in that jurisdiction. State v. Glover, 207 Neb. 487, 299 N.W.2d 445 (1980).
Sections 29-2521.01, 29-2521.02, and 29-2521.03 only require the Supreme Court to review cases involving criminal homicides committed on or after April 20, 1973, in which the trial court has imposed a sentence of death. State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
In adopting sections 29-2521.01 to 29-2522, the Legislature intended to establish a procedure whereby the death penalty would be applied uniformly throughout the state. The procedure does not come into play where the death penalty is not imposed. State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979).
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
The proportionality review made under the requirements of this section and sections 29-2521.01 and 29-2521.03 is limited to a comparison of the facts and circumstances of the death penalty-imposed case under review with those of all applicable cases in which the death penalty was imposed. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
Supreme Court's review includes only those cases in which the death penalty was imposed. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
A literal interpretation of this section would unconstitutionally encroach upon the judicial function. This section will be restricted in application to a review of cases in which the defendant in the district court was convicted of murder in the first degree. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
Sections 29-2521.01 to 29-2521.03 require the Supreme Court to review cases involving criminal homicides committed on or after April 20, 1973, in which the trial court has imposed a sentence of death. State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
In adopting sections 29-2521.01 to 29-2522, the Legislature intended to establish a procedure whereby the death penalty would be applied uniformly throughout the state. The procedure does not come into play where the death penalty is not imposed. State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979).
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
A death sentence imposed for the first degree premeditated murder of a 3-year-old boy whose body was dismembered and disposed of in pieces was proportional to that imposed in cases involving gratuitous violence inflicted upon young children. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
A proportionality review under this section looks only to other cases in which the death penalty has been imposed. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
The purpose of this section is to ensure that no sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances, and review includes only those cases in which the death penalty was imposed. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990).
This section requires the Supreme Court to determine the propriety of the death sentence in a case in which it has been imposed by comparing the sentence with previous cases involving the same or similar circumstances. The proportionality review made under the requirements of this section and sections 29-2521.01 and 29-2521.02 is limited to a comparison of the facts and circumstances of the death penalty-imposed case under review with those of all applicable cases in which the death penalty was imposed. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
Supreme Court's review includes only those cases in which the death penalty was imposed. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
Statute does not apply to death sentences imposed before April 20, 1973. State v. Peery, 223 Neb. 556, 391 N.W.2d 566 (1986).
The comparative review required by this section does not apply to a death sentence which was imposed and became final prior to the effective date of the statute. State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986).
The Supreme Court's review and analysis shall include all first degree murder convictions for offenses committed on or after April 20, 1973, including cases presently pending in this court on appeal. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).
Sections 29-2521.01 to 29-2521.03 require the Supreme Court to review cases involving criminal homicides committed on or after April 20, 1973, in which the trial court has imposed a sentence of death. State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
In adopting sections 29-2521.01 to 29-2522, the Legislature intended to establish a procedure whereby the death penalty would be applied uniformly throughout the state. The procedure does not come into play where the death penalty is not imposed. State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979).
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
An appeal pursuant to section 29-2525 does not place the burden of creating the record upon either party to the appeal. Instead, pursuant to this section, the district court must provide all records required by the Nebraska Supreme Court in order to conduct its review and analysis. State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
In adopting sections 29-2521.01 to 29-2522, the Legislature intended to establish a procedure whereby the death penalty would be applied uniformly throughout the state. The procedure does not come into play where the death penalty is not imposed. State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979).
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.
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
1. Particular cases
2. Miscellaneous
1. Particular cases
Nebraska is a "weighing" state, in which a single judge or three-judge panel determines the aggravating and mitigating circumstances and decides whether to impose the death penalty by determining whether the aggravating circumstances outweigh the mitigating circumstances. In Nebraska, when an appellate court invalidates one or more of the aggravating circumstances found by the trial court, or finds as a matter of law that any mitigating circumstance exists not considered by the sentencing panel in its balancing, the appellate court may, consistent with the U.S. Constitution, reweigh the remaining circumstances or conduct a harmless error analysis. The Supreme Court's independent review of a death sentence where the trial court erred in its findings regarding aggravating or mitigating circumstances must henceforth include an independent examination of the trial record, the presentence investigation, and the findings of the sentencing panel in order to determine the existence or nonexistence of aggravating and mitigating circumstances, as well as a reweighing of all the factors. The balancing of aggravating circumstances against mitigating circumstances is not merely a matter of number counting, but, rather, requires a careful weighing and examination of the various factors to arrive at a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present. The findings on which an aggravating circumstance is based must be proved beyond a reasonable doubt. Trial court's error in failing to consider defendant's intoxication as a mitigating factor did not constitute harmless error where it could not be determined that the trial court's weighing analysis would have been the same had the circumstance been factored into the balance. Evidence that defendant sexually assaulted or attempted to sexually assault and brutally stabbed to death a woman he had known all his life, then killed the woman's female houseguest to conceal the commission of the first murder, outweighed evidence of his remorse, amnesia, usual nonviolent nature, and intoxication such that death penalty was the appropriate sentence for each murder. State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991).
Death sentence was not excessive where the sentencing court found four statutory aggravating circumstances present and no mitigating circumstances. State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981).
Death sentence upheld where defendant murdered six family members, including children, and sexually molested female victims. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977).
Death sentence not excessive for defendant with history of multiple convictions for bank robbery, first-degree assault, and armed robbery, where defendant point-blank murdered and wounded unresisting robbery victims. State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977).
Death sentence imposed where twenty-three-year-old defendant with prior criminal convictions for aggravated assault and grand larceny killed civilian aiding police in the apprehension of defendant fleeing the scene of an armed robbery. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).
Distrct court's imposition of death sentence reduced to life imprisonment where sixteen-year-old defendant with no prior criminal record killed victim instantaneously, without torture. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
2. Miscellaneous
A court's proportionality review spans all previous cases in which a sentence of death is imposed and is not
dependent on which cases are put forward by the parties. The proportionality review does not require that a court
"color match" cases precisely, and instead, the question is simply whether the cases being compared are sufficiently
similar, considering both the crime and the defendant, to provide the court with a useful frame of reference for
evaluating the sentence in this case. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
The balancing of aggravating circumstances against mitigating circumstances in deciding whether to impose the death penalty is not merely a matter of number counting, but, rather, requires a careful weighing and examination of the various factors. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
A change in the law providing that the existence of aggravating circumstances is to be determined by a jury unless waived by the defendant is procedural in nature. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
A person convicted of first degree murder in Nebraska is not eligible for the death penalty unless the State proves one or more of the statutory aggravators beyond a reasonable doubt. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
The determination of mitigating circumstances, the balancing of aggravating circumstances against mitigating circumstances, and proportionality review are part of the selection decision in capital sentencing, which occurs only after eligibility for a death sentence has been determined. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
In reviewing a sentence of death on appeal, the Nebraska Supreme Court conducts a de novo review of the record to determine whether the aggravating and mitigating circumstances support the imposition of the death penalty. The court must also determine whether the imposition of the death penalty is excessive or disproportionate to the penalty imposed in similar cases. A criminal defendant in a capital case may lawfully waive his or her right to present mitigating evidence during sentencing. Where the record reveals that the sentence of death was the result of reasoned judgment and the careful weighing and examination of the various circumstances and factors in light of the totality of the circumstances present, one aggravating circumstance may be sufficient under Nebraska's statutory system for the sentencing court to conclude that imposition of the death penalty is appropriate. Under this section, the sentencing determination of the court shall be in writing and shall be supported by written findings of fact based upon the records of the trial and the sentencing proceeding, and referring to the aggravating and mitigating circumstances involved in its determination. The court in its sentencing order must specify the factors it relied upon in reaching its decision, and focus on the individual circumstances of each homicide and each defendant. State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
There is no conflict between section 29-2519 and this section. Only this section details the standards which govern the imposition of the death penalty. The word "approach" in subsection (2) of this section does not render this section vague. The "proportionality review" provided for in this section neither violates the Due Process Clause nor violates the prohibition against cruel and unusual punishment in the U.S. Constitution and article I, sections 3 and 9, of the Nebraska Constitution. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996).
This section is constitutional; there is no sixth amendment right to jury sentencing. A sentencing court may consider information adduced at trial to support findings of aggravating and mitigating circumstances when exercising discretioin in imposing sentence under subsection (3) of this section. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
Aggravating circumstances must be proved beyond a reasonable doubt. Once one or more aggravating circumstances have been found to exist, this section requires not a mere counting of aggravating and mitigating circumstances, but, rather, a reasoned judgment as to what factual situations require the imposition of death and which of those can be satisfied by life imprisonment in light of the totality of the circumstances present. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
No jury determination of aggravating and mitigating circumstances or the application thereof is required by state or federal constitution. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
Amendments to this section by virtue of Laws 1978, L.B. 711, do not apply to a capital case in which a final sentence was imposed prior to the effective date of L.B. 711, and such case will not be reviewed in light of the act. State v. Rust, 208 Neb. 320, 303 N.W.2d 490 (1981).
In adopting sections 29-2521.01 to 29-2522, the Legislature intended to establish a procedure whereby the death penalty would be applied uniformly throughout the state. The procedure does not come into play where the death penalty is not imposed. State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979).
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
1. Aggravating circumstances
2. Mitigating circumstances
3. Miscellaneous
1. Aggravating circumstances
"Mental anguish" is not a component of the aggravating circumstances included in subsection (1) of this section, and its use is disapproved. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
A jury instruction in a death penalty case that allowed the State to satisfy the "exceptional depravity" aggravator by proving that the defendant "apparently relished" the murder was not unconstitutionally vague; a juror would have clearly understood that the term "apparently relished" referred to his or her own perception of the defendant's conduct. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
The use of a prior offense to prove an aggravating circumstance under subsection (1)(a) of this section does not increase the penalty for the prior offense and does not expose the defendant to new jeopardy for such offense. Because the use of evidence of a prior offense to prove an aggravating circumstance under subsection (1)(a) of this section does not expose the defendant to new jeopardy for the prior offense, such use does not violate the Double Jeopardy Clause. State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
The term "especially heinous, atrocious, or cruel," as used in subsection (1)(d) of this section, is limited to cases where torture, sadism, or the imposition of extreme suffering exists, or where the murder was preceded by acts performed for the satisfaction of inflicting either mental or physical pain or when such pain existed for any prolonged period of time. This class includes murders involving torture, sadism, or sexual abuse. This prong must be looked upon through the eyes of the victim. State V. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
The two prongs of aggravating circumstance in subsection (1)(d) describe, in the disjunctive, two separate circumstances which may operate in conjunction with or independent of one another. State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
A person convicted of first degree murder in Nebraska is not eligible for the death penalty unless the State proves one or more of the statutory aggravators beyond a reasonable doubt. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
Nebraska's death penalty statutes, which include subsection (1) of this section, are neither vague nor overbroad. The terms "substantial history", "apparent effort", and "especially heinous, atrocious, cruel", as used in subsection (1) of this section, are neither vague nor overbroad. Subsection (1)(d) of this section contains two separate disjunctive components which may operate together or independently of one another. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
The word "apparent" in subsection (1)(b) of this section is neither vague nor causes subsection (1)(b) to be subject to arbitrary and capricious application. The word "apparent" in subsection (1)(b) of this section means readily perceptible. "Apparent" qualifies aggravating circumstance in subsection (1)(b) of this section to the extent that the provision cannot be applied in speculative situations or where a strained construction is necessary to fulfill it. The State must prove the existence of aggravating circumstance subsection (1)(b) of this section beyond a reasonable doubt. Aggravating circumstance subsection (1)(b) of this section is not overbroad. Aggravating circumstance subsection (1)(b) of this section does not apply only to murders which were committed to hide the defendant's involvement in some crime unrelated to the killing for which the defendant is being sentenced. The two components of aggravating circumstance subsection (1)(d) of this section may operate together or independently of one another. The second component of aggravating circumstance subsection (1)(d) of this section, if a murder manifests exceptional depravity by ordinary standards of morality and intelligence, pertains to the state of mind of the actor and may be proved by or inferred from the defendant's conduct at or near the time of the offense. "Exceptional depravity" in aggravating circumstance subsection (1)(d) of this section means "so senselessly bereft of regard for human life". "Exceptional" in aggravating circumstance subsection (1)(d) of this section confines this aggravating circumstance to only those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence. "Exceptional depravity" exists when it is shown, beyond a reasonable doubt, that the following circumstances, either separately or collectively, exist in reference to a first degree murder: (1) Apparent relishing of the murder by the killer; (2) infliction of gratuitous violence on the victim; (3) needless mutilation of the victim; (4) senselessness of the crime; or (5) helplessness of the victim. Aggravating circumstance subsection (1)(d) of this section is neither vague nor overbroad. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996).
The first prong of aggravating circumstance (1)(d) of this section, narrowed by Nebraska Supreme Court decisions defining the phrase "especially heinous, atrocious, cruel" to mean unnecessarily torturous to the victim, satisfies constitutional requirements. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995).
Aggravating circumstances must be proved beyond a reasonable doubt. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993); State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).
The first prong of aggravating circumstance (1)(d) includes pitiless crimes unnecessarily torturous to the victim and cases where torture, sadism, or the imposition of extreme suffering exists. This prong has been narrowed to include murders involving torture, sadism, or sexual abuse. Subsection (1)(d) of this section describes two separate disjunctive circumstances which may operate together or independently of one another. Thus, proof of the first prong is sufficient to establish the existence of this aggravating circumstance. State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991).
The aggravating circumstance found in subsection (1)(d) of this section literally, and as interpreted by this court, describes in the disjunctive two separate circumstances which may operate in conjunction with or independent of one another. The first circumstance is that the murder was especially heinous, atrocious, or cruel. The second circumstance pertains to the state of mind of the actor. The State needs to prove only the first prong of subsection (1)(d) for that aggravating circumstance to exist. To constitute an aggravating circumstance under the first prong of subsection (1)(d), the murder must be especially heinous, atrocious, or cruel. "Especially heinous, atrocious, (or) cruel" is limited to cases where torture, sadism, or the imposition of extreme suffering exists, or where the murder was preceded by acts performed for the satisfaction of inflicting either mental or physical pain or that pain existed for any prolonged period of time. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991).
The "especially heinous, atrocious, or cruel" language of subsection (1)(d) of this section is limited to cases where torture, sadism, or the imposition of extreme suffereing exists, or where murder was preceded by acts performed for the satisfaction of inflicting either mental or physical pain or that pain existed for any prolonged period of time. In order for aggravating circumstance (1)(d) to be present, the method of killing must entail something more than the ordinary circumstances which attend any death-dealing violence. This limiting construction of (1)(d) saves it from violating the U.S. Constitution. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
Subsection (1)(b) of this section is not unconstitutionally vague. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990).
The specific delineation of aggravating factors in this section constitutes sufficient notice to a defendant who is charged with first degree murder. The State is not constitutionally required to provide the defendant with notice as to which particular aggravating circumstance or circumstances upon which the State will rely in seeking the death penalty. This section exclusively lists the aggravating factors which may be relied upon in imposing the death penalty. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990).
Under subsection (1)(a) of this section: (1) A sentencing court may not consider the same evidence to support different aggravating factors. However, a sentencing court may consider evidence of distinct incidents to support different aggravating factors; (2) the facts upon which the applicability of an aggravating factor depends must be proved beyond a reasonable doubt; and (3) the use of the term "history" refers to events prior to the acts out of which the charge arose. Under the court's narrow interpretation and application, subsection (1)(a) of this section is not unconstitutionally vague or overbroad. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).
Mere proof that an offender was previously convicted of two assaults of unspecified degree and of an attempted second degree assault does not in and of itself establish beyond a reasonable doubt the existence of the aggravating circumstance defined in subsection (1)(a) of this section. State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987).
Any serious assaultive or terrorizing criminal activity committed by the accused prior to the time of the offense may properly be considered when deciding the applicability of subsection (1)(a) of this section. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
"Exceptional depravity," as used in subsection (1)(d) of this section, refers and pertains to the state of mind of the actor and may be proved by or inferred from the defendant's conduct at or near the time of the offense. "Exceptional depravity" exists when the act is totally and senselessly bereft of any regard for human life as shown by the presence of the following circumstances, either separately or collectively: (1) Apparent relishing of the murder; (2) infliction of gratuitous violence on the victim; (3) needless mutilation of the victim; (4) senselessness of the crime; or (5) helplessness of the victim. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
Subsection (1)(d) of this section, that a murder be "especially heinous, atrocious, cruel" or manifest "exceptional depravity by ordinary standards of morality and intelligence," describes in the disjunctive at least two distinct components of the aggravating circumstance which may operate in conjunction with or independent of one another. The presence of any of the components will sustain a finding that aggravating circumstance (1)(d) exists. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
The words "especially heinous, atrocious, cruel," as used in subsection (1)(d) of this section, mean a conscienceless or pitiless crime which is unnecessarily torturous to the victim, and a determination thereof must be looked upon through the eyes of the victim and should be applied where torture, sadism, or the imposition of extreme suffering exists. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
What constitutes aggravating circumstances is not left to the discretion of either the sentencing court or the Supreme Court but, instead, is set out by statute in detail. Aggravating circumstances must be proved beyond a reasonable doubt. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
For the purpose of subsection (1)(d) of this section as an aggravating circumstance in determining whether the death penalty may be imposed, "exceptional depravity" refers to the state of mind of the actor and exists when it is shown beyond a reasonable doubt that the following circumstances, either separately or collectively, exist in reference to a first degree murder: (1) Apparent relishing of the murder by the killer; (2) infliction of gratuitous violence on the victim; (3) needless mutilation of the victim; (4) senselessness of the crime; or (5) helplessness of the victim. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
Aggravating circumstance (1)(b) does not exist unless the murder was committed for the purpose of concealing the commission of a crime or for the purpose of concealing the identity of the perpetrator of a crime. Aggravating circumstance (1)(d) does not exist unless the method of killing itself entails something more than the ordinary circumstances which attend any death-dealing violence. A death sentence cannot be imposed absent the existence of at least one of the aggravating circumstances set forth in this section. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).
Subsection (1)(d) of this section is not unconstitutionally vague. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).
No jury determination of aggravating and mitigating circumstances or the application thereof is required by state or federal constitution. A state of mind which indicates a callous disposition to repeat the crime of murder manifests exceptional depravity by ordinary standards of morality and intelligence within the meaning of subsection (1)(d) of this section. An aggravating circumstance existed where the murder was committed to conceal the identity of the perpetrator of a robbery under subsection (1)(b) of this section. State v. Moore, 210 Neb. 457 316 N.W.2d 33 (1982).
Circumstances of victim's death, found bound and gagged when killed, constituted effort to conceal identity of perpetrator. State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977).
Murder committed during act of robbery held not a murder for pecuniary gain herein. State v. Peery, 1999 Neb. 656, 261 N.W.2d 95 (1977).
Prior record of multiple crimes of violence constituted an aggravating circumstance. State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977).
2. Mitigating circumstances
Mitigating circumstances involve, in part, circumstances surrounding the underlying crime and include pressure or influences which may have weighed on the defendant, potential influence on the defendant of extreme mental or emotional disturbance at the time of the offense, potential victim participation or consent to the act, the defendant's capacity to appreciate the wrongfulness of the act at the time of the offense, and any mental illness, defect, or intoxication which may have contributed to the offense. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
For purposes of subsection (2)(c) of this section, "extreme" means that the mental or emotional disturbance must be existing in the highest or the greatest possible degree, very great, intense, or most severe. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
The fact that a defendant has some sort of mental illness or defect does not by itself establish that 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. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
Under subsection (2) of this section, there is no burden of proof with regard to mitigating circumstances. The State may present evidence which is probative of the nonexistence of a statutory or nonstatutory mitigating circumstance, while the defendant may present evidence which is probative of the existence of a statutory or nonstatutory circumstance. However, because sections 29-2519 et seq. do not require the State to disprove the existence of mitigating circumstances, they do place the risk of nonproduction and nonpersuasion on the defendant. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990); State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990).
Subsection (2) of this section is not unconstitutional. The mitigating circumstance found in subsection (2)(c) of this section, which limits mental or emotional disturbance to cases which are extreme, is not constitutionally infirm where court decisions permit consideration of any aspects of mitigation. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990).
Under subsection (2) of this section, it is constitutionally permissible to allow the sentencing judge or judges in a capital case to consider prior uncounseled convictions in determining the existence or nonexistence of a mitigating circumstance and it is constitutionally permissible to allow the sentencing judge or judges in a capital case to consider unadjudicated misconduct in determining the existence or nonexistence of a mitigating circumstance, provided the defendant is given an opportunity to rebut the charges. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990).
A defendant may offer any evidence on the issue of mitigation, even though the mitigating factor is not specifically listed in this section. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
This section does not in any way limit the mitigating circumstances a sentencing court may consider, and the sentencing court should be liberal in admitting evidence the defendant asserts is a mitigating factor. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
3. Miscellaneous
In death penalty cases, an eligibility or selection factor is not unconstitutional if it has some commonsense core of meaning that a juror can understand. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Jurors are not required to unanimously agree on the means by which a capital defendant manifests exceptional depravity under subsection (1)(d) of this section. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Under this section, the balancing of aggravating circumstances against mitigating circumstances is not merely a matter of number counting, but, rather, requires a careful weighing and examination of the various factors. State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
Pursuant to subsection (1)(h) of this section, there is no requirement under this section that the murder must be an immediate and direct attempt to disrupt or hinder the enforcement of the laws; the only requirement is that the defendant must do so knowingly. Subsection (2)(b) of this section contemplates only outside pressures, not those created by the defendant's own acts. Pursuant to subsection (2)(c) of this section, if the extreme mental or emotional disturbance is the result of a mental illness or defect, it falls within the broader purview of subsection (2)(g) of this section. Section 28-105.01 merely narrows the application of subsection (2)(d) of this section to persons of advanced years. State v. Lotter 255 Neb. 456, 586 N.W.3d 591 (1998).
The facts establishing an aggravating circumstance must be proved beyond a reasonable doubt. Definitions of aggravating and mitigating circumstances discussed and interpreted. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993); State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991); State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991); State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990); State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).
In certain circumstances, an appellate court may reweigh the aggravating and mitigating circumstances. A court is not limited to the statutory mitigating factors. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991).
The courts are required to consider any relevant evidence in mitigation. The balancing of aggravating circumstances against mitigating circumstances is not merely a matter of number counting but, rather, requires a careful weighing and examination of the various factors. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990).
In arriving at a sentence in a first degree murder case, the court is not limited in its consideration to the factors listed in this section but may consider any matter relevant to imposition of sentence and receive any evidence with probative value as to the character of the defendant. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990); State v. Holtan, 205 Neb. 314, 287 N.W.2d 671 (1980).
Where a defendant has testified in a previous criminal case under a lawful grant of immunity, the sentencing court in a subsequent criminal case cannot consider such testimony or any information directly or indirectly derived from it in determining whether a death sentence should be imposed under the provisions of this section and related statutes. State v. Jones, 213 Neb. 1, 328 N.W.2d 166 (1982).
The definitions of aggravating and mitigating circumstances are not unconstitutionally vague. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
This section, as interpreted in State v. Holtan, 205 Neb. 314, 287 N.W.2d 671 (1980), meets the requirements of the Neb. Const. article 1, section 9, and of the U.S. Constitution. State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980).
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
Constitutional provisions:
Board of Pardons, see Article IV, section 13, Constitution of Nebraska.
Board of Pardons, see section 83-1,126.
Annotations
A person convicted of first degree murder in Nebraska is not eligible for the death penalty unless the State proves one or more of the statutory aggravators beyond a reasonable doubt. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
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.
Annotations
An appeal pursuant to this section does not place the burden of creating the record upon either party to the appeal. Instead, pursuant to section 29-2521.04, the district court must provide all records required by the Nebraska Supreme Court in order to conduct its review and analysis. The Nebraska Supreme Court has the authority and the obligation to enforce the requirement that all records for any automatic appeal under this section are filed with the Clerk of the Supreme Court. State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
This statute requires the Supreme Court to review all cases in which the death penalty has been imposed. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990); State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
A determination of whether a defendant is a sexual sociopath is of no importance where a death sentence has been imposed. The purpose of the sexual sociopath law is to provide confinement with treatment for those persons subject to the laws who are amenable to treatment and confinement without treatment for those subject to the law but not amenable to treatment. Sentencing is not to be delayed indefinitely where sexual sociopath proceedings have been instituted. Once the death penalty has been imposed, none of the defendant's contentions concerning the sexual sociopath law requires further consideration. State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979).
Supreme Court automatically reviews each case where death penalty imposed, comparing all previous capital cases where death penalty has or has not been imposed under the new death penalty statute. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).
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.
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
Nebraska Supreme Court has jurisdiction to set successive execution dates and issue warrants as may be needed. State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994).
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
Adult offender received for parole supervision, monthly programming fee, see section 83-1,107.01.
Adult offender received for probation supervision, monthly programming fee, see section 29-2262.06.
Office of Parole Administration, duties, see section 83-933.
Office of Probation Administration, duties, see sections 29-2250 and 29-2254.
Warrant or detainer, duties of parole administrator, see section 83-1,125.
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
Fines and penalties collected by clerk of the district court are public money. State ex rel. Broatch v. Moores, 52 Neb. 770, 73 N.W. 299 (1897).
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
This section recognizes the constitutional requirement for disposition of fines, penalties, and license money. School Dist. No. 54 v. School Dist. of Omaha, 171 Neb. 769, 107 N.W.2d 744 (1961).
Where clerk of district court deposits money received from payment of fines in bank to his own individual credit, he thereby converts money to his own use. State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N.W. 530 (1898).
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
Taxation of jury costs to defendant under this section requires finding by district court supported by evidence that appeal was frivolous or capricious. State v. Stanosheck, 186 Neb. 17, 180 N.W.2d 226 (1970).
Taxing as costs of meals, lodging, and mileage of jurors is not authorized. State v. Jungclaus, 176 Neb. 641, 126 N.W.2d 858 (1964).
Costs cannot be paid by county unless approval of prosecution by county attorney is obtained. Conkling v. DeLany, 167 Neb. 4, 91 N.W.2d 250 (1958).
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
Section does not fix liability on county for fees of defendant's witnesses. Worthen v. Johnson County, 62 Neb. 754, 87 N.W. 909 (1901).
County is liable for costs on felony charge whether accused was held to answer in court or not. If charge should have been for misdemeanor, board may disallow. Dodge County v. Gregg, 14 Neb. 305, 15 N.W. 741 (1883).
Section is constitutional. Costs in misdemeanor cases may be disallowed by county board. Boggs v. Washington County, 10 Neb. 297, 4 N.W. 984 (1880).
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
Exemption of certain type or class of offense from the imposition of costs is not an unconstitutional classification. State ex rel. Douglas v. Gradwohl, 194 Neb. 745, 235 N.W.2d 854 (1975).
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
This section recognizes the constitutional requirement for disposition of fines, penalties, and license money. School Dist. No. 54 v. School Dist. of Omaha, 171 Neb. 769, 107 N.W.2d 744 (1961).
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
Law Enforcement Improvement Fund, fee, see section 81-1429.
Nebraska Retirement Fund for Judges, fee, see section 24-703.
Annotations
Exemption of certain type or class of offense from the imposition of costs is not an unconstitutional classification. State ex rel. Douglas v. Gradwohl, 194 Neb. 745, 235 N.W.2d 854 (1975).
Counties are obligated to pay costs and expenses of prosecutions, including fees and expenses of attorneys appointed to represent indigent defendants in criminal cases, and there is no requirement that a property tax be levied therefor. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975).
Costs are not allowed in misdemeanor cases unless the suit is instituted with the consent of the county attorney or approved by him in writing. State v. Jungclaus, 176 Neb. 641, 126 N.W.2d 858 (1964).
To authorize payment of costs by county, consent or approval of county attorney to prosecution must be obtained. Conkling v. DeLany, 167 Neb. 4, 91 N.W.2d 250 (1958).
Provisions of this section are for the benefit of officers and witnesses earning fees in misdemeanor and peace warrant causes. Dodge County v. Gregg, 14 Neb. 305, 15 N.W. 741 (1883); Boggs v. Washington County, 10 Neb. 297, 4 N.W. 984 (1880).
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
Section does not create new liability on county. Hewerkle v. Gage County, 14 Neb. 18, 14 N.W. 549 (1883).
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
1. Jurisdiction
2. Requirement in petition
3. When allowed
4. When denied
5. Miscellaneous
1. Jurisdiction
After the court's jurisdiction has been invoked by a petition for habeas corpus seeking the custody of children, the children become wards of the court and their welfare lies in the hands of the court. Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018).
The failure to attach a copy of the relevant commitment order to a petition for a writ of habeas corpus, as required by this section, does not prevent a court from exercising jurisdiction over that petition. O'Neal v. State, 290 Neb. 943, 863 N.W.2d 162 (2015).
This section discusses the extent of a district or county court's subject matter jurisdiction over writs of habeas corpus; venue in habeas corpus actions is determined by Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920). Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).
An application for a writ of habeas corpus to release a prisoner confined under sentence of court must be brought in the county where the prisoner is confined. Where proceedings are instituted in another county, it is the duty of the court, on objection to its jurisdiction, to dismiss the proceedings. Addison v. Parratt, 204 Neb. 656, 284 N.W.2d 574 (1979); Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920).
County court does not have jurisdiction in habeas corpus proceedings to release an accused person held for trial in district court. McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961).
Rules governing allowance of writ of habeas corpus are restated and clarified. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946); Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136 (1946).
Original jurisdiction in habeas corpus has been conferred upon the county court in certain cases. Williams v. Olson, 143 Neb. 115, 8 N.W.2d 830 (1943).
Where application is made for a writ of habeas corpus to the district court of a county other than the one in which the prisoner is confined, and the officer in whose custody the prisoner is held brings the latter into court and submits to jurisdiction without objection, the prisoner is then under confinement in the county where the action was brought. In such case, the court has the authority to inquire into the legality of his or her restraint. Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920).
Application for writ by parent to recover possession of minor child may be brought in district court of county where unlawful detention takes place. State ex rel. Gunnarson v. Nebraska Children's Home Society, 94 Neb. 255, 143 N.W. 203 (1913).
County court does not have authority to issue writ of habeas corpus to be served in adjoining county to bring before court a nonresident child. Johnson v. Terry, 85 Neb. 267, 122 N.W. 984 (1909).
United States commissioner has no authority to issue writ. State ex rel. Atty. Gen. v. Burr, 19 Neb. 593, 28 N.W. 261 (1886).
2. Requirement in petition
Failing to present the statutorily required copy of the commitment and detention order prevents a district court from proceeding to the relief sought by a defendant's habeas corpus action. Gallion v. Zinn, 236 Neb. 98, 459 N.W.2d 214 (1990).
Habeas corpus is not demandable of right but legal cause must be shown to entitle petitioner to its benefit. Swanson v. Jones, 151 Neb. 767, 39 N.W.2d 557 (1949).
Habeas corpus is a writ of right, but not a writ of course. Probable cause for issuance thereof must be shown. In re Application of Tail, Tail v. Olson, 145 Neb. 268, 16 N.W.2d 161 (1944).
Failure to set out copy of process in application is excused when facts alleged indicate nonexistence of warrant. Urban v. Brailey, 85 Neb. 796, 124 N.W. 467 (1910).
Petition based upon alleged want of probable cause should set out testimony; evidence may justify commitment though insufficient to convict. Rhea v. State, 61 Neb. 15, 84 N.W. 414 (1900).
Petition for writ must state facts which constitute illegal restraint. State ex rel. Distin v. Ensign, 13 Neb. 250, 13 N.W. 216 (1882).
3. When allowed
A parolee may seek relief through Nebraska's habeas corpus statute. Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015).
Under Nebraska law, the availability of habeas corpus is restricted to situations where the sentence imposed is absolutely void. Piercy v. Parratt, 202 Neb. 102, 273 N.W.2d 689 (1979).
Habeas corpus proceeding is a proper remedy to determine the right to the custody of a child. In re Application of Schwartzkopf, 149 Neb. 460, 31 N.W.2d 294 (1948).
Habeas corpus is a special civil proceeding providing summary remedy open to persons illegally detained. In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944).
To obtain release by habeas corpus, judgment must be absolutely void. In re James Carbino, 117 Neb. 107, 219 N.W. 846 (1928); Hulbert v. Fenton, 115 Neb. 818, 215 N.W. 104 (1927); Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904); Keller v. Davis, 69 Neb. 494, 95 N.W. 1028 (1903).
Writ of habeas corpus is proper remedy where one is deprived of his liberty by reason of void judgment. In re Resler, 115 Neb. 335, 212 N.W. 765 (1927).
Writ lies where defendant has been arrested under void city ordinance. In re Application of McMonies, 75 Neb. 702, 106 N.W. 456 (1906).
Where detention is had under void sentence in contempt proceedings, habeas corpus is proper remedy. In re Havlik, 45 Neb. 747, 64 N.W. 234 (1895).
4. When denied
Habeas corpus is not a proper remedy to challenge a petitioner's detention pursuant to a final conviction and sentence on the basis that the statute underlying the conviction is unconstitutional. Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).
To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void. Habeas corpus will not lie to discharge a person from a sentence of penal servitude where the court imposing the sentence had jurisdiction of the offense and had jurisdiction of the person of the defendant, and the sentence was within the power of the court to impose. Anderson v. Gunter, 235 Neb. 560, 456 N.W.2d 286 (1990).
Habeas corpus is not the proper action to challenge the validity of a detainer based upon an untried complaint, where the state filing the detainer has not requested transfer of the prisoner. Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989).
Writ of habeas corpus is not available to persons lawfully convicted or merely to challenge conditions of incarceration. Pruitt v. Parratt, 197 Neb. 854, 251 N.W.2d 179 (1977).
Habeas corpus is not available to discharge a prisoner from a sentence of penal servitude if the court imposing it has jurisdiction of the offense and of the person charged with the crime, and if the sentence was within the power of the court. Case v. State, 177 Neb. 404, 129 N.W.2d 107 (1964).
After conviction, release pending hearing is not demandable of course. Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952).
Courts may not by habeas corpus deprive parents of the custody of their children unless parents are shown to be unfit. Boucher v. Dittmer, 151 Neb. 580, 38 N.W.2d 401 (1949).
Habeas corpus is never allowed as substitute for appeal or proceedings in error. Hulbert v. Fenton, 115 Neb. 818, 215 N.W. 104 (1927); Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904); In re Langston, 55 Neb. 310, 75 N.W. 828 (1898).
Upon habeas corpus to discharge person held under warrant of extradition, if return to writ shows facts sufficient to justify detention of accused, it is sufficient. In re Willard, 93 Neb. 298, 140 N.W. 170 (1913).
Irregularities in commitment for contempt by justice of peace are not reviewable on habeas corpus. In re Hammond, 83 Neb. 636, 120 N.W. 203 (1909).
Insufficiency of complaint to state crime cannot ordinarily be raised by habeas corpus. Rhyn v. McDonald, 82 Neb. 552, 118 N.W. 136 (1908).
There is no provision for motion for new trial in county court on application for writ. Writ may not be allowed though complaint is subject to successful attack by demurrer. State ex rel. Gardiner v. Shrader, 73 Neb. 618, 103 N.W. 276 (1905).
Decision of Governor that party held under extradition warrant is a fugitive from justice cannot be reviewed on habeas corpus. Dennison v. Christian, 72 Neb. 703, 101 N.W. 1045 (1904).
Sentence in excess of statutory period is not ground for writ. In re Fanton, 55 Neb. 703, 76 N.W. 447 (1898).
On arrest on extradition warrant, evidence on preliminary hearing in other state will not be examined. In re Van Sciever, 42 Neb. 772, 60 N.W. 1037 (1894).
Irregularities before grand jury cannot be considered on habeas corpus. In re Betts, 36 Neb. 282, 54 N.W. 524 (1893).
Defendant out on bail is not entitled to writ, but should surrender himself. Spring v. Dahlman, 34 Neb. 692, 52 N.W. 567 (1892).
Commitment to reform school is not reviewable on habeas corpus. Buchanan v. Mallalieu, 25 Neb. 201, 41 N.W. 152 (1888).
Where defendant is committed to jail in default of fine, writ will not issue until fine is paid. Ex parte Johnson, 15 Neb. 512, 19 N.W. 594 (1884).
Supreme Court will not weigh evidence if testimony shows commission of offense. In re Balcom, 12 Neb. 316, 11 N.W. 312 (1882).
5. Miscellaneous
Courts are cautioned in habeas proceedings to follow the traditional procedure illustrated by the habeas corpus statutes rather than make up their own procedure. Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018).
The State cannot collaterally attack in a habeas action a prior sentence that the court erroneously failed to enhance under the habitual criminal statutes. Meyer v. Frakes, 294 Neb. 668, 884 N.W.2d 131 (2016).
Issue of writ by district judge to county outside district is discretionary. State ex rel. Thompson v. Porter, 78 Neb. 811, 112 N.W. 286 (1907).
Habeas corpus involving custody of child is a proceeding in rem. Terry v. State, 77 Neb. 612, 110 N.W. 733 (1906).
Procedure for review is same as in civil actions. State v. Decker, 77 Neb. 33, 108 N.W. 157 (1906).
The law-of-the-case doctrine applies to issues raised in a petition for a writ of habeas corpus if that same issue was raised in the appellate court on direct appeal. Gray v. Kenney, 22 Neb. App. 739, 860 N.W.2d 214 (2015).
Under Nebraska law, scope of remedy of writ of habeas corpus is limited. Shupe v. Sigler, 230 F.Supp. 601 (D. Neb. 1964).
Writ of habeas corpus is not available in federal court until relief has been sought in state court by writ of error coram nobis without avail. Schwein v. Olson, 56 F.Supp. 993 (D. Neb. 1944).
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
A person to whom a writ of habeas corpus is directed makes response to the writ, not to petition therefor. In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944).
When a child of age of 21 months is the subject of habeas corpus proceeding, it is not necessary that the child remain in the courtroom at all times, but the court may direct on what occasions, during the trial, it shall be brought into court. Kaufmann v. Kaufmann, 140 Neb. 299, 299 N.W. 617 (1941).
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
The appropriate form of relief from denial of a motion to reduce excessive bail is by habeas corpus. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
Statute contemplates that relator shall be discharged, committed, or let to bail. Rhodes v. Houston, 172 Neb. 177, 108 N.W.2d 807 (1961).
Resort may be had to habeas corpus to review discretion of district court in fixing the amount of bail. Kennedy v. Corrigan, 169 Neb. 586, 100 N.W.2d 550 (1960).
Principles governing issuance of writ of habeas corpus stated. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).
Court should require prisoner to enter into recognizance for appearance where order of discharge from bailable offense is appealed. Hulbert v. Fenton, 115 Neb. 818, 215 N.W. 104 (1927).
When it appears that petitioner stands charged with bailable offense and his sureties are for any cause released from liability, he will be remanded to district court. State ex rel. Emerson v. Bauman, 87 Neb. 273, 126 N.W. 857 (1910).
If commitment on which prisoner is detained is insufficient, but information against him charges a crime, court will recommit him to the court having jurisdiction of offense. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904).
Order fixing amount of bail will not be disturbed upon habeas corpus unless amount is unreasonably great and disproportionate to the offense charged. In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893).
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
Principle of res judicata does not apply in cases of habeas corpus to judgment discharging prisoner when discharge was not upon merits but for defect of proof. State ex rel. Flippin v. Sievers, 102 Neb. 611, 168 N.W. 99 (1918).
To recover penalty, plaintiff must show statutory conditions exist. Hier v. Hutchings, 58 Neb. 334, 78 N.W. 638 (1899).
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
Uniform Criminal Extradition Act, see section 29-758.
Annotations
Courts are bound by construction of extradition laws adopted by Supreme Court of United States and will not review questions of evidence decided by Governor. In re Willard, 93 Neb. 298, 140 N.W. 170 (1913).
This section does not authorize extradition without proof that accused is fugitive. Dennison v. Christian, 72 Neb. 703, 101 N.W. 1045 (1904).
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
This section does not apply where a person is imprisoned in the state penitentiary under sentence imposed by a court of record. Dunham v. O'Grady, 137 Neb. 649, 290 N.W. 723 (1940).
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
Court may require person who is shown to have control of prisoner to produce him. Nebraska Children's Home Society v. State, 57 Neb. 765, 78 N.W. 267 (1899).
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
Sufficiency of return raised but not decided. Rhodes v. Houston, 172 Neb. 177, 108 N.W.2d 807 (1961).
Where failure to comply with this section was not challenged in trial court, objection thereto could not be raised on appeal. In re Application of Bruno, 153 Neb. 445, 45 N.W.2d 178 (1950).
Party to whom writ is directed must set forth in return authority to hold and detain applicant for writ. In re Application of Robinson, 150 Neb. 443, 34 N.W.2d 887 (1948).
A person to whom a writ of habeas corpus is directed makes response to the writ, not to the petition therefor. In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944).
In the return to writ of habeas corpus, facts must appear which warrant restraint of party detained. In re Application of Niklaus, Niklaus v. Holloway, 144 Neb. 503, 13 N.W.2d 655 (1944).
When return to writ shows relator to be in custody of officer against whom it is directed and no facts appear warrant restraint of respondent, it is duty of court to order his discharge. Rose v. Vosburg, 107 Neb. 847, 187 N.W. 46 (1922).
In making return to writ of habeas corpus, officer detaining petitioner is required to set out copy of warrant of arrest and detention. Chandler v. Sipes, 103 Neb. 111, 170 N.W. 604 (1919).
In making return by officer, copy of process should be set out or sufficient reason assigned for failure. Urban v. Brailey, 86 Neb. 217, 125 N.W. 543 (1910), affirming 85 Neb. 796, 124 N.W. 467 (1910).
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
In habeas corpus proceeding against the warden of the state penitentiary, seeking the release of a prisoner, the return to the writ is prima facie evidence of the cause of detention. Goodman v. O'Grady, 135 Neb. 612, 283 N.W. 213 (1939); Sanclaer v. State, 111 Neb. 473, 196 N.W. 686 (1923).
Warrant of arrest and detention in hands of officer executing it is prima facie evidence of cause of detention. Chandler v. Sipes, 103 Neb. 111, 170 N.W. 604 (1919).
Return of officer is prima facie evidence of facts therein stated. McIntyre v. Mote, 77 Neb. 418, 109 N.W. 763 (1906).
Respondent is bound to establish, by evidence, facts set up in return. In re Application of Thomsen, 1 Neb. Unof. 751, 95 N.W. 805 (1901).
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.
Annotations
1. Civil nature of proceedings
2. Miscellaneous
1. Civil nature of proceedings
The dismissal of a habeas corpus petition in the same action as a petition in error may be reviewed on appeal in the same manner as a civil case. Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021).
Procedure on appeal in habeas corpus proceedings is the same as in civil cases. Neudeck v. Buettow, 166 Neb. 649, 90 N.W.2d 254 (1958).
Proceedings may be reviewed as provided by law in civil actions. State ex rel. Miller v. Cavett, 163 Neb. 584, 80 N.W.2d 692 (1957).
The doctrine of res judicata may be applied in habeas corpus proceedings. Williams v. Olson, 145 Neb. 282, 16 N.W.2d 178 (1944).
Final orders in habeas corpus proceedings may be reviewed on appeal. The test of finality of order for purpose of appeal is whether particular proceeding or action is terminated by judgment. In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944).
Proceedings for writ are civil in nature and under present statute can be brought to Supreme Court only by appeal. Writ is not allowed to correct errors of inferior tribunals. In re Application of Selicow, 100 Neb. 615, 160 N.W. 991 (1916).
An appeal in a habeas corpus case is the same as that provided in a civil case. Graminea v. State, 206 F.Supp. 308 (D. Neb. 1962).
2. Miscellaneous
It is implicit in this section that a prisoner released by a trial court's writ of habeas corpus may be directed to return to custody if the writ is reversed on appeal. Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007).
The doctrine of credit for time erroneously at liberty, which holds that a prisoner is entitled to credit against his or her sentence for time spent erroneously at liberty due to the State's negligence, is not applicable to a release on bail pursuant to this section. Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007).
This section is intended to balance the interests of the State and the prisoner in a habeas action by allowing the prisoner to ask for immediate release, yet permitting the State to effectively seek appellate review of a trial court's decision to grant the writ. Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007).
State has right to bring error to reverse order discharging prisoner after conviction. Atwood v. Atwater, 34 Neb. 402, 51 N.W. 1073 (1892).
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
No prepayment of fees is necessary in order to file a petition for a writ of habeas corpus based upon an issue of custody in a criminal case. Buggs v. Frakes, 298 Neb. 432, 904 N.W.2d 664 (2017).
Under former law Post Conviction Act did not provide for allowance of attorney's fees. State v. Konvalin, 181 Neb. 554, 149 N.W.2d 755 (1967).
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.
Annotations
The Convicted Sex Offender Act does not apply to persons previously convicted of a sexual offense but determined not to be mentally disordered under the prior mentally disordered sex offender act. State v. Wragge, 246 Neb. 864, 524 N.W.2d 54 (1994).
The Convicted Sex Offender Act does not apply to persons classified as untreatable or presently untreatable. State v. Sell, 244 Neb. 618, 508 N.W.2d 273 (1993).
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.
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.
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.
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.
Cross References
Nebraska Evidence Rules, see section 27-1103.
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.
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.
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.
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.
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.
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.
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.
Annotations
1. Scope
2. Basis for relief
3. Successive motions
4. Statute of limitations
5. Evidentiary hearing
6. Procedure
7. Miscellaneous
1. Scope
A motion for postconviction relief cannot be used to secure review of issues that were known to the defendant and which were or could have been litigated on direct appeal. State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021).
Postconviction relief is a very narrow category of relief and is not intended to secure a routine review for any defendant dissatisfied with his or her sentence. State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021).
A method-of-execution claim is not cognizable in postconviction because it does not challenge the underlying conviction or the sentence itself; so, such a claim, even if successful, would not render the judgment void or voidable, as required by this section. State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).
Postconviction relief is not available to individuals who are no longer in custody but are subject to noncustodial registration requirements pursuant to the Sex Offender Registration Act. State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009).
In an action under Nebraska's postconviction statute, an issue of constitutional dimension involving a sentence does not constitute grounds for postconviction relief unless it also constitutes grounds for finding the sentence void or voidable. State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006).
The postconviction act specifically provides a procedure in which to file a motion seeking to vacate a sentence based on allegations that it is void. State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
The postconviction remedy of a new direct appeal is not appropriate where the claim of ineffective assistance of counsel is based upon acts or omissions occurring in the pretrial or trial stages of a criminal prosecution. State v. Meers, 267 Neb. 27, 671 N.W.2d 234 (2003).
A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
Failure to litigate a known issue on direct appeal results in the movant's being procedurally barred from raising the issue in a motion for postconviction relief. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal, no matter how the issues may be phrased or rephrased. State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002).
The power to grant a new direct appeal is implicit in this section, and the district court has jurisdiction to exercise such power where the evidence establishes a denial or infringement of the right to effective assistance of counsel at the direct appeal stage of the criminal proceedings. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).
A request to compel state-funded DNA testing cannot be brought under this section. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
The Nebraska Postconviction Act, section 29-3001 et seq., is available to a criminal defendant to show that his or her conviction was obtained in violation of his or her constitutional rights. State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000).
Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999).
The Nebraska Postconviction Act requires that a prisoner seeking relief under the act must be in actual custody in Nebraska under a Nebraska sentence. State v. Eutzy, 242 Neb. 851, 496 N.W.2d 529 (1993); State v. Whitmore, 234 Neb. 557, 452 N.W.2d 31 (1990).
A prisoner who has been discharged from parole is no longer in actual custody in Nebraska under a Nebraska sentence for the purpose of the Nebraska Postconviction Act. State v. Costanzo, 242 Neb. 478, 495 N.W.2d 904 (1993).
Under a broad reading of this section, court-ordered probation constitutes "custody under sentence" for postconviction relief remedies. State v. Styskal, 242 Neb. 26, 495 N.W.2d 313 (1992).
Excessive sentence is not a proper subject for postconviction relief. A court is not required to grant an evidential hearing on a motion for postconviction relief which alleges only conclusions of law or fact; nor is an evidential hearing required under the Nebraska Postconviction Act when (1) the motion for postconviction relief does not contain sufficient factual allegations concerning a denial or violation of constitutional rights affecting the judgment against the movant; or (2) notwithstanding proper pleading of facts in a motion for postconviction relief, the files and records in a movant's case do not show a denial or violation of the movant's constitutional rights causing the judgment against the movant to be void or voidable. In an appeal of a postconviction proceeding, the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Russell, 239 Neb. 979, 479 N.W.2d 798 (1992).
Alleged conflict of interest at trial and at sentencing could have been presented on direct appeal, and failure to do so is procedural default which barred review in postconviction proceeding. For postconviction purposes, issues raised in a prior proceeding but disposed of procedurally are not already litigated. State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991).
A motion for postconviction relief under this section cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how these issues may be phrased or rephrased. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991); State v. Kern, 232 Neb. 799, 442 N.W.2d 381 (1989).
A prisoner who has been paroled is "in custody under sentence" for purposes of this section of the Postconviction Act. State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990).
The phrase "in custody under sentence," as used in the Nebraska Postconviction Act, requires that a prisoner seeking relief be in actual custody in Nebraska under a Nebraska sentence. State v. Harper, 233 Neb. 841, 448 N.W.2d 407 (1989).
A motion for postconviction relief may not be used to obtain a further review of issues already litigated, and the mere fact that the issues are rephrased does not change that rule. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989).
This provision applies only where the prisoner has sustained such a denial or infringement of constitutional rights that the judgment is void or voidable. State v. Ferrell, 230 Neb. 958, 434 N.W.2d 331 (1989).
Except for the specific provisions set out in the Postconviction Act, a motion for postconviction relief cannot be used to secure review of issues which were known to the defendant at the time of his trial, plea, sentencing, or commitment. State v. Blankenfeld, 228 Neb. 611, 423 N.W.2d 479 (1988).
A motion for postconviction relief cannot be used to secure review of issues which have already been litigated on direct appeal, or which were known to the defendant and counsel at the time of trial and which were capable of being raised, but were not raised, in the defendant's direct appeal. State v. Petitte, 228 Neb. 144, 421 N.W.2d 460 (1988); State v. Hurlburt, 221 Neb. 364, 377 N.W.2d 108 (1985).
A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated. State v. Pratt, 224 Neb. 507, 398 N.W.2d 721 (1987); State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); State v. Nokes, 209 Neb. 293, 307 N.W.2d 521 (1981); State v. Weiland, 190 Neb. 111, 206 N.W.2d 336 (1973); State v. Losieau, 182 Neb. 367, 154 N.W.2d 762 (1967).
Any matter which can be determined from the record on direct appeal, and which was considered by the Supreme Court when ruling on a motion filed pursuant to Neb. Ct. R. of Prac. 3B (rev. 1986), is not subject to relitigation in an action brought pursuant to the Nebraska Postconviction Act. State v. Bean, 224 Neb. 278, 398 N.W.2d 104 (1986).
Only errors which would make a conviction void or voidable under either the state or federal constitutions are cognizable in a post conviction relief action. Therefore, defendant could raise neither prejudice from remarks by a prosecution witness nor the sufficiency of evidence offered to establish his identity at the habitual criminal hearing on post conviction review. Nor could he challenge the voluntariness of a guilty plea which led to one of the prior convictions offered at the habitual criminal hearing where he failed to challenge it at the trial level. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).
Post conviction procedure may not be used to secure review for defendant dissatisfied with his sentence, and after one motion has been determined, later motion upon grounds available at time of earlier motion may be dismissed. State v. Niemann, 195 Neb. 675, 240 N.W.2d 38 (1976).
The Post Conviction Act extends relief to persons in custody only. State v. Moore, 190 Neb. 271, 207 N.W.2d 518 (1973).
One may not pursue post conviction remedy while he has direct appeal pending. State v. Moore, 187 Neb. 507, 192 N.W.2d 157 (1971).
Motion for hearing under Post Conviction Act is not a substitute for an appeal. State v. Riley, 183 Neb. 616, 163 N.W.2d 104 (1968); State v. Erving, 180 Neb. 680, 144 N.W.2d 424 (1966).
Post Conviction Act cannot be used for the purpose of securing a new trial on the grounds of newly discovered evidence. State v. Dabney, 183 Neb. 316, 160 N.W.2d 163 (1968).
Remedy to determine rights of defendant relative to filing notice of appeal after statutory time had expired may be determined under Post Conviction Act. State v. Blunt, 182 Neb. 477, 155 N.W.2d 443 (1968).
Post Conviction Act provides procedure for review of rights of defendant in criminal case. State v. Livingston, 182 Neb. 257, 153 N.W.2d 925 (1967).
Unless a miscarriage of justice is shown, post conviction remedy is not available for consideration of matters that were determined by the court. State v. Sheldon, 181 Neb. 360, 148 N.W.2d 301 (1967).
In the absence of a showing of a real miscarriage of justice, Post Conviction Act cannot be used to relitigate the question of whether a confession was voluntary when the same question was the subject of and decided in a former appeal to the Supreme Court. State v. Parker, 180 Neb. 707, 144 N.W.2d 525 (1966).
Post Conviction Act was intended to provide relief in those cases where a miscarriage of justice may have occurred. State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966).
The power to grant a new direct appeal is implicit in this section, and the district court has jurisdiction to exercise such a power where the evidence establishes a denial or infringement of the right to effective assistance of counsel at the direct appeal stage of the criminal proceedings. State v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730 (2007).
For postconviction relief to be granted under the Nebraska Postconviction Act, the claimed infringement must be constitutional in dimension. State v. Taylor, 14 Neb. App. 849, 716 N.W.2d 771 (2006).
A 15-year suspension of a driver's license is insufficient to satisfy the "in custody" requirement for postconviction relief under this section. State v. Miller, 6 Neb. App. 363, 574 N.W.2d 519 (1998).
Intent of Post Conviction Act is not to provide a procedural quagmire to individual who attempts to point out constitutional infirmities. Barry v. Sigler, 373 F.2d 835 (8th Cir. 1967).
Post conviction review of sentence imposed by state court, claimed to be in violation of federal or state Constitution, is provided. Dabney v. Sigler, 345 F.2d 710 (8th Cir. 1965).
2. Basis for relief
After a criminal case is closed, there may be ethical duties that require prosecutors to take action upon learning of evidence that creates a reasonable likelihood the defendant did not commit the crime. But Nebraska's postconviction statutes provide relief only for constitutional violations that render a conviction void or voidable. The prosecution's disclosure duties under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), do not apply after a defendant has been convicted in a fair trial and the presumption of innocence no longer applies. State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).
Whether a factual circumstance exists whereby the judgment is void or voidable under the state or U.S. Constitution is an element of a claim for postconviction relief, not a jurisdictional prerequisite. State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).
In a postconviction proceeding, an appellate court reviews for an abuse of discretion the procedures a district court uses to determine whether the prisoner's allegations sufficiently establish a basis for relief and whether the files and records of the case affirmatively show that the prisoner is entitled to no relief. State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
When the alleged ineffective assistance of counsel is a failure to timely appeal from a final pretrial order, the critical issue is whether a timely appeal would have resulted in a reversal and prevented a subsequent trial and conviction. State v. Meers, 267 Neb. 27, 671 N.W.2d 234 (2003).
When the defendant has entered a guilty plea, counsel's deficient performance constitutes prejudice if there is a reasonable probability that, but for counsel's errors, the defendant would have insisted on going to trial rather than pleading guilty. A defendant seeking postconviction relief based on ineffective assistance of counsel must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defendant's case. State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993).
A prisoner cannot claim constitutionally ineffective assistance of counsel as a result of an attorney's service in a postconviction proceeding. State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993).
In a proceeding under the Nebraska Postconviction Act, the movant, in custody under sentence, must allege facts which, if proved, constitute a denial or violation of the movant's rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991); State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988).
To establish a violation of the sixth amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. State v. Schneckloth, 235 Neb. 853, 458 N.W.2d 185 (1990).
In a proceeding under the Postconviction Act, the applicant is required to allege facts which, if proved, constitute a violation or infringement of rights, and the pleading of mere conclusions of fact or law is not sufficient to require the court to grant an evidentiary hearing. State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989).
In a post conviction proceeding, petitioner has the burden of establishing a basis for relief. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Rapp, 186 Neb. 785, 186 N.W.2d 482 (1971); State v. Coffen, 184 Neb. 254, 166 N.W.2d 593 (1969); State v. Raue, 182 Neb. 735, 157 N.W.2d 380 (1968).
In an appeal involving a proceeding for postconviction relief, the lower court's findings will be upheld unless clearly erroneous. When the defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. The defendant must make a showing of how he was prejudiced in the defense of his case as a result of his attorney's actions or inactions and that, but for the ineffective assistance of counsel, there is a reasonable probability that the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Rubek, 225 Neb. 477, 406 N.W.2d 130 (1987).
To establish a right to statutory postconviction relief on the basis of ineffective counsel, the defendant must prove that counsel failed to perform at least as well as a lawyer of ordinary training and skill in the criminal law or that he failed to conscientiously protect his client's interest. State v. Anderson, 216 Neb. 521, 344 N.W.2d 473 (1984).
One seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the district court will not be disturbed on appeal unless they are clearly erroneous. State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); Marteney v. State, 210 Neb. 172, 313 N.W.2d 449 (1981).
For relief on ground of ineffective counsel the petitioner has the burden of establishing a basis for relief. The district court is the trier of disputed questions of fact, and it is not ordinarily for the Supreme Court to determine questions of credibility. State v. Tiff, 212 Neb. 565, 324 N.W.2d 393 (1982).
A claim of error on the ground of ineffective assistance of counsel is unsupported if counsel performs as well as a lawyer with ordinary training and skill in the criminal law in his area and conscientiously protects the interests of his client. Marteney v. State, 210 Neb. 172, 313 N.W.2d 449 (1981).
When one seeks post conviction relief based on a claim that his counsel was inadequate, one must likewise show how or in what manner the alleged inadequacy prejudiced him; and when one is unable to do so, denial of the requested relief is required. State v. Holloman, 209 Neb. 828, 311 N.W.2d 914 (1981), affirming prior conviction 197 Neb. 139, 248 N.W.2d 15 (1976).
An issue of constitutional dimension does not constitute grounds for post conviction relief unless it also constitutes grounds for setting aside the sentence. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).
Under the facts of this case, defense counsel did not have a conflict of interest that would allow relief under this section. State v. Bishop, Davis, and Yates, 207 Neb. 10, 295 N.W.2d 698 (1980).
Matters relating to sentences imposed with statutory limits are not a basis for post conviction relief. State v. Walker, 197 Neb. 381, 248 N.W.2d 784 (1977); State v. DeLoa, 194 Neb. 270, 231 N.W.2d 357 (1975); State v. Birdwell, 188 Neb. 116, 195 N.W.2d 502 (1972).
Where sole issue was inadequacy of counsel for failure to appeal from conviction, and prisoner did not prove failure was due to negligence of counsel, post conviction relief was properly denied. State v. Halsey, 195 Neb. 432, 238 N.W.2d 249 (1976).
Where defendant filed unbased application for writ of error coram nobis which was considered as petition for post conviction relief, court examined files and records and properly denied relief without a hearing because records showed alleged error had been waived. State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).
Relief hereunder is limited to cases in which there was a denial or infringement of the prisoner's rights such as to render the judgment void or voidable under the Constitution of Nebraska or of the United States. State v. Miles, 194 Neb. 128, 230 N.W.2d 227 (1975); State v. Bullard, 187 Neb. 334, 190 N.W.2d 628 (1971); State v. Carpenter, 186 Neb. 605, 185 N.W.2d 663 (1971).
An illegal search and seizure or arrest issue known to defendant at time of his trial cannot be considered in a post conviction review. State v. Russ, 193 Neb. 308, 226 N.W.2d 775 (1975).
Defendant claimed conviction for rape was void because at time of trial he was incompetent and his counsel was ineffective because he did not request a hearing as to his competency, but after an evidentiary hearing both claims were properly denied. State v. Campbell, 192 Neb. 629, 223 N.W.2d 662 (1974).
One who relies upon advice of counsel and pleads guilty may not collaterally attack the voluntariness of the plea even if motivated by the existence of a coerced confession so long as counsel's advice was within the range of competence demanded of attorneys in criminal cases. State v. Hall, 188 Neb. 130, 195 N.W.2d 201 (1972).
Witness' known conflicting statement before trial and revealed in testimony of another witness is no basis for relief hereunder. State v. Ford, 187 Neb. 353, 190 N.W.2d 787 (1971).
The burden is on defendant to prove his allegation that prosecution used perjured or false testimony in securing his conviction. State v. Huffman, 186 Neb. 809, 186 N.W.2d 715 (1971).
Where the facts and issues which are the grounds of a motion for post conviction relief were known to the defendant and his counsel and were raised, heard, and determined at the time of the trial resulting in his conviction, but were not raised in his direct appeal, those issues will not ordinarily be considered in post conviction review. State v. Lincoln, 186 Neb. 783, 186 N.W.2d 490 (1971).
Where a plea of guilty was obviously entered without knowledge that defense of statute of limitation was available, failure to appoint an attorney requested by defendant at sentencing was prejudicial to his rights. State v. Journey, 186 Neb. 556, 184 N.W.2d 616 (1971).
A claim of error on the ground of ineffective assistance of counsel must be supported by a record showing that counsel assistance was so grossly inept as to jeopardize that rights of the defendant and shock the court by its inadequacy. State v. Oziah, 186 Neb. 541, 184 N.W.2d 725 (1971).
Defendant's constitutional rights not violated by in-court identification made on a basis independent of an unlawful lineup. State v. Oziah, 186 Neb. 541, 184 N.W.2d 725 (1971).
In a post conviction action after a plea of guilty if the record of an in-court examination of defendant shows that his plea was voluntary and that he was fairly advised by effective counsel, a contention that his plea was coerced and his counsel ineffective will not be entertained. State v. Sargent, 186 Neb. 155, 181 N.W.2d 449 (1970).
Voluntary guilty plea intelligently made in light of then applicable law does not become vulnerable because later judicial decisions indicate that plea rested on faulty premise. State v. Alvarez, 185 Neb. 557, 177 N.W.2d 591 (1970).
For relief hereunder on ground of ineffective counsel, must appear that assistance so grossly inept as to shock conscience of court. State v. Moss, 185 Neb. 536, 177 N.W.2d 284 (1970).
In absence of a violation or infringement of a constitutional right, no relief may be had under this act. State v. Reizenstein, 183 Neb. 376, 160 N.W.2d 208 (1968).
Statements by defendant were voluntarily made and she is not entitled to relief under Post Conviction Act. State v. Fugate, 182 Neb. 325, 154 N.W.2d 514 (1967).
For postconviction relief to be granted under this section, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U. S. or Nebraska Constitution. State v. Davlin, 10 Neb. App. 866, 639 N.W.2d 168 (2002).
Postconviction proceedings can be brought in Nebraska only if the defendant has been deprived of a constitutional right. The right of a prisoner to be tried within 120 days of being brought into the state under section 29-759, Article IV(c) of the Agreement on Detainers, is a statutory right and not a constitutional right; therefore, the defendant cannot maintain a postconviction proceeding based upon violation of a right provided under Article IV(c). State v. Harper, 2 Neb. App. 220, 508 N.W.2d 584 (1993).
3. Successive motions
The trial court did not abuse its discretion under the Nebraska Postconviction Act when it required the State to file a written response to the appellant's motion for postconviction relief. State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
A movant's subsequent postconviction claims are barred by his or her failure to raise available claims in a previous postconviction motion, even if the movant acted pro se in the first proceeding. State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007).
An appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion. State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007).
An appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
Even if a movant could not have raised an issue upon which relief is sought until his or her second motion for postconviction relief, he or she is clearly barred from raising the claim in the third motion. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
A defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the time the first motion was filed. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991); State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Ohler, 219 Neb. 840, 366 N.W.2d 771 (1985).
A defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the time the first motion was filed. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Ohler, 219 Neb. 840, 366 N.W.2d 771 (1985).
Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Evans, 224 Neb. 64, 395 N.W.2d 563 (1986); State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971).
The trial court is not required to entertain successive motions under the Post Conviction Act for similar relief from the same prisoner. State v. Huffman, 190 Neb. 319, 207 N.W.2d 696 (1973).
Repetitive applications for post conviction relief may be deemed an abuse of judicial process. State v. Pilgrim, 188 Neb. 213, 196 N.W.2d 162 (1972).
After appeal, defendant cannot secure second review hereunder of identical issues. State v. Franklin, 187 Neb. 363, 190 N.W.2d 780 (1971); State v. Newman, 181 Neb. 588, 150 N.W.2d 113 (1967).
Court not required to consider motion under this section when questions raised were raised and determined in prior evidentiary hearing under this act. State v. Cole, 184 Neb. 864, 173 N.W.2d 39 (1969).
4. Statute of limitations
The 1-year limitation period for filing a verified motion for postconviction relief was not tolled where the petitioner filed a motion for new trial 344 days after the conclusion of his direct appeal. State v. Hill, 310 Neb. 647, 968 N.W.2d 96 (2021).
Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), did not announce a new rule of law and thus cannot trigger the 1-year statute of limitations. State v. Hessler, 305 Neb. 451, 940 N.W.2d 836 (2020).
Pursuant to subsection (4) of this section, a 1-year time period for filing a verified motion for postconviction relief was not triggered by a Supreme Court case which merely applied previously recognized constitutional requirements in sentencing of capital defendants. State v. Mata, 304 Neb. 326, 934 N.W.2d 475 (2019).
Where none of the triggering events applied to extend the time for filing a second motion for postconviction relief, the motion was barred by the 1-year time limit. State v. Edwards, 301 Neb. 579, 919 N.W.2d 530 (2018).
The decision in Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), did not extend the time for filing a postconviction motion, because it did not announce a newly recognized right that has been made applicable retroactively to cases on postconviction collateral review. State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018).
A court looks to the allegations of the verified-postconviction motion and the files and records of the case to determine which of the triggering events applies to the determination of timeliness. State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
The "time for filing a direct appeal" of subdivision (4)(a) of this section does not include time for filing a writ of certiori. If the timeliness of a postconviction motion is challenged, an inmate must raise all applicable arguments in support of timeliness to the district court to preserve them for appellate review. State v. Conn, 300 Neb. 391, 914 N.W.2d 440 (2018).
Applying the postconviction time limits to inmates whose crimes occurred prior to the enactment of the time limits does not result in ex post facto punishment. State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
If, as part of its preliminary review, a trial court finds a postconviction motion affirmatively shows it is time barred, the court is permitted, but not obligated, to sua sponte consider and rule upon the timeliness of the motion. State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
Ineffective assistance of postconviction counsel is not an impediment created by state action, because there is no constitutional right to effective assistance of counsel in a postconviction proceeding. State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
The 1-year statute of limitations for postconviction actions applies to all verified motions for postconviction relief, including successive motions. State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017).
A court decision that announced a new rule but did not recognize a new constitutional claim is not a triggering event under subdivision (4)(d) of this section, nor were later cases applying that court decision. State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016).
The 1-year limitation period under subsection (4) of this section shall run from the date on which the constitutional claim asserted was initially recognized, and not from the filing date of the opinion determining that the recognition the constitutional claim asserted applies retroactively. State v. Goynes, 293 Neb. 288, 876 N.W.2d 912 (2016).
The issuance of a mandate by a Nebraska appellate court is a definitive determination of the "conclusion of a direct appeal," and the "date the judgment of conviction became final," for purposes of subdivision (4)(a) of this section. State v. Huggins, 291 Neb. 443, 866 N.W.2d 80 (2015).
The 1-year period of limitation set forth in subsection (4) of this section is not a jurisdictional requirement and instead is in the nature of a statute of limitations. State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).
When the 1-year period in subsection (4) of this section began to run on August 27, 2011, under subdivision (4)(e) of this section, the period expired on August 27, 2012. State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013).
Under subdivision (4)(a) of this section, the claims raised in an amended motion for postconviction relief which is filed outside the 1-year statute of limitations must be based on the same set of facts as the claims contained in the original motion in order to relate back to the filing of the original motion. State v. Liner, 26 Neb. App. 303, 917 N.W.2d 194 (2018).
5. Evidentiary hearing
Because there was evidence in the record supporting the court's credibility findings regarding the deposition testimony of the alibi witnesses, the court did not err in denying the appellant's request for live witnesses at the evidentiary hearing. State v. Newman, 310 Neb. 463, 966 N.W.2d 860 (2021).
The weight to be accorded to testimony given by deposition, as compared to that given orally in court, must depend, not upon its form, but upon all the circumstances affecting its credibility. State v. Newman, 310 Neb. 463, 966 N.W.2d 860 (2021).
In the absence of allegations that would render the judgment void or voidable, the proper course is to overrule a motion for postconviction relief without an evidentiary hearing for failure to state a claim. State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021).
When a motion for postconviction relief is filed, an evidentiary hearing is not required if (1) the motion does not contain factual allegations of a violation or infringement of the prisoner's constitutional rights, (2) the motion alleges only conclusions of fact or law, or (3) the record affirmatively shows that the prisoner is entitled to no relief. State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021).
In a postconviction proceeding, an evidentiary hearing is not required when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights, rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief. State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021).
A district court need not conduct an evidentiary hearing in postconviction proceedings in the following circumstances: (1) When the prisoner alleges only conclusions of law or facts and (2) when the files and records of the case affirmatively show that the prisoner is entitled to no relief. State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
The trial court erred in denying a postconviction petition without an evidentiary hearing based on the trial counsel's deposition, because the deposition was not part of the case records and files; the phrase "files and records of the case" in this section refers to existing files and records of the case before the prisoner filed a postconviction proceeding, not to testimony taken for the postconviction proceeding. State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
If the district court grants an evidentiary hearing in a postconviction proceeding, it is obligated to determine the issues and make findings of fact and conclusions of law with respect thereto. State v. Epting, 276 Neb. 37, 751 N.W.2d 166 (2008).
If the court grants an evidentiary hearing in a postconviction proceeding, it is obligated to determine the issues and make findings of fact and conclusions of law with respect thereto. State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).
It is reversible error for a district court to grant postconviction relief without first conducting an evidentiary hearing and making findings of fact and conclusions of law. State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).
Under this section, the district court has discretion to adopt reasonable procedures for determining what the motion and the files and records show, and whether any substantial issues are raised, before granting a full evidentiary hearing. This section allows for the denial of an evidentiary hearing if the court determines from the files and records of the case that the prisoner is not entitled to relief. It is not unusual for a court to hold a hearing to determine which files and records the court may review prior to considering the State's motion to deny a prisoner an evidentiary hearing. State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
The district court need not conduct an evidentiary hearing on a motion for postconviction relief when the motion alleges only conclusions of fact or law or when the files and records affirmatively show that the criminal defendant is not entitled to any relief. State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000).
In an evidentiary hearing at a bench trial for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995).
An evidentiary hearing may properly be denied on a motion for postconviction relief when the records and files in the case affirmatively establish that the defendant is entitled to no relief. State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993); State v. Threet, 231 Neb. 809, 438 N.W.2d 746 (1989); State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Sowell, 227 Neb. 865, 420 N.W.2d 704 (1988); State v. Schaeffer, 218 Neb. 786, 359 N.W.2d 106 (1984); State v. Williams, 218 Neb. 618, 358 N.W.2d 195 (1984); State v. Meredith, 212 Neb. 109, 321 N.W.2d 456 (1982); State v. Miles, 202 Neb. 126, 274 N.W.2d 153 (1979); State v. Fincher, 189 Neb. 746, 204 N.W.2d 927 (1973); State v. Gero, 186 Neb. 379, 183 N.W.2d 274 (1971); State v. Ronzzo, 181 Neb. 16, 146 N.W.2d 576 (1966).
Although a prisoner could not be prevented from testifying in support of his motion, he had no right to be personally present at an evidentiary hearing on the motion. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).
In an evidentiary hearing, as a bench trial provided by this section for postconviction relief, the trial judge, as the "trier of fact," resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991); State v. Sobieszczyk, 2 Neb. App. 116, 507 N.W.2d 660 (1993).
In an evidentiary hearing as a bench trial, provided by this section for postconviction relief, the trial judge sitting as the trier of fact resolves conflicts in the evidence and questions of fact. State v. Wiley, 232 Neb. 642, 441 N.W.2d 629 (1989).
An evidentiary hearing on a postconviction motion is required upon an appropriate motion containing factual allegations which, if proved, constitute an infringement of a constitutional right. State v. Jackson, 226 Neb. 857, 415 N.W.2d 465 (1987); State v. Malek, 219 Neb. 680, 365 N.W.2d 475 (1985); State v. Williams, 218 Neb. 618, 358 N.W.2d 195 (1984).
The evidentiary hearing provided in this section is a vehicle for a confined defendant to meet his or her burden of proof, and although an evidentiary hearing is not always necessary on an application for postconviction relief, such a hearing is usually advisable to avoid protracted litigation. State v. Rivers, 226 Neb. 353, 411 N.W.2d 350 (1987).
Defendant was not entitled to an evidentiary hearing to determine whether his plea was made knowingly, intelligently, and voluntarily, nor was he entitled to postconviction relief on grounds that he was denied effective assistance of counsel because of counsel's failure to raise the issue of the defendant's mental competency. State v. Bradford, 223 Neb. 908, 395 N.W.2d 495 (1986).
Conclusory allegations will not support a motion for postconviction relief, nor do they require the court to grant an evidentiary hearing. State v. Galvan, 222 Neb. 104, 382 N.W.2d 337 (1986).
Evidentiary hearing may be denied if the trial court finds, on examination of its files and records, that proceeding under this section is without foundation. State v. Nokes, 209 Neb. 293, 307 N.W.2d 521 (1981).
Where case records are silent on questions of possible constitutional rights violations, district court must grant evidentiary hearing. State v. Svoboda, 199 Neb. 452, 259 N.W.2d 609 (1977).
Unless the motion, files, and records of the case show petitioner is not entitled to relief, the court shall grant a prompt evidentiary hearing. State v. Virgilito, 187 Neb. 328, 190 N.W.2d 781 (1971).
Proceeding under this section cannot be used as substitute for appeal or to secure further review of issues already litigated; court authorized to examine files and records and determine issue without evidentiary hearing. State v. LaPlante, 185 Neb. 816, 179 N.W.2d 110 (1970).
Court specifically entitled to examine files and records and if such shows person entitled to no relief motion to vacate sentence may be overruled without hearing. State v. Pilgrim, 184 Neb. 457, 168 N.W.2d 368 (1969).
Evidentiary hearing may properly be denied if trial court finds on examination of its files and records that the proceeding is without foundation. State v. Nicholson, 183 Neb. 834, 164 N.W.2d 652 (1969).
A hearing is not required when motions, pleadings, and briefs do not indicate any facts whatever which would entitle prisoner to relief. State v. Duncan, 182 Neb. 598, 156 N.W.2d 165 (1968).
Trial court has discretion to adopt reasonable procedures to determine sufficiency of evidence before granting evidentiary hearing. State v. Fowler, 182 Neb. 333, 154 N.W.2d 766 (1967).
Post Conviction Act authorizes the trial court to examine the files and records to determine propriety of evidentiary hearing. State v. Carreau, 182 Neb. 295, 154 N.W.2d 215 (1967).
Post Conviction Act specifically authorizes trial court to examine files and records to see if prisoner may be entitled to relief. State v. Hizel, 181 Neb. 680, 150 N.W.2d 217 (1967).
In postconviction proceedings where a defendant alleges that his or her plea was induced by some promise, the court must hold an evidentiary hearing on the issue unless the record conclusively shows that the plea was not induced by any promises, except those included in the plea bargain. State v. Jefferson, 5 Neb. App. 646, 562 N.W.2d 77 (1997).
6. Procedure
The State is not required to provide a response to a motion before the court makes a ruling that the motion and the files and records of a case show that the prisoner is entitled to no relief. State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
The procedures a district court uses in evaluating a postconviction action are reviewed for an abuse of discretion. But the district court's discretion must comport with the specific procedural rules mandated by this section. State v. Newman, 310 Neb. 463, 966 N.W.2d 860 (2021).
The conclusion of a direct appeal occurs when a Nebraska appellate court issues the mandate in the direct appeal. State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019).
Civil pleading rules do not apply to postconviction proceedings. State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
A trial court abuses its discretion in postconviction proceedings when its decision incorrectly applies or fails to comply with specific procedural rules governing the action. State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
The trial court did not err in declining to appoint the appellant counsel for the purpose of conducting further discovery on a postconviction motion, because under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether counsel shall be appointed. State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
A defendant's failure to diligently prosecute an appeal from a denial of a prior motion for postconviction relief results in a procedural default that bars later action on the claim. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
A defendant obtaining postconviction relief of a new direct appeal must properly appeal from his or her original conviction and sentence based on the grant of such postconviction relief. The 30-day limit within which the defendant must file his or her new direct appeal commences on the day that such postconviction relief is granted in the district court. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).
If a defendant is denied his right to appeal because of counsel's failure to timely file notice of appeal, the proper means to attach such denial is a motion for postconviction relief and not a motion for writ of error coram nobis. State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993).
If a defendant is denied his or her right to appeal because his or her lawyer fails, when requested, to timely file a notice of appeal, the proper means to attack that denial is by a postconviction relief action. State v. Carter, 236 Neb. 656, 463 N.W.2d 332 (1990).
Any matter which can be determined from the record on direct appeal is considered by the Supreme Court when granting relief pursuant to Neb. Ct. R. of Prac. 3B (rev. 1986), and is not available for further relief pursuant to the Nebraska Postconviction Act. State v. Wilson, 224 Neb. 721, 400 N.W.2d 869 (1987).
In postconviction proceedings under this section, the district court is the trier of disputed questions of fact and it is not ordinarily for the Supreme Court to determine questions of credibility. State v. Terrell, 220 Neb. 137, 368 N.W.2d 499 (1985); State v. Davis, 203 Neb. 284, 278 N.W.2d 351 (1979).
The Supreme Court will not consider a question, as an assignment of error, not presented to the district court for disposition through a defendant's motion for postconviction relief. State v. Casper, 219 Neb. 641, 365 N.W.2d 451 (1985).
A defendant in a postconviction proceeding may not raise questions which could have been raised on direct appeal unless the questions are such that they would make the judgment of conviction void or voidable under the state or federal Constitution. State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); State v. Paulson, 211 Neb. 711, 320 N.W.2d 115 (1982); State v. Huffman, 186 Neb. 809, 186 N.W.2d 715 (1971).
A motion for postconviction relief must allege facts which, if proved, constitute an infringement of the prisoner's constitutional rights. State v. Robinson, 215 Neb. 449, 339 N.W.2d 76 (1983); State v. Fitzgerald, 182 Neb. 823, 157 N.W.2d 415 (1968); State v. Warner, 181 Neb. 538, 149 N.W.2d 438 (1967).
In an action for post conviction relief, the trial judge is not automatically disqualified from presiding at the post conviction proceedings. The petitioner bears the burden of establishing bias and prejudice. State v. Herren, 212 Neb. 706, 325 N.W.2d 151 (1982).
Trial court did not err in requiring that defendant's testimony at hearing under this section be presented by deposition. State v. Otey, 212 Neb. 103, 321 N.W.2d 453 (1982).
This section of the Nebraska Post Conviction Act requires that a motion to vacate a verdict be verified. State v. Ditter, 209 Neb. 452, 308 N.W.2d 350 (1981).
Any constitutional infirmity in the judgment and conviction in proceedings had with respect to trial and sentencing may be appropriately raised under this statute, but not in a motion for an order nunc pro tunc. State v. Al-Hafeez, 208 Neb. 681, 305 N.W.2d 379 (1981).
The ordering of a new trial by the trial court is an appropriate discretionary method of granting post-conviction relief under this section. Addison v. Parratt, 208 Neb. 459, 303 N.W.2d 785 (1981).
Defendant in a post conviction proceeding may not raise questions which could have been raised on direct appeal, which do not involve questions making the judgment of conviction void or voidable under the state or federal constitutions, or which concern sentences imposed within statutory limits. State v. Shepard, 208 Neb. 188, 302 N.W.2d 703 (1981).
The validity of a prior conviction offered to enhance punishment must be challenged at the habitual criminal hearing and failure to challenge it at that time waives the issue. Thus, the prior conviction may not be attacked in a petition under the Post Conviction Act. State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980).
A motion to vacate a judgment and sentence under this act cannot be used to secure a further review of issues already litigated. State v. Lacy, 198 Neb. 567, 254 N.W.2d 83 (1977).
Where denial or infringement of right to counsel occurred at appeal stage of former criminal proceedings, the district court may grant a new direct appeal without granting a new trial or setting aside original sentence. State v. Blunt, 197 Neb. 82, 246 N.W.2d 727 (1976).
Assignments of error on grounds available in the district court must first have been presented to that court. State v. Taylor, 193 Neb. 388, 227 N.W.2d 26 (1975).
In absence of a violation or infringement of a constitutional right, no relief may be had hereunder. State v. Whited, 187 Neb. 592, 193 N.W.2d 268 (1971).
In a post conviction proceeding, the petitioner has the burden of proof. State v. Hatten, 187 Neb. 237, 188 N.W.2d 846 (1971); State v. Sagaser, 181 Neb. 329, 148 N.W.2d 206 (1967).
Standards established by Miranda v. Arizona, 384 U.S. 436, do not have retroactive application and an attorney is not to be deemed ineffective to the point of impairment of constitutional rights of client by viewing his advice retrospectively. A defendant may waive a constitutional right provided he has done so knowingly and voluntarily; the burden of proof in a post conviction hearing is on the petitioner. State v. Hatten, 187 Neb. 237, 188 N.W.2d 846 (1971).
An indigent defendant has a right to appeal at public expense, but he has the burden of alleging and establishing a basis for relief. When he seeks to appeal the original proceedings and fails to show that he is acting in good faith and that his appeal is not merely frivolous, he has not met his burden. State v. Myles, 187 Neb. 105, 187 N.W.2d 584 (1971).
No requirement that allegations be in technical form nor that grammar be more than substantially understandable, but allegations must set forth facts. Harris v. Sigler, 185 Neb. 483, 176 N.W.2d 733 (1970).
Motion for hearing under Post Conviction Act is not a substitute for an appeal. State v. Riley, 183 Neb. 616, 163 N.W.2d 104 (1968).
Statements by defendant were voluntarily made and she is not entitled to relief under Post Conviction Act. State v. Fugate, 182 Neb. 325, 154 N.W.2d 514 (1967).
A plea of guilty, if understandingly and voluntarily made, is conclusive. State v. Decker, 181 Neb. 859, 152 N.W.2d 5 (1967).
Failure to appoint counsel for indigent upon appeal justified filing of appeal out of time. State v. Williams, 181 Neb. 692, 150 N.W.2d 260 (1967).
Failure to appoint counsel for defendant at preliminary hearing was not a denial of procedural due process of law. State v. Konvalin, 181 Neb. 554, 149 N.W.2d 755 (1967).
Where a single question of law is involved, and is groundless, counsel need not be appointed on appeal. State v. Craig, 181 Neb. 8, 146 N.W.2d 744 (1966).
A defendant is not entitled to the presence of his counsel during a psychiatric examination. State v. Snyder, 180 Neb. 787, 146 N.W.2d 67 (1966).
Under Post Conviction Act, sentencing court has discretion to adopt reasonable procedure for determining questions presented. State v. Silvacarvalho, 180 Neb. 755, 145 N.W.2d 447 (1966).
District court may adopt reasonable procedures for carrying out provisions of Post Conviction Act. State v. Fugate, 180 Neb. 701, 144 N.W.2d 412 (1966).
A defendant may challenge a second conviction and sentence which he has not yet started to serve. State v. Losieau, 180 Neb. 696, 144 N.W.2d 435 (1966).
Where a motion is made to set aside or correct a sentence, movant must set forth facts and not merely conclusions. State v. Losieau, 180 Neb. 671, 144 N.W.2d 406 (1966).
At hearing under Post Conviction Act, personal presence of a petitioning prisoner is not always required. State v. Woods, 180 Neb. 282, 142 N.W.2d 339 (1966).
A prisoner's motion for postconviction relief contained his signature, the date, a notary's signature, and a notary stamp, in two places: once following the concluding paragraph of the motion and again following the certificate of service. In the second signature section, it stated: "SUBSCRIBE [sic] AND SWORN TO BEFORE ME THIS 16th DAY OF JULY, 2020." This was followed by the words "NOTARY PUBLIC," which were then followed by the notary's signature and stamp. The first signature section, which contained only the prisoner's signature, the date, and the notary's signature and stamp, served only as an acknowledgment, rather than a verification. However, the language contained in the second signature section at the end of the prisoner's motion for postconviction relief was a sufficient verification. State v. Rush, 31 Neb. App. 1, 975 N.W.2d 541 (2022).
The files and records reviewed by the district court in making its determination regarding a motion for postconviction relief must accompany the transcript, and the transcript must contain a certificate by the district judge identifying the files and records as those which were considered when the case is appealed. State v. Caton, 2 Neb. App. 908, 518 N.W.2d 160 (1994).
Where state prisoner had petitioned for habeas corpus in forum of his custody but not for post conviction relief in forum of his sentence he had not exhausted state remedies. Robinson v. Wolff, 468 F.2d 438 (8th Cir. 1972), affirming 349 F.Supp. 514 (D. Neb. 1972).
The Nebraska Post Conviction Act provides an adequate post conviction remedy to raise contention of illegal incarceration and state prisoner who had not presented his allegations to Nebraska court was not entitled to federal habeas corpus relief. Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971).
Since petitioner had litigated issues on direct appeal, it was not necessary for proceedings to be maintained under this procedure as a prerequisite to federal habeas corpus proceedings. Kennedy v. Sigler, 397 F.2d 556 (8th Cir. 1968).
Intent of Post Conviction Act is not to provide a procedural quagmire to individual who attempts to point out constitutional infirmities. Barry v. Sigler, 373 F.2d 835 (8th Cir. 1967).
An adequate state remedy is provided which prisoner in custody must exhaust before seeking federal habeas corpus. Ellenson v. Fugate, 346 F.2d 151 (8th Cir. 1965); Burnside v. State, 346 F.2d 88 (8th Cir. 1965).
Where Nebraska Supreme Court had already ruled directly on issues before federal habeas corpus court they could not be relitigated under Post Conviction Act and petitioner had exhausted his state court remedies. Collins v. Wolff, 337 F.Supp. 114 (D. Neb. 1962).
Indigent state prisoner has no right to demand free transcript or other papers for purpose of searching for possible constitutional defects in proceedings, and to get same for purpose of collateral attack must first allege facts which show he had been deprived of a constitutional right which post conviction remedy was designed to protect. Harris v. State, 320 F.Supp. 100 (D. Neb. 1970).
7. Miscellaneous
A motion for postconviction relief is not a substitute for an appeal. State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002).
When the material element of malice is omitted from the second degree murder jury instruction, a defendant's conviction for second degree murder is constitutionally invalid, and postconviction relief is proper to rectify a constitutionally invalid conviction. State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995).
Having granted a defendant a postconviction hearing, a court is obligated to determine the issues and make findings of fact and conclusions of law. State v. Costanzo, 235 Neb. 126, 454 N.W.2d 283 (1990).
Proceedings under the Postconviction Act are civil in nature. State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 (1989).
The finding of the postconviction hearing court will not be disturbed unless clearly erroneous. State v. Luna, 230 Neb. 966, 434 N.W.2d 526 (1989); State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983).
Retroactive operation of decision overruling prior interpretation of habitual criminal statute decision is not required by constitutional provisions. State v. Pierce, 216 Neb. 792, 345 N.W.2d 835 (1984).
A voluntary guilty plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional. State v. Falcone, 212 Neb. 720, 325 N.W.2d 160 (1982); State v. Stranghoener, 212 Neb. 203, 322 N.W.2d 407 (1982).
The lack of knowledge which may invalidate a guilty plea concerns knowledge of the charge and the consequences of the plea, and not the defendant's knowledge of whether the state can succeed at trial. State v. Falcone, 212 Neb. 720, 325 N.W.2d 160 (1982).
Where defendant was unable to show that insanity defense existed and the record disclosed that the defendant's trial counsel made reasonable efforts to obtain such evidence, but that none existed, defendant was not entitled to post conviction relief. State v. Landers, 212 Neb. 48, 321 N.W.2d 418 (1982).
A juvenile's conviction in district court need not be set aside in postconviction proceedings where a hearing was held to determine whether the defendant should have been transferred to juvenile jurisdiction and the court, based on sufficient evidence, found that the transfer was not required. State v. Tweedy, 202 Neb. 824, 277 N.W.2d 254 (1979).
Imposition of consecutive sentences for convictions on multiple charges involving a single incident held not violation of Fifth Amendment. State v. Hardin, 199 Neb. 314, 258 N.W.2d 245 (1977).
When a defendant waives his state court remedies and admits his guilt, he does so under the law then existing and he assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts. State v. Bevins, 187 Neb. 785, 194 N.W.2d 181 (1972).
Granting of right to direct appeal two years after time of sentencing on the overruling of the motion for new trial in the original case was improper under the circumstances of the case. State v. Wycoff, 183 Neb. 373, 160 N.W.2d 221 (1968).
Trial court, after evidentiary hearing, determined that constitutional rights of defendant were not violated. State v. Howard, 182 Neb. 411, 155 N.W.2d 339 (1967).
Defendant was denied relief under section where sentence imposed was proper. State v. Burnside, 181 Neb. 20, 146 N.W.2d 754 (1966).
Denial of relief under Post Conviction Act was proper. State v. Brevet, 180 Neb. 616, 144 N.W.2d 210 (1966).
The rule that when counsel is court appointed, the defendant does not have a constitutional right to counsel of his or her choice, is equally applicable when counsel is appointed in postconviction proceedings. State v. Davis, 23 Neb. App. 536, 875 N.W.2d 450 (2016).
State remedies found to have been sufficiently exhausted notwithstanding the fact that no proceedings were had under this act. Davis v. Sigler, 415 F.2d 1159 (8th Cir. 1969).
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.
Annotations
An order overruling a motion for postconviction relief as to a claim is a "final judgment" as to such claim. State
v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018).
An order ruling on a motion filed in a pending postconviction case, seeking to amend the postconviction motion
to assert additional claims, is not a final judgment and is not appealable. State v. Lotter, 301 Neb. 125, 917 N.W.2d
850 (2018).
An order denying an evidentiary hearing on a postconviction claim is a final judgment as to such claim under this section. State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009).
An order ruling on a motion filed in a pending postconviction case seeking to amend the postconviction motion to assert additional claims is not a final judgment and is not appealable under this section. State v. Hudson, 273 Neb. 42, 727 N.W.2d 219 (2007).
Appeal cannot be taken directly to Supreme Court from municipal court in post conviction proceeding. State v. Williams, 188 Neb. 802, 199 N.W.2d 611 (1972).
State may appeal under this section although error proceedings under section 29-2315.01 are pending. State v. Carpenter, 186 Neb. 605, 185 N.W.2d 663 (1971).
Appointment of counsel to appeal from denial of post conviction relief is properly refused when record and files show prisoner is entitled to no relief. State v. Gero, 186 Neb. 379, 183 N.W.2d 274 (1971).
Failure to appeal decision within one month prevented Supreme Court from obtaining jurisdiction. State v. Pauley, 185 Neb. 478, 176 N.W.2d 687 (1970).
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
When presented with a motion for postconviction relief that exists simultaneously with a motion seeking relief under another remedy, a court must dismiss the postconviction motion without prejudice when the allegations, if true, would constitute grounds for relief under the other remedy sought; the question is not whether the petitioner believes he or she is entitled to the other remedy. State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015).
The phrase "any other remedy" encompasses a direct appeal when the issue raised in the postconviction proceeding can be raised in the direct appeal. Thus, a motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal or which were known to the defendant and counsel at the time of the trial and which were capable of being raised, but were not raised, in the defendant's direct appeal. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
Post conviction remedy is cumulative. State v. Williams, 181 Neb. 692, 150 N.W.2d 260 (1967).
Remedy under Post Conviction Act is cumulative and is not intended to be concurrent and with any other remedy. State v. Dabney, 181 Neb. 263, 147 N.W.2d 768 (1967); State v. Carr, 181 Neb. 251, 147 N.W.2d 619 (1967).
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
1. General
2. Payment of expenses
3. Particular cases
4. Miscellaneous
1. General
Any right to effective assistance of counsel under this section is statutory only and cannot render a prisoner's conviction void or voidable under the U.S. or Nebraska Constitution. State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).
This section does not provide a postconviction claim for ineffective assistance of postconviction counsel. State v. Hunt, 262 Neb. 648, 634 N.W.2d 475 (2001).
Neither the Eighth Amendment nor the Due Process Clause of the federal Constitution requires states to appoint counsel for indigent death row inmates seeking state postconviction relief. State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993).
This section does not require the appointment of counsel in all cases. State v. Craig, 181 Neb. 8, 146 N.W.2d 744 (1966).
The rule that when counsel is court appointed, the defendant does not have a constitutional right to counsel of his or her choice, is equally applicable when counsel is appointed in postconviction proceedings. State v. Davis, 23 Neb. App. 536, 875 N.W.2d 450 (2016).
2. Payment of expenses
Although appointment of counsel in postconviction cases is discretionary, this section provides that once counsel has been appointed and appointed counsel has made application to the court, the court "shall" fix reasonable expenses and fees. State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).
Court-appointed counsel in a postconviction proceeding may appeal to the appellate courts from an order determining expenses and fees allowed under this section. Such an appeal is a proceeding separate from the underlying postconviction proceeding. State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).
To determine reasonable expenses and fees under this section, a court must consider several factors: the nature of the litigation, the time and labor required, the novelty and difficulty of the questions raised, the skill required to properly conduct the case, the responsibility assumed, the care and diligence exhibited, the result of the suit, the character and standing of the attorney, and the customary charges of the bar for similar services. State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).
3. Particular cases
District court abused its discretion in failing to appoint counsel, where postconviction record showed a justiciable issue of law or fact was presented by the indigent defendant. State v. Wiley, 228 Neb. 608, 423 N.W.2d 477 (1988).
Trial court acted within its discretion in refusal to appoint other counsel after public defender had completed appeal subsequent to his request to withdraw from case. State v. Jackson, 182 Neb. 472, 155 N.W.2d 361 (1968).
Trial court did not err in failure to appoint defense counsel on appeal to Supreme Court. State v. Williams, 182 Neb. 444, 155 N.W.2d 377 (1967).
4. Miscellaneous
It is within the discretion of the district court to determine whether legal counsel shall be appointed to represent a defendant on appeal to this court, and, in the absence of a showing of an abuse of discretion, the failure to appoint counsel is not error. State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993); State v. Paulson, 211 Neb. 711, 320 N.W.2d 115 (1982).
It is discretionary with district court as to whether or not counsel shall be appointed to represent accused on appeal. State v. Hizel, 181 Neb. 680, 150 N.W.2d 217 (1967); State v. Burnside, 181 Neb. 20, 146 N.W.2d 754 (1966).
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.
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.
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.
Annotations
The identifying physical characteristics statutes require a showing of probable cause to believe the person seized has engaged in an articulable criminal offense before the judicial officer can issue an order to produce identifying physical characteristics. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
When determining whether an order to produce identifying physical characteristics was based on a showing of probable cause, a court considers the totality of the circumstances. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
Sections 29-3301 to 29-3307 do not violate privilege against self-incrimination, are constitutional, and apply to physical evidence, not to oral communications or testimony. State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976).
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
The identifying physical characteristics statutes require a showing of probable cause to believe the person seized has engaged in an articulable criminal offense before the judicial officer can issue an order to produce identifying physical characteristics. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
When determining whether an order to produce identifying physical characteristics was based on a showing of probable cause, a court considers the totality of the circumstances. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
Sections 29-3301 to 29-3307 do not violate privilege against self-incrimination, are constitutional, and apply to physical evidence, not to oral communications or testimony. State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976).
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.
Annotations
The identifying physical characteristics statutes require a showing of probable cause to believe the person seized has engaged in an articulable criminal offense before the judicial officer can issue an order to produce identifying physical characteristics. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
When determining whether an order to produce identifying physical characteristics was based on a showing of probable cause, a court considers the totality of the circumstances. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
The provisions of this section require a showing that there is both probable cause to believe that a crime has been committed and probable cause to believe the person being compelled to submit to nontestimonial identification procedures committed that crime. State v. Evans, 215 Neb. 433, 338 N.W.2d 788 (1983).
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.
Annotations
Under this section, law enforcement personnel must have probable cause to believe that the person whose DNA is sought committed the crime for which the DNA is sought. State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
The identifying physical characteristics statutes require a showing of probable cause to believe the person seized has engaged in an articulable criminal offense before the judicial officer can issue an order to produce identifying physical characteristics. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
When determining whether an order to produce identifying physical characteristics was based on a showing of probable cause, a court considers the totality of the circumstances. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
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.
Annotations
The identifying physical characteristics statutes require a showing of probable cause to believe the person seized has engaged in an articulable criminal offense before the judicial officer can issue an order to produce identifying physical characteristics. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
When determining whether an order to produce identifying physical characteristics was based on a showing of probable cause, a court considers the totality of the circumstances. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
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.
Annotations
The identifying physical characteristics statutes require a showing of probable cause to believe the person seized has engaged in an articulable criminal offense before the judicial officer can issue an order to produce identifying physical characteristics. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
When determining whether an order to produce identifying physical characteristics was based on a showing of probable cause, a court considers the totality of the circumstances. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
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.
Annotations
The identifying physical characteristics statutes require a showing of probable cause to believe the person seized has engaged in an articulable criminal offense before the judicial officer can issue an order to produce identifying physical characteristics. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
When determining whether an order to produce identifying physical characteristics was based on a showing of probable cause, a court considers the totality of the circumstances. State v. Marcus, 265 Neb. 910, 660 N.W.2d 837 (2003).
Sections 29-3301 to 29-3307 do not violate privilege against self-incrimination, are constitutional, and apply to physical evidence, not to oral communications or testimony. State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976).
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.
Annotations
A prisoner who was transferred to Nebraska pursuant to the Interstate Corrections Compact is subject to the jurisdiction of the sending state. Leach v. Dahm, 277 Neb. 452, 763 N.W.2d 83 (2009).
Pursuant to the Interstate Corrections Compact, the receiving state acts solely as an agent for the sending state. Leach v. Dahm, 277 Neb. 452, 763 N.W.2d 83 (2009).
Where a prisoner is sentenced in Florida and transferred to Nebraska pursuant to the Interstate Corrections Compact, hearings in Nebraska considering whether the sentence was unconstitutional may be held only if authorized by Florida and are governed by the laws of Florida. Leach v. Dahm, 277 Neb. 452, 763 N.W.2d 83 (2009).
A Nebraska parole violator who is serving an Iowa sentence imposed for a subsequent offense does not recommence serving his Nebraska sentence until he has been released from custody by Iowa and arrested for the custody of the Nebraska Board of Parole. Falkner v. Neb. Board of Parole, 213 Neb. 474, 330 N.W.2d 141 (1983).
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.
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.
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.
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.
29-3505.
Commission, defined.Commission shall mean the Nebraska Commission on Law Enforcement and Criminal Justice.
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.
Cross References
Nebraska Claims for Wrongful Conviction and Imprisonment Act, see section 29-4601.
Annotations
This section has no application to presentence reports and does not restrict the use of criminal history information in determining an appropriate sentence. State v. Guida, 230 Neb. 961, 434 N.W.2d 522 (1989).
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.
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.
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.
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.
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.
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.
29-3513.
Person, defined.Person shall mean any natural person, corporation, partnership, limited liability company, firm, or association.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
This section does not give rise to a legal duty that would subject a private person to civil tort liability for failing to act in the manner prescribed by it. Doe v. State, 312 Neb. 665, 980 N.W.2d 842 (2022).
A county court's order overruling the defendant's motion to seal records, filed years after her case had been dismissed, was a final, appealable order, because the order ruled on a postjudgment motion and affected a substantial right. The right invoked was the statutory right to remove the record of the defendant's citation from the public record, no mere technical right. State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
An order on a motion seeking to remove the record of a criminal citation from the public record under this section affects a substantial right for purposes of section 25-1902. State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
An order regarding the statutory right to remove criminal record history information from the public record affects a substantial right for purposes of determining whether it is a final, appealable order. State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
Section 29-3528 authorizes an aggrieved individual to bring an action, not to file a motion in the criminal case the record of which he or she seeks to seal pursuant to this section. An "action" is a distinct and separate court proceeding, governed by separate pleadings and requiring separate process. State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
This section does not authorize the filing of a motion to make criminal history record information nonpublic. State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
This section generally protects certain criminal history record information and prohibits, subject to exceptions, the dissemination of this information. State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
A county court lacked jurisdiction over the defendant's motion to seal records in a criminal action filed years after her case had been dismissed. The applicable statute did not authorize filing a motion to make her criminal history record information nonpublic, but, rather, required a person to bring an action for such relief, disapproving State v. Blair, 17 Neb. App. 611, 767 N.W.2d 143 (2009). State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
Under subsection (2)(c) of this section, which requires that the notation of a person's arrest be removed from the record if the charges are later dismissed, the person arrested may file a petition seeking to enforce his or her right to have his or her record expunged. State v. Blair, 17 Neb. App. 611, 767 N.W.2d 143 (2009).
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.
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.
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.
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.
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.
Annotations
This section does not either expressly or by overwhelming implication waive sovereign immunity for actions brought against a state agency seeking compliance with the Criminal History Information Act. State ex rel. Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 N.W.2d 903 (2018).
This section authorizes an aggrieved individual to bring an action, not to file a motion in the criminal case the record of which he or she seeks to seal pursuant to section 29-3523. An "action" is a distinct and separate court proceeding, governed by separate pleadings and requiring separate process. State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
This section provides a procedure for enforcing the privacy protections of the Security, Privacy, and Dissemination of Criminal History Information Act (including section 29-3523). State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
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.
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.
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.
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.
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.
Cross References
Motor Vehicle Safety Responsibility Act, see section 60-569.
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.
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.
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
Motor Vehicle Operator's License Act, see section 60-462.
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.
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.
Annotations
Under subsection (1) of this section, the definition of mentally ill dangerous persons in the Nebraska Mental Health Commitment Act and the statutes governing persons acquitted of a crime on grounds of insanity are constitutional and do not violate equal protection guarantees. Tulloch v. State, 237 Neb. 138, 465 N.W.2d 448 (1991).
Under subsection (6) of this section, an indigent who is acquitted of a crime on grounds of insanity may obtain an independent evaluation upon the individual's motion. Tulloch v. State, 237 Neb. 138, 465 N.W.2d 448 (1991).
In a hearing concerning an evaluation and treatment plan in a commitment proceeding, a report by a doctor did not constitute inadmissible hearsay. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).
The time limits set forth in this section and section 29-3702 are directory, not mandatory, and dismissal of the proceedings is not a proper remedy for a nonprejudicial violation of this section and section 29-3702. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).
The provisions of this section and section 29-3702 which set out the time in which the patient is to be provided a hearing and the report of the hospital is to be provided to the court do not relate to the essence of the statutes but govern the time or manner of performance of the thing to be done and are directory as opposed to mandatory. State v. Steele, 224 Neb. 476, 399 N.W.2d 267 (1987).
The Supreme Court will not interfere on appeal with a final order made by the district court in a mental health commitment proceeding unless the court can say as a matter of law that the order is not supported by clear and convincing proof. State v. Mayfield, 212 Neb. 724, 325 N.W.2d 162 (1982).
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.
Cross References
Applicant for handgun, limited disclosure of commitment records, see section 69-2409.01.
Annotations
In determining whether an act is sufficiently recent to be probative of dangerousness, each case must be decided on the basis of the surrounding facts and circumstances. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).
The time limits set forth in section 29-3701 and this section are directory, not mandatory, and dismissal of the proceedings is not a proper remedy for a nonprejudicial violation of section 29-3701 and this section. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).
The provisions of this section and section 29-3701 which set out the time in which the patient is to be provided a hearing and the report of the hospital is to be provided to the court do not relate to the essence of the statutes but govern the time or manner of performance of the thing to be done and are directory as opposed to mandatory. State v. Steele, 224 Neb. 476, 399 N.W.2d 267 (1987).
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.
Annotations
Under subsections (2) and (3) of this section, following the annual status review of a person committed to treatment in a regional center, the court may either order the person released unconditionally, order the person to remain committed to the regional center, or order the person discharged from the regional center and placed in a less restrictive treatment program. State v. Schinzel, 271 Neb. 281, 710 N.W.2d 634 (2006).
Under this section, a person cannot be placed in the "joint legal custody" of two separate agencies or treatment programs. State v. Schinzel, 271 Neb. 281, 710 N.W.2d 634 (2006).
At an annual review hearing, the court may receive records for the purpose of providing the basis for expert witnesses' opinions. At an annual review hearing, courts are to consider public safety when determining what conditions of liberty and monitoring to place upon a person found to be mentally ill and dangerous. State v. Simants, 248 Neb. 581, 537 N.W.2d 346 (1995).
A court may review records and conduct an evidentiary hearing to determine if the insanity acquittee remains dangerous. State v. Simants, 245 Neb. 925, 517 N.W.2d 361 (1994).
At an annual review hearing pursuant to this section, the court may receive records for the purpose of providing the basis for expert witness' opinions. State v. Hayden, 237 Neb. 286, 466 N.W.2d 66 (1991).
It is proper that the State recommend a treatment plan, provided that the State allows the person being recommitted an opportunity to confront and cross-examine the State's witness presenting the plan regarding the plan's content. The court may consider any treatment plan which may be proposed by an expert witness for the person being recommitted. State v. Hayden, 237 Neb. 286, 466 N.W.2d 66 (1991).
The civil commitment weight of evidence standard, that of "clear and convincing evidence," is appropriate for persons acquitted on grounds of insanity and is not vague and ambiguous. Tulloch v. State, 237 Neb. 138, 465 N.W.2d 448 (1991).
The court's incorporation by reference of the conditions of confinement set forth in a doctor's report did not deny access to the district court. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).
Where the only issue is whether the restrictions of confinement should be relaxed and whether such modifications would be consistent with public safety, that determination is left to the trial court's discretion and will not be disturbed on appeal absent an abuse of discretion. State v. Morris, 2 Neb. App. 887, 518 N.W.2d 664 (1994).
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.
Annotations
Due process in review hearings is guaranteed under this section. State v. Hayden, 237 Neb. 286, 466 N.W.2d 66 (1991).
The rights one enjoys at a section 29-3703 hearing include adherence by the court to the Nebraska Evidence Rules and the right of appellant to confront and cross-examine adverse witnesses. State v. Hayden, 237 Neb. 286, 466 N.W.2d 66 (1991).
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.
Cross References
Nebraska Mental Health Commitment Act, see section 71-901.
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.
Annotations
This section does not regulate the release of trial records, but merely makes all pleadings, evidence, and orders related to a review hearing part of the official record in the underlying case. State v. Cribbs, 237 Neb. 947, 469 N.W.2d 108 (1991).
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.
Annotations
The procedure set out in this section, including the speedy trial provision of section 29-3805, applies only to a prisoner in the custody of the Department of Correctional Services and ceases to apply to a criminal defendant when he or she is discharged from the custody of the Department of Correctional Services. State v. Yzeta, 313 Neb. 202, 983 N.W.2d 124 (2023).
The procedure set out in section 29-3801 et seq., rather than that in section 29-1201 et seq., applies to instate prisoners. State v. Ebert, 235 Neb. 330, 455 N.W.2d 165 (1990).
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.
Annotations
Where the prisoner has actual knowledge of the pending charge, this section is deemed satisfied. State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).
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.
Annotations
It is a prosecutor's receipt of the statutorily required certificate from the Director of Correctional Services pursuant to this section or section 29-3804 which triggers the 180-day period for disposition of untried charges prescribed by section 29-3805. State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).
The statutory right of a person in the custody of the Nebraska Department of Correctional Services to a speedy trial on pending criminal charges in Nebraska is governed by sections 29-3801 to 29-3809. The denial of a speedy trial claim governed by these sections is a final, appealable order. State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).
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.
Annotations
Subsection (2) of this section does not require a prosecutor to file a detainer against any prisoner, and the filing of a detainer is not required in order for a prisoner to assert his or her right to a speedy trial pursuant to section 29-3803. It is a prosecutor's receipt of the statutorily required certificate from the Director of Correctional Services pursuant to section 29-3803 or this section which triggers the 180-day period for disposition of untried charges prescribed by section 29-3805. State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).
A prosecutor must lodge a detainer in order to trigger the expediting provisions of Chapter 29, article 38. Bradley v. Hopkins, 246 Neb. 646, 522 N.W.2d 394 (1994).
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.
Annotations
1. Good cause
2. Certificate
3. Miscellaneous
1. Good cause
Good cause means a substantial reason, one that affords a legal excuse, and it is a factual question dealt with on a case-by-case basis. State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
Under some circumstances, courtroom unavailability may constitute good cause to continue a trial. State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
When defense counsel requested to schedule trial for a date after the conclusion of another trial in which defense counsel was involved, such request amounted to a request for continuance, and the district court's accession to it established good cause to extend the period within which the defendant could be brought to trial. State v. Rouse, 13 Neb. App. 90, 688 N.W.2d 889 (2004).
Good cause existed to continue a trial that charged a prisoner, who was incarcerated on an unrelated offense, with making terroristic threats against a juvenile court judge, beyond the 180-day time limit in this section setting forth requirements for when the untried charges were to be brought to trial. The day after the pretrial conference setting the trial date, the juvenile court judge informed the State he would be unavailable for trial on that date, and the State came forward as soon as possible after the trial was scheduled to inform the court and opposing counsel about the conflict. State v. Caldwell, 10 Neb. App. 803, 639 N.W.2d 663 (2002).
"Good cause" in intrastate or interstate detainer statutes means a substantial reason; one that affords legal excuse. State v. Caldwell, 10 Neb. App. 803, 639 N.W.2d 663 (2002).
Good cause in statutory provisions setting forth requirements for disposition of untried cases is something that must be substantial, but also a factual question dealt with on a case-by-case basis. State v. Caldwell, 10 Neb. App. 803, 639 N.W.2d 663 (2002).
Good cause under statutory provisions setting forth requirements for disposition of untried cases encompasses a situation where a witness is unavailable. State v. Caldwell, 10 Neb. App. 803, 639 N.W.2d 663 (2002).
Whether good cause exists for extending the time limit in this section, setting forth when untried charges are brought to trial, is a subjective, factual question within the discretion of the trial court. State v. Caldwell, 10 Neb. App. 803, 639 N.W.2d 663 (2002).
2. Certificate
Form VII could not serve to trigger the 180-day period under this section, since it was only filed in the county court and not delivered to the director of the Department of Correctional Services. State v. LeFever, 30 Neb. App. 562, 970 N.W.2d 792 (2022).
The certificate contemplated by this section is not restricted to one particular form. State v. LeFever, 30 Neb. App. 562, 970 N.W.2d 792 (2022).
Whether invoked by an instate prisoner or by the prosecutor, it is the prosecutor's receipt of the statutorily required certificate from the director of the Department of Correctional Services pursuant to section 29-3803 or section 29-3804 which triggers the 180-day period for disposition of untried charges prescribed by this section. State v. LeFever, 30 Neb. App. 562, 970 N.W.2d 792 (2022).
3. Miscellaneous
If a person ceases to be a prisoner before being brought to trial and has not regained that status, he or she cannot be a prisoner at the time of trial as contemplated by this section. State v. Yzeta, 313 Neb. 202, 983 N.W.2d 124 (2023).
The 180-day period for trial under this section ceases to run after a person who is imprisoned in a facility operated by the Department of Correctional Services is finally discharged (in other words, when he or she is no longer a Department of Correctional Services prisoner). State v. Yzeta, 313 Neb. 202, 983 N.W.2d 124 (2023).
A Nebraska prisoner sought relief under two different speedy trial statutes, but only this section, governing intrastate detainers, applied. State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016).
The statutory right of a person in the custody of the Nebraska Department of Correctional Services to a speedy trial on pending criminal charges in Nebraska is governed by sections 29-3801 to 29-3809. The denial of a speedy trial claim governed by these sections is a final, appealable order. State v. Tucker, 259 Neb. 225, 609 N.W.2d 306 (2000).
Defense counsel's implicit request for a continuance did not operate as a waiver of the defendant's right to a disposition within the time limit imposed by the instate prisoner statutes; it merely extended the duration of the time period allowed for commencement of trial. State v. Rouse, 13 Neb. App. 90, 688 N.W.2d 889 (2004).
The law and decisions under the speedy trial statutes did not apply to the instate prisoner statutes, particularly this section; therefore, defendant's various pretrial motions did not toll the time period allowed for the commencement of trial. State v. Rouse, 13 Neb. App. 90, 688 N.W.2d 889 (2004).
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.
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.
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.
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.
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
In determining whether a criminal defendant is indigent as the term is used in this section, a court is to consider the seriousness of the offense; the defendant's income; the availability of resources, including real and personal property, bank accounts, Social Security, and unemployment or other benefits; normal living expenses; outstanding debts; and the number and age of dependents. State v. Eichelberger, 227 Neb. 545, 418 N.W.2d 580 (1988); State v. Masilko, 226 Neb. 45, 409 N.W.2d 322 (1987).
To determine whether a defendant in a criminal case is indigent, requiring court-appointed counsel, a court must consider factors listed. State v. Richter, 225 Neb. 837, 408 N.W.2d 717 (1987).
This section defines indigency and along with section 29-1804.05 requires the court to make a reasonable inquiry as to a defendant's financial condition. To determine indigency the court must consider the seriousness of the offense; the defendant's income; the availability of other resources, including real and personal property, bank accounts, Social Security, and unemployment or other benefits; normal living expenses; outstanding debts; and the number and age of dependents. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987).
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
The requirement of this section is that before counsel is provided at public expense for a criminal defendant, there must be a reasonable inquiry to determine the defendant's financial condition. State v. Eichelberger, 227 Neb. 545, 418 N.W.2d 580 (1988).
Section 29-1804.04 defines indigency and along with this section requires the court to make a reasonable inquiry as to a defendant's financial condition. To determine indigency the court must consider the seriousness of the offense; the defendant's income; the availability of other resources, including real and personal property, bank accounts, Social Security, and unemployment or other benefits; normal living expenses; outstanding debts; and the number and age of dependents. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987).
Failure to inquire into a defendant's indigency for appointment of counsel at the defendant's first court appearance does not result in prejudicial error if the defendant is not ultimately sentenced to time in jail. State v. Golden, 8 Neb. App. 601, 599 N.W.2d 224 (1999).
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
Defendant's right to desire to have counsel appointed was violated. State v. Sondag, 214 Neb. 659, 335 N.W.2d 306 (1983).
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.
Annotations
Either appointed counsel or the county involved may appeal to the Supreme Court from an order determining the amount of fees and expenses allowed appointed counsel under this section. In re Claim of Rehm and Faesser, 226 Neb. 107, 410 N.W.2d 92 (1987).
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.
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.
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.
Annotations
An order finding a defendant to be indigent and appointing appellate counsel at the county's expense did not affect
a substantial right of the parties and was not a final order for purposes of appeal, where the order did not obligate
the county to pay any specific amount or set a deadline for payment, such determinations were to be the subject of
future proceedings addressing the question of reasonable attorney fees, and the State had the ability to challenge the
findings of indigency and recoup any subsequently expended funds from the defendant. State v. Fredrickson, 305
Neb. 165, 939 N.W.2d 385 (2020).
This section does not require parents to pay their child's legal fees unless it is shown that the parents refused to provide necessary legal services. County of York v. Johnson, 206 Neb. 200, 292 N.W.2d 31 (1980).
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.
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.
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.
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.
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.
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.
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
Nebraska Mental Health Commitment Act, see section 71-901.
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.
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.
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.
Cross References
Nebraska Juvenile Code, see section 43-2,129.
Annotations
Appointment of counsel other than the public defender are limited to cases of multiple defendants requiring separate representation or circumstances which, in the court's opinion, require outside counsel. State v. Addison, 198 Neb. 166, 251 N.W.2d 895 (1977).
29-3919.
Act, how cited.Sections 29-3919 to 29-3933 shall be known and may be cited as the County Revenue Assistance Act.
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
Nebraska Capital Expansion Act, see section 72-1269.
Nebraska State Funds Investment Act, see section 72-1260.
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.
Cross References
Civil legal services for eligible low-income persons, see sections 25-3001 to 25-3004.
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.
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.
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.
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
Legal Education for Public Service and Rural Practice Loan Repayment Assistance Act, see section 7-201.
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
DNA Testing Act, see section 29-4116.
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.
29-4001.
Act, how cited.Sections 29-4001 to 29-4014 shall be known and may be cited
as the Sex Offender Registration Act.
Annotations
Use of a stakeholder group to determine the cutoff points for the three risk levels under the Sex Offender Registration Act does not render the risk assessment instrument arbitrary. Lein v. Nesbitt, 269 Neb. 109, 690 N.W.2d 799 (2005).
The duty to register as a sex offender under Nebraska's Sex Offender Registration Act is collateral to a defendant's sentence on the underlying conviction. A trial court is not required to inform a defendant of the collateral consequence of his or her duty to register as a sex offender under Nebraska's Sex Offender Registration Act before accepting a plea of guilty or no contest, and such pleas are not rendered involuntary or unintelligent because the defendant was not aware of this requirement. State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002).
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.
Annotations
Following the 2009 amendments to the Sex Offender Registration Act, a sentencing court has the authority to
find that a defendant committed an aggravated offense as defined in subdivision (1) of this section. State v. Wilson,
306 Neb. 875, 947 N.W.2d 704 (2020).
When a defendant pleads to an offense, such as first degree sexual assault pursuant to section 28-319, where the
term "aggravated offense" is not a specifically included element of the offense, in order for lifetime community
supervision to apply, a jury would need to find that the defendant had committed an aggravated offense, or the
defendant must plead separately to the commission of an aggravated offense. State v. Nelson, 27 Neb. App. 748,
936 N.W.2d 32 (2019).
To constitute "direct genital touching" for purposes of finding an aggravated offense under this section, there
must be evidence that the actor touched the victim's genitals under the victim's clothing. State v. Kresha, 25 Neb.
App. 543, 909 N.W.2d 93 (2018).
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.
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
A sex offender registrant's actual registration under another jurisdiction's law is conclusive evidence that the registrant was required to register within the meaning of subdivision (1)(a)(iv) of this section. State v. Clemens, 300 Neb. 601, 915 N.W.2d 550 (2018).
Under subdivision (1)(a)(iv) of this section, whether one is "required to register as a sex offender" in another jurisdiction is determined under the laws of the other jurisdiction rather than under Nebraska law. Subdivision (1)(a)(iv) of this section adds no additional requirement that registration in the other jurisdiction must be based on a "conviction" or an offense that would have required the person to register in Nebraska if the offense had been committed in Nebraska. State v. Clemens, 300 Neb. 601, 915 N.W.2d 550 (2018).
A finding under subdivision (1)(b)(i)(B) of this section must be made during the proceedings on the underlying conviction or plea and is a judgment on the issue of the Sex Offender Registration Act's application to the defendant, which must be appealed at the end of the proceeding. State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018).
Before determining that a defendant convicted of a crime not sexual in nature is subject to sex offender registration pursuant to subsection (1)(b)(i)(B) of this section, the court must provide notice and a hearing and must make the finding whether sexual penetration or sexual contact occurred in connection with the incident that gave rise to the conviction based on the record and the hearing. State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
Subsection (1)(b)(i)(B) of this section provides that the court's finding shall include consideration of the factual basis for a plea-based conviction and information contained in the presentence report. However, the statute does not limit the court's consideration to such sources and, because a liberty interest is at stake, a meaningful hearing requires consideration of evidence at the hearing as well as the factual basis and the presentence report. State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
The finding required under subsection (1)(b)(i)(B) of this section should be established by clear and convincing evidence. State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
A sex offender registrant's actual registration under another jurisdiction's law is conclusive evidence that the registrant was "required" to register within the meaning of subsection (1)(a)(iv) of this section. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).
Subsection (1)(a)(iv) of this section has no residency requirement. Skaggs v. Nebraska State Patrol, 282 Neb. 154, 804 N.W.2d 611 (2011).
The Sex Offender Registration Act applies to an individual whose crime occurred prior to January 1, 1997, if the individual was incarcerated or on probation or parole for that crime on and after January 1, 1997. In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (2011).
Incest of an adult is not a registrable offense under the Sex Offender Registration Act. State v. Aguilar-Moreno, 17 Neb. App. 623, 769 N.W.2d 784 (2009).
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.
Annotations
Following the 2009 amendments to the Sex Offender Registration Act, a sentencing court has the authority to
find that a defendant committed an aggravated offense as defined in section 29-4001.01 and to inform the defendant
that he or she is thus required to register for life under subdivision (1)(b)(iii) of this section. State v. Wilson, 306
Neb. 875, 947 N.W.2d 704 (2020).
Under the Sex Offender Registration Act, pursuant to the former subsection (2) of this section, a convicted sex offender whose offense is determined to be an "aggravated offense" is subject to the lifetime registration requirement. State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010).
A sentencing judge may determine whether an aggravated offense as formerly defined in subsection (4)(a) of this section has been committed based upon information contained in the record, including the factual basis for a plea-based conviction and information contained in the presentence report. State v. Hamilton, 277 Neb. 593, 763 N.W.2d 731 (2009).
The plain language of this section states that when sentencing a person, the court "shall" provide written notification and copies of the notification and corresponding journal entry to various parties. Thus, the requirements of the Sex Offender Registration Act are mandatory. State v. Pathod, 269 Neb. 155, 690 N.W.2d 784 (2005).
Because subsection (2) of this section requires the sentencing court to include the finding of an aggravated offense as part of the sentencing order, the registration requirements for an aggravated offense are part of the court's judgment for purposes of filing a direct appeal. State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
The lifetime registration requirement under subsection (2) of this section is not criminal punishment. State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
A defendant who had a prior conviction for a registrable offense under the Sex Offender Registration Act could challenge on direct appeal a lifetime registration requirement, because the sentencing court must make a finding of fact concerning lifetime registration as part of the sentencing order. State v. Aguilar-Moreno, 17 Neb. App. 623, 769 N.W.2d 784 (2009).
The plain language of this section requires that when making a determination that a person is a sexually violent offender, the sentencing court shall consider evidence from experts in the field of the behavior and treatment of sexual offenders. State v. Rodriguez, 11 Neb. App. 819, 660 N.W.2d 901 (2003).
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
In carrying out its notification obligation under subsection (7) of this section, the Nebraska State Patrol cannot
make a different determination regarding an offender's registration duration after a sentencing court finds an
aggravated offense as defined in section 29-4001.01. State v. Wilson, 306 Neb. 875, 947 N.W.2d 704 (2020).
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
Following the 2009 amendments to the Sex Offender Registration Act, a sentencing court has the authority to
find that a defendant committed an aggravated offense as defined in section 29-4001.01 and to inform the defendant
that he or she is thus required to register for life under section 29-4005. State v. Wilson, 306 Neb. 875, 947 N.W.2d
704 (2020).
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.
Annotations
The phrase "knowingly and willfully" in this section applies only to the furnishing of false and misleading information and not to the failure to update information. State v. Clark, 22 Neb. App. 124, 849 N.W.2d 151 (2014).
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.
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.
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
Amendments to the set-aside statute that allow a set-aside conviction to be used for purposes of determining risk under the Sex Offender Registration Act did not apply retroactively to a sex offender whose prior convictions for non-sex-offenses were set aside prior to the amendments, and thus the offender's set-aside convictions could not be used for risk assessment under the act. Orders setting aside the offender's convictions vested him with the right to have the set-aside convictions used only for those purposes listed in this section at the time the orders were entered. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
For purposes of classifying a convicted sex offender under the Sex Offender Registration Act, unsworn victim statements obtained by police were not competent evidence to support scoring under the section of the risk assessment instrument concerning the nature of the offender's sexual assault behavior. Where the statements were not correlated to any offense for which the offender was charged or convicted, statements bore no other indicia of probative value, and nothing in the record established the truth of the statements. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
The fact that orders setting aside a convicted sex offender's prior convictions for nonsexual offenses were issued after the offender's risk assessment instrument was scored did not preclude the hearing officer from considering those orders when resolving the offender's administrative challenge to his sex offender classification under the Sex Offender Registration Act; regulations existing at the time of the administrative review process indicated that the hearing officer could consider events occurring after the initial scoring of the risk assessment instrument. McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
This section permits the Nebraska State Patrol to post information concerning Level 3 sex offenders on its Website. Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004).
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.
Annotations
This section does not violate the constitutional provisions relating to equal protection, special legislation, separation of powers, bills of attainder, ex post facto, or double jeopardy. In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
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.
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.
Cross References
Child Care Licensing Act, see section 71-1908.
Sex Offender Registration Act, see section 29-4001.
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.
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.
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.
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.
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.
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
Sex Offender Registration Act, see section 29-4001.
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.
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.
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
The requirement for a convicted felon to provide a DNA sample pursuant to subdivision (1)(a) of this section
exists once the convicted felon begins serving his or her sentence. State v. Weathers, 304 Neb. 402, 935 N.W.2d
185 (2019).
This section inherently authorizes the use of reasonable force to collect a DNA sample from a convicted felon.
State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
The retroactive application of subsection (2) of this section leading to the forfeiture of past and future good time for the failure to provide a DNA sample is a violation of the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions. Shepard v. Houston, 289 Neb. 399, 855 N.W.2d 559 (2014).
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.
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.
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.
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.
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.
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.
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.
29-4114.
Rules and regulations.The Nebraska State Patrol shall adopt and promulgate rules and regulations to carry out the DNA Identification Information Act.
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.
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.
Cross References
Nebraska Capital Expansion Act, see section 72-1269.
Nebraska State Funds Investment Act, see section 72-1260.
29-4116.
Act, how cited.Sections 29-4116 to 29-4125 shall be known and may be cited as the DNA Testing Act.
Annotations
Pursuant to the DNA Testing Act, a person in custody takes the first step toward obtaining possible relief by filing
a motion in the court that entered the judgment requesting forensic DNA testing of biological material. State v.
Hale, 306 Neb. 725, 947 N.W.2d 313 (2020).
The DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to
establish innocence after a conviction. State v. Hale, 306 Neb. 725, 947 N.W.2d 313 (2020).
The DNA Testing Act does not apply to DNA testing of the defendant's person for the purpose of determining the defendant's metabolism of prescription medication. Furthermore, new evidence concerning a defendant's metabolism of prescription drugs, when such evidence has no bearing on identity, is not exculpatory under the DNA Testing Act. State v. Robbins, 297 Neb. 503, 900 N.W.2d 745 (2017).
Proceedings under the DNA Testing Act are civil in nature, and although the State has only a limited right to appeal in a criminal case, there are no such restrictions under the act; thus, as in any other civil proceeding, the State must cross-appeal in order for the Nebraska Supreme Court to consider any argument that a lower court’s decision should be upheld on grounds specifically rejected below. State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014).
In enacting the DNA Testing Act, the Legislature intended to provide (1) an extraordinary remedy—vacation of the judgment—for the compelling circumstance in which actual innocence is conclusively established by DNA testing and (2) an ordinary remedy—a new trial—for circumstances in which newly discovered DNA evidence would have, if available at the former trial, probably produced a substantially different result. State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012).
Postconviction DNA evidence probably would have produced a substantially different result at trial if the evidence (1) tends to create a reasonable doubt about the defendant's guilt and (2) does not merely impeach or contradict a key eyewitness' testimony, but is probative of a factual situation different from that to which the witness testified. State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012).
To warrant an order vacating a judgment of conviction under the DNA Testing Act, the movant must present DNA testing results that, when considered with the evidence presented at the trial leading to conviction, show a complete lack of evidence to establish an essential element of the crime charged. But to warrant an order for a new trial under the DNA Testing Act, the movant must present DNA testing results that probably would have produced a substantially different result if the evidence had been offered and admitted at the movant's trial. State v. Parmar, 283 Neb. 247, 808 N.W.2d 623 (2012).
An action under the DNA Testing Act is a collateral attack on a conviction and is therefore similar to a postconviction action and is not part of the criminal proceeding itself. State v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007).
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.
Annotations
The DNA Testing Act is a limited remedy providing inmates an opportunity to obtain DNA testing in order to establish innocence after a conviction. State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020).
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.
Annotations
The DNA Testing Act was not intended to be an alternative vehicle for raising claims of ineffective assistance of counsel. State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010).
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.
Annotations
DNA testing results that excluded a prisoner as a source of semen found on the victim at the time of her death did not fit within the definition of exculpatory evidence, because the prisoner was not charged with sexual assault, and his exclusion as a source of semen was not material to whether he was guilty of murder or of using a weapon to commit a felony. State v. Buckman, 311 Neb. 304, 971 N.W.2d 791 (2022).
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.
Annotations
1. General
2. Procedure
3. Successive motions
4. Miscellaneous
1. General
A court is not required to order DNA testing under this section if such testing would not produce exculpatory
evidence. State v. Hale, 306 Neb. 725, 947 N.W.2d 313 (2020).
If the criteria in subsection (1) of this section are met, and the reviewing court finds that testing may produce
noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced,
under subsection (5) of this section, the court must order DNA testing. State v. Hale, 306 Neb. 725, 947 N.W.2d
313 (2020).
The threshold showing required under subsection (5) of this section is relatively undemanding and will generally
preclude testing only where the evidence at issue would have no bearing on the guilt or culpability of the movant.
State v. Hale, 306 Neb. 725, 947 N.W.2d 313 (2020).
The possibility of extraneous DNA being deposited on victims' shirts while stored in a cardboard box and possibly handled by various persons during the course of the trial for sodomy and rape related to the third prong of the DNA Testing Act on whether the requested DNA testing could lead to exculpatory evidence—not the second prong on whether the evidence was retained under circumstances likely to safeguard the integrity of the biological material's original physical composition—interpreting the "physical integrity" prong as demanding that the biological evidence was secured in a way likely to avoid accidental contamination with extraneous DNA from epithelial cells would undermine the express purposes of the act. State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014).
The DNA Testing Act does not exclude persons who were convicted and sentenced pursuant to pleas. State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007).
Subsection (5) of this section requires that the specific DNA testing requested in the motion, as opposed to DNA testing in general, was effectively not available at the time of trial. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
The requirements of this section are met if types of DNA testing are available that were effectively not available at the time of trial, and if such testing will produce more accurate and probative results. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
2. Procedure
Under subsection (5) of this section, the court has discretion to either consider the motion on affidavits or hold a
hearing. State v. Hale, 306 Neb. 725, 947 N.W.2d 313 (2020).
With regard to a defendant's motion for DNA testing under the DNA Testing Act, the State, as the custodian of the evidence, had the burden to establish whether the requested biological evidence still existed and was available for testing. State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014).
A motion for DNA testing is similar to a motion for new trial based on newly discovered evidence, as opposed to a collateral postconviction attack on a final judgment. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
A motion for DNA testing under the DNA Testing Act is addressed to the discretion of the trial court and unless an abuse of discretion is shown, the determination of the trial court will not be disturbed on appeal. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
In an appeal from a proceeding under the DNA Testing Act, the trial court's findings of fact will be upheld unless such findings are clearly erroneous. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
3. Successive motions
Pursuant to subsection (5) of this section, in cases of successive motions for DNA testing, the district court must make a new determination of whether the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, but such determination shall be limited to a review of the evidence occurring since the last motion for DNA testing. State v. Pratt, 20 Neb. App. 434, 824 N.W.2d 393 (2013).
Second, or successive, motions for DNA testing are permissible pursuant to the DNA Testing Act, specifically subsection (1)(c) of this section; however, res judicata principles would operate to bar a successive motion for DNA testing if the exact same issue was raised in both motions. State v. Pratt, 20 Neb. App. 434, 824 N.W.2d 393 (2013).
When a defendant files successive motions for DNA testing pursuant to the DNA Testing Act, specifically subsection (5) of this section, a court is required to first consider whether the DNA testing sought was effectively not available at the time of the trial; if it was not, the court must then consider whether the DNA testing was effectively not available at the time the previous DNA testing was sought by the defendant. State v. Pratt, 20 Neb. App. 434, 824 N.W.2d 393 (2013).
4. Miscellaneous
The statutory requirement that requested DNA testing may produce noncumulative, exculpatory evidence relevant
to a movant's claim that he or she was wrongfully convicted or sentenced is relatively undemanding for the movant
and will generally preclude testing only where the evidence at issue would have no bearing on the guilt or culpability
of the movant. State v. Ildefonso, 304 Neb. 711, 936 N.W.2d 348 (2019).
Where a prisoner sought DNA testing to corroborate an admittedly fabricated story and where testing results
would be inconclusive at best, the prisoner failed to meet his burden to show that DNA testing may produce
noncumulative, exculpatory evidence relevant to his claim that he was wrongfully convicted. State v. Ildefonso, 304
Neb. 711, 936 N.W.2d 348 (2019).
The showing that must be made to obtain DNA testing presents a relatively low threshold; in determining whether
to allow such testing, consideration of the higher legal standards applicable to setting aside a judgment or requiring
a new trial after testing has been performed is inappropriate. State v. Myers, 301 Neb. 756, 919 N.W.2d 893 (2018).
Evidence which was available but not pursued is not considered to have been unavailable at the time of trial. State v. Haas, 279 Neb. 812, 782 N.W.2d 584 (2010).
As an initial matter, DNA testing presupposes at least two samples of biological material. State v. Dean, 270 Neb. 972, 708 N.W.2d 640 (2006).
DNA testing cannot be exculpatory for purposes of this section if a defendant merely seeks to use such evidence to show how blood was deposited on a specific item that is to be tested. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
DNA testing could not produce noncumulative, exculpatory evidence relevant to the claim that the defendant was wrongfully sentenced when the record is barren of any evidence that the defendant was merely an accomplice or that his participation in the crime was relatively minor. State v. Lotter, 266 Neb. 758, 669 N.W.2d 438 (2003).
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.
Cross References
Commission on Public Advocacy, see the County Revenue Assistance Act, section 29-3919.
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.
Cross References
Commission on Public Advocacy, see the County Revenue Assistance Act, section 29-3919.
Annotations
Decisions regarding appointment of counsel under the DNA Testing Act are reviewed for an abuse of discretion.
State v. Myers, 304 Neb. 789, 937 N.W.2d 181 (2020).
Decisions regarding appointment of counsel under the DNA Testing Act are reviewed for an abuse of discretion. State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006).
There is not a constitutional right to appointment of counsel in an action under the DNA Testing Act. State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006).
Under this section, the court has discretion to appoint counsel based on its determination of whether the person bringing the action has shown that DNA testing may be relevant to his or her claim of wrongful conviction. State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006).
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.
Annotations
The trial court did not abuse its discretion in sustaining the State's motion to dismiss where other credible evidence tied the prisoner to the crimes and the results of DNA testing—which did not detect any blood on certain items—were best regarded as inconclusive, and the results that excluded the prisoner as the source of semen were not material to the crimes charged. State v. Buckman, 311 Neb. 304, 971 N.W.2d 791 (2022).
Resentencing, absent a successful motion for new trial under this section, is not a form of relief available under the DNA Testing Act. State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020).
Withdrawal of a guilty or no contest plea is not an available remedy under the DNA Testing Act. State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020).
Unless an abuse of discretion is shown, the trial court's determination on a motion for new trial, based on the issue of whether DNA evidence was of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result, will not be disturbed on appellate review. State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
A motion to dismiss an action under the DNA Testing Act after testing has been completed is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the court's determination will not be disturbed. State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006).
In order to bring an action under the DNA Testing Act to a conclusion, when the State receives DNA testing results that do not exonerate or exculpate the person, the State should file a motion to dismiss the action, the granting of which is an appealable order. State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006).
The DNA Testing Act establishes a clear procedural framework for movants seeking relief pursuant to the DNA Testing Act. First, a movant may obtain DNA testing if, inter alia, the testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced. Second, the court may vacate and set aside the judgment in circumstances where the DNA testing results are either completely exonerative or highly exculpatory—when the results, when considered with the evidence of the case which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element of the crime charged. This requires a finding that guilt cannot be sustained because the evidence is doubtful in character and completely lacking in probative value. Third, in other circumstances where the evidence is merely exculpatory, the court may order a new trial if the newly discovered exculpatory DNA evidence is of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result. State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
A court may properly grant a motion to vacate and set aside the judgment under subsection (2) of this section when (1) the DNA testing results exonerate or exculpate the person and (2) the results, when considered with the evidence of the case which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element of the crime charged. This requires a finding that guilt cannot be sustained because the evidence is doubtful in character and completely lacking in probative value. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
The appeal of a ruling denying a motion to vacate and set aside the judgment under subsection (2) of this section of the DNA Testing Act does not deprive a trial court of jurisdiction to consider a motion for new trial filed under subsection (6) of section 29-2101 based on newly discovered evidence obtained under the DNA Testing Act. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
The denial of a motion to vacate and set aside the judgment under subsection (2) of this section affects a substantial right in a special proceeding and is therefore an appealable order under section 25-1902. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).
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.
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.
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.
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.
Annotations
This section demonstrates that the Legislature did not intend to allow written arraignments filed under section 29-4206 to supersede Nebraska's criminal procedure statutes. State v. Liston, 271 Neb. 468, 712 N.W.2d 264 (2006).
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.
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.
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.
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.
Annotations
This section does not authorize district courts to accept pleas of not guilty on a conditional basis or alter the requirement under section 29-1812 that a defendant must withdraw his or her plea to the general issue before filing a motion to quash. State v. Liston, 271 Neb. 468, 712 N.W.2d 264 (2006).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Cross References
Uniform Controlled Substances Act, see section 28-401.01.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Annotations
Actual innocence under the Wrongful Conviction and Imprisonment Act is akin to factual innocence, while a self-defense claim is relevant to a claim of legal innocence. Marie v. State, 302 Neb. 217, 922 N.W.2d 733 (2019).
Claim preclusion is inapplicable in cases under the Wrongful Conviction and Imprisonment Act. Marie v. State,
302 Neb. 217, 922 N.W.2d 733 (2019).
A defendant alleging a wrongful conviction claim pursuant to this section must plead more than lack of intent to establish "actual innocence of the crime." Nadeem v. State, 298 Neb. 329, 904 N.W.2d 244 (2017).
The term "false statement" as used in this section does not mean a statement that is factually incorrect; a factually inaccurate statement made by one who believes it is true is not a "false statement." Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).
Subdivision (2) of this section addresses "legal innocence": the absence of one or more procedural or legal bases to support the sentence given a defendant. Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).
Subdivision (3) of this section addresses "actual innocence": the absence of facts that are prerequisites for the sentence given to a defendant. Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).
This section does not provide for the appointment of counsel. Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).
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.
Annotations
Where damages are subject to a statutory cap, the determination of damages is a two-stage process which involves an initial factual determination of the actual damages sustained by the injured party and then a legal application of the statutory cap if the actual damages exceed the statutory maximum recoverable amount. Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).
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.
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.
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.
Cross References
State Tort Claims Act, see section 81-8,235.
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.
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.
29-4702.
Applicability.Sections 29-4701 to 29-4706 apply to any case in which a suspect or defendant is charged with a felony.
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.
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.
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.
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.
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.
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.
Cross References
Uniform Credentialing Act, see section 38-101.
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.
Cross References
Nebraska Probation Administration Act, see section 29-2269.
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.
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.
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.
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.