State Codes and Statutes

Statutes > Nebraska > Chapter28 > 28-1205

28-1205. Use of a deadly weapon to commit a felony; possession of a deadly weapon during thecommission of a felony; penalty; separate and distinct offense; proof of possession.(1)(a) Any person who usesa firearm, a knife, brass or iron knuckles, or any other deadly weapon tocommit any felony which may be prosecuted in a court of this state commitsthe offense of use of a deadly weapon tocommit a felony.(b) Use of a deadly weapon, other than a firearm, to commit a felony is aClass II felony.(c) Use of a deadly weapon, which is a firearm, to commit a felony is aClass IC felony.(2)(a) Anyperson who possesses a firearm, a knife, brass or iron knuckles, or a destructivedevice during the commission of any felony which may be prosecuted in a courtof this state commits the offense of possession of a deadly weapon duringthe commission of a felony.(b) Possession of a deadly weapon, otherthan a firearm, during the commission of a felony is a Class III felony.(c) Possessionof a deadly weapon, which is a firearm, during the commission of a felonyis a Class II felony.(3) The crimes definedin this section shall be treated as separate and distinct offenses from thefelony being committed, and sentences imposed under this section shall beconsecutive to any other sentence imposed.(4) Possessionof a deadly weapon may be proved through evidence demonstrating either actualor constructive possession of a firearm, a knife, brass or iron knuckles,or a destructive device during, immediately prior to, or immediately afterthe commission of a felony.(5) For purposes of this section:(a) Destructivedevice has the same meaning as in section 28-1213; and(b) Use ofa deadly weapon includes the discharge, employment, or visible display ofany part of a firearm, a knife, brass or iron knuckles, any other deadly weapon,or a destructive device during, immediately prior to, or immediately afterthe commission of a felony or communication to another indicating the presenceof a firearm, a knife, brass or iron knuckles, any other deadly weapon, ora destructive device during, immediately prior to, or immediately after thecommission of a felony, regardless of whether such firearm, knife, brass oriron knuckles, deadly weapon, or destructive device was discharged, activelyemployed, or displayed. SourceLaws 1977, LB 38, § 237; Laws 1995, LB 371, § 8; Laws 2009, LB63, § 14.Annotations1. Constitutionality2. Deadly weapon3. Evidence4. Generally5. Lesser-included offense6. Sentencing7. To commit any felony1. ConstitutionalityThe consecutive sentence requirement of this statute is constitutional. State v. Stratton, 220 Neb. 854, 374 N.W.2d 31 (1985).2. Deadly weaponThis statutory language expressly provides that the Legislature intended the crime of using a deadly weapon to commit a felony to remain an independent offense from the underlying felony. There can be no question that the Legislature intended that one using a deadly weapon be subjected to cumulative punishments for committing the underlying felony and for the use of the weapon to commit it. State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007).Pursuant to subsection (1) of this section, a defendant can be convicted of a use of a deadly weapon to commit a felony charge under an aiding and abetting theory. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).To sustain a conviction under the use prong of this section, the State must show that the defendant actively employed a deadly weapon for the purpose of committing a felony. Mere storage of a weapon at a residence where drugs are dealt is insufficient to support a conviction for the use of a deadly weapon under this section. The term possession, as used in this section, includes only actual possession; actual possession is defined as including only those weapons on one's person or within one's immediate control, which is the area within which one might immediately gain possession of a weapon. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).A defendant who aids and abets the use of a deadly weapon in the commission of a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).Pursuant to subsection (1) of this section, a "deadly weapon" is any instrument which, in the manner it is used or intended to be used, is capable of producing a bodily injury involving a substantial risk of (1) death, (2) serious permanent disfigurement, or (3) protracted loss or impairment of the function of any organ or body part. The weapon need not actually produce such injuries, but need only be used in a manner which makes it capable of producing them. Under the facts of this case, a 14- by 3- by 3/4-inch wooden "spanking board" could be found to be a deadly weapon. State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991).A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).3. EvidenceEvidence of a defendant's fingerprints has probative value; and it is for the jury to determine, in light of all other evidence, whether such evidence permits an inference to be drawn that beyond a reasonable doubt defendant was the person who committed the offense in question. State v. Pena, 208 Neb. 250, 302 N.W.2d 735 (1981).The evidence was sufficient to support a conviction for use of a deadly weapon to commit a felony, even though a crime laboratory report indicated that the defendant's handgun was inoperable. The evidence indicated that the defendant used a weapon designed to expel a projectile, as the report stated that the handgun was a semiautomatic pistol with a matching magazine. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).4. GenerallyWhen the felony which serves as a basis of the use of a weapon charge is an unintentional crime, the accused cannot be convicted of use of a weapon to commit a felony. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).Where the record reflects the use of multiple weapons in the commission of a single felony, the use of each weapon may constitute a separate violation of this section. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and use of a deadly weapon to commit a felony under this section in a single proceeding does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).This section defines a separate and distinct crime, and conviction of violation of this section is not enhancement with respect to conviction of felony in which firearm was used. State v. Dandridge, 209 Neb. 885, 312 N.W.2d 286 (1981).When instructing the jury on multiple counts under this section, the trial court need not repeat the "use" instruction for each separate count charged. State v. Charles, 4 Neb. App. 211, 541 N.W.2d 69 (1995).A defendant acquitted on the underlying felony charge cannot be convicted of an offense under this section involving that felony; but a defendant convicted of the underlying felony might still be acquitted on a charge under this section. State v. Smith, 3 Neb. App. 564, 529 N.W.2d 116 (1995).A defendant cannot be convicted under this section when defendant has been acquitted of the underlying felony. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995).5. Lesser-included offenseUse of a firearm or other deadly weapon in the commission of a felony is not a lesser-included offense of assault in the second degree. State v. Jackson, 217 Neb. 332, 348 N.W.2d 866 (1984).6. SentencingPursuant to subsection (3) of this section, two separate sentences of 15 to 20 years' imprisonment for the use of a deadly weapon in the commission of two separate first degree murders can be served consecutively to the respective murder convictions, even when one of the murder convictions is based on accomplice liability. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).Pursuant to subsection (3) of this section, the trial court's failure to impose defendant's sentence for use of a firearm consecutively to his life imprisonment sentence is plain error. State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).Although it is within the trial court's discretion to direct that sentences imposed for separate crimes be served consecutively, this section does not permit such discretion in sentencing. State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).Where defendant was convicted of two separate and distinct felonies, the sentences were within statutory limits and appropriately imposed consecutively. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).The language of subsection (3) of this section, to the effect that sentences under its provisions must be imposed consecutively to any sentence imposed for the predicate felony, is mandatory and not within the discretion of the sentencing court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).Although subsection (3) of this section mandates that a sentence imposed hereunder must be served consecutive to any other sentence, whether or not a defendant needs to be specifically apprised of such matter is factually dependent. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).Failure to advise the defendant that sentence for use of a weapon to commit a felony was required to run consecutively with any other sentence imposed was not prejudicial when defendant was advised of the combined minimum sentence which he could serve. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).Where a defendant is not informed that consecutive sentences are mandated by subsection (3) of this statute, he has been misinformed by the court, and his plea is not voluntary. State v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987).It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).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).7. To commit any felonyThe language "to commit any felony," as it is used in this section, is synonymous with "for the purpose of committing any felony." State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989).

State Codes and Statutes

Statutes > Nebraska > Chapter28 > 28-1205

28-1205. Use of a deadly weapon to commit a felony; possession of a deadly weapon during thecommission of a felony; penalty; separate and distinct offense; proof of possession.(1)(a) Any person who usesa firearm, a knife, brass or iron knuckles, or any other deadly weapon tocommit any felony which may be prosecuted in a court of this state commitsthe offense of use of a deadly weapon tocommit a felony.(b) Use of a deadly weapon, other than a firearm, to commit a felony is aClass II felony.(c) Use of a deadly weapon, which is a firearm, to commit a felony is aClass IC felony.(2)(a) Anyperson who possesses a firearm, a knife, brass or iron knuckles, or a destructivedevice during the commission of any felony which may be prosecuted in a courtof this state commits the offense of possession of a deadly weapon duringthe commission of a felony.(b) Possession of a deadly weapon, otherthan a firearm, during the commission of a felony is a Class III felony.(c) Possessionof a deadly weapon, which is a firearm, during the commission of a felonyis a Class II felony.(3) The crimes definedin this section shall be treated as separate and distinct offenses from thefelony being committed, and sentences imposed under this section shall beconsecutive to any other sentence imposed.(4) Possessionof a deadly weapon may be proved through evidence demonstrating either actualor constructive possession of a firearm, a knife, brass or iron knuckles,or a destructive device during, immediately prior to, or immediately afterthe commission of a felony.(5) For purposes of this section:(a) Destructivedevice has the same meaning as in section 28-1213; and(b) Use ofa deadly weapon includes the discharge, employment, or visible display ofany part of a firearm, a knife, brass or iron knuckles, any other deadly weapon,or a destructive device during, immediately prior to, or immediately afterthe commission of a felony or communication to another indicating the presenceof a firearm, a knife, brass or iron knuckles, any other deadly weapon, ora destructive device during, immediately prior to, or immediately after thecommission of a felony, regardless of whether such firearm, knife, brass oriron knuckles, deadly weapon, or destructive device was discharged, activelyemployed, or displayed. SourceLaws 1977, LB 38, § 237; Laws 1995, LB 371, § 8; Laws 2009, LB63, § 14.Annotations1. Constitutionality2. Deadly weapon3. Evidence4. Generally5. Lesser-included offense6. Sentencing7. To commit any felony1. ConstitutionalityThe consecutive sentence requirement of this statute is constitutional. State v. Stratton, 220 Neb. 854, 374 N.W.2d 31 (1985).2. Deadly weaponThis statutory language expressly provides that the Legislature intended the crime of using a deadly weapon to commit a felony to remain an independent offense from the underlying felony. There can be no question that the Legislature intended that one using a deadly weapon be subjected to cumulative punishments for committing the underlying felony and for the use of the weapon to commit it. State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007).Pursuant to subsection (1) of this section, a defendant can be convicted of a use of a deadly weapon to commit a felony charge under an aiding and abetting theory. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).To sustain a conviction under the use prong of this section, the State must show that the defendant actively employed a deadly weapon for the purpose of committing a felony. Mere storage of a weapon at a residence where drugs are dealt is insufficient to support a conviction for the use of a deadly weapon under this section. The term possession, as used in this section, includes only actual possession; actual possession is defined as including only those weapons on one's person or within one's immediate control, which is the area within which one might immediately gain possession of a weapon. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).A defendant who aids and abets the use of a deadly weapon in the commission of a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).Pursuant to subsection (1) of this section, a "deadly weapon" is any instrument which, in the manner it is used or intended to be used, is capable of producing a bodily injury involving a substantial risk of (1) death, (2) serious permanent disfigurement, or (3) protracted loss or impairment of the function of any organ or body part. The weapon need not actually produce such injuries, but need only be used in a manner which makes it capable of producing them. Under the facts of this case, a 14- by 3- by 3/4-inch wooden "spanking board" could be found to be a deadly weapon. State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991).A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).3. EvidenceEvidence of a defendant's fingerprints has probative value; and it is for the jury to determine, in light of all other evidence, whether such evidence permits an inference to be drawn that beyond a reasonable doubt defendant was the person who committed the offense in question. State v. Pena, 208 Neb. 250, 302 N.W.2d 735 (1981).The evidence was sufficient to support a conviction for use of a deadly weapon to commit a felony, even though a crime laboratory report indicated that the defendant's handgun was inoperable. The evidence indicated that the defendant used a weapon designed to expel a projectile, as the report stated that the handgun was a semiautomatic pistol with a matching magazine. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).4. GenerallyWhen the felony which serves as a basis of the use of a weapon charge is an unintentional crime, the accused cannot be convicted of use of a weapon to commit a felony. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).Where the record reflects the use of multiple weapons in the commission of a single felony, the use of each weapon may constitute a separate violation of this section. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and use of a deadly weapon to commit a felony under this section in a single proceeding does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).This section defines a separate and distinct crime, and conviction of violation of this section is not enhancement with respect to conviction of felony in which firearm was used. State v. Dandridge, 209 Neb. 885, 312 N.W.2d 286 (1981).When instructing the jury on multiple counts under this section, the trial court need not repeat the "use" instruction for each separate count charged. State v. Charles, 4 Neb. App. 211, 541 N.W.2d 69 (1995).A defendant acquitted on the underlying felony charge cannot be convicted of an offense under this section involving that felony; but a defendant convicted of the underlying felony might still be acquitted on a charge under this section. State v. Smith, 3 Neb. App. 564, 529 N.W.2d 116 (1995).A defendant cannot be convicted under this section when defendant has been acquitted of the underlying felony. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995).5. Lesser-included offenseUse of a firearm or other deadly weapon in the commission of a felony is not a lesser-included offense of assault in the second degree. State v. Jackson, 217 Neb. 332, 348 N.W.2d 866 (1984).6. SentencingPursuant to subsection (3) of this section, two separate sentences of 15 to 20 years' imprisonment for the use of a deadly weapon in the commission of two separate first degree murders can be served consecutively to the respective murder convictions, even when one of the murder convictions is based on accomplice liability. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).Pursuant to subsection (3) of this section, the trial court's failure to impose defendant's sentence for use of a firearm consecutively to his life imprisonment sentence is plain error. State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).Although it is within the trial court's discretion to direct that sentences imposed for separate crimes be served consecutively, this section does not permit such discretion in sentencing. State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).Where defendant was convicted of two separate and distinct felonies, the sentences were within statutory limits and appropriately imposed consecutively. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).The language of subsection (3) of this section, to the effect that sentences under its provisions must be imposed consecutively to any sentence imposed for the predicate felony, is mandatory and not within the discretion of the sentencing court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).Although subsection (3) of this section mandates that a sentence imposed hereunder must be served consecutive to any other sentence, whether or not a defendant needs to be specifically apprised of such matter is factually dependent. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).Failure to advise the defendant that sentence for use of a weapon to commit a felony was required to run consecutively with any other sentence imposed was not prejudicial when defendant was advised of the combined minimum sentence which he could serve. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).Where a defendant is not informed that consecutive sentences are mandated by subsection (3) of this statute, he has been misinformed by the court, and his plea is not voluntary. State v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987).It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).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).7. To commit any felonyThe language "to commit any felony," as it is used in this section, is synonymous with "for the purpose of committing any felony." State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989).

State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter28 > 28-1205

28-1205. Use of a deadly weapon to commit a felony; possession of a deadly weapon during thecommission of a felony; penalty; separate and distinct offense; proof of possession.(1)(a) Any person who usesa firearm, a knife, brass or iron knuckles, or any other deadly weapon tocommit any felony which may be prosecuted in a court of this state commitsthe offense of use of a deadly weapon tocommit a felony.(b) Use of a deadly weapon, other than a firearm, to commit a felony is aClass II felony.(c) Use of a deadly weapon, which is a firearm, to commit a felony is aClass IC felony.(2)(a) Anyperson who possesses a firearm, a knife, brass or iron knuckles, or a destructivedevice during the commission of any felony which may be prosecuted in a courtof this state commits the offense of possession of a deadly weapon duringthe commission of a felony.(b) Possession of a deadly weapon, otherthan a firearm, during the commission of a felony is a Class III felony.(c) Possessionof a deadly weapon, which is a firearm, during the commission of a felonyis a Class II felony.(3) The crimes definedin this section shall be treated as separate and distinct offenses from thefelony being committed, and sentences imposed under this section shall beconsecutive to any other sentence imposed.(4) Possessionof a deadly weapon may be proved through evidence demonstrating either actualor constructive possession of a firearm, a knife, brass or iron knuckles,or a destructive device during, immediately prior to, or immediately afterthe commission of a felony.(5) For purposes of this section:(a) Destructivedevice has the same meaning as in section 28-1213; and(b) Use ofa deadly weapon includes the discharge, employment, or visible display ofany part of a firearm, a knife, brass or iron knuckles, any other deadly weapon,or a destructive device during, immediately prior to, or immediately afterthe commission of a felony or communication to another indicating the presenceof a firearm, a knife, brass or iron knuckles, any other deadly weapon, ora destructive device during, immediately prior to, or immediately after thecommission of a felony, regardless of whether such firearm, knife, brass oriron knuckles, deadly weapon, or destructive device was discharged, activelyemployed, or displayed. SourceLaws 1977, LB 38, § 237; Laws 1995, LB 371, § 8; Laws 2009, LB63, § 14.Annotations1. Constitutionality2. Deadly weapon3. Evidence4. Generally5. Lesser-included offense6. Sentencing7. To commit any felony1. ConstitutionalityThe consecutive sentence requirement of this statute is constitutional. State v. Stratton, 220 Neb. 854, 374 N.W.2d 31 (1985).2. Deadly weaponThis statutory language expressly provides that the Legislature intended the crime of using a deadly weapon to commit a felony to remain an independent offense from the underlying felony. There can be no question that the Legislature intended that one using a deadly weapon be subjected to cumulative punishments for committing the underlying felony and for the use of the weapon to commit it. State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007).Pursuant to subsection (1) of this section, a defendant can be convicted of a use of a deadly weapon to commit a felony charge under an aiding and abetting theory. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).To sustain a conviction under the use prong of this section, the State must show that the defendant actively employed a deadly weapon for the purpose of committing a felony. Mere storage of a weapon at a residence where drugs are dealt is insufficient to support a conviction for the use of a deadly weapon under this section. The term possession, as used in this section, includes only actual possession; actual possession is defined as including only those weapons on one's person or within one's immediate control, which is the area within which one might immediately gain possession of a weapon. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).A defendant who aids and abets the use of a deadly weapon in the commission of a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).Pursuant to subsection (1) of this section, a "deadly weapon" is any instrument which, in the manner it is used or intended to be used, is capable of producing a bodily injury involving a substantial risk of (1) death, (2) serious permanent disfigurement, or (3) protracted loss or impairment of the function of any organ or body part. The weapon need not actually produce such injuries, but need only be used in a manner which makes it capable of producing them. Under the facts of this case, a 14- by 3- by 3/4-inch wooden "spanking board" could be found to be a deadly weapon. State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991).A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).3. EvidenceEvidence of a defendant's fingerprints has probative value; and it is for the jury to determine, in light of all other evidence, whether such evidence permits an inference to be drawn that beyond a reasonable doubt defendant was the person who committed the offense in question. State v. Pena, 208 Neb. 250, 302 N.W.2d 735 (1981).The evidence was sufficient to support a conviction for use of a deadly weapon to commit a felony, even though a crime laboratory report indicated that the defendant's handgun was inoperable. The evidence indicated that the defendant used a weapon designed to expel a projectile, as the report stated that the handgun was a semiautomatic pistol with a matching magazine. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).4. GenerallyWhen the felony which serves as a basis of the use of a weapon charge is an unintentional crime, the accused cannot be convicted of use of a weapon to commit a felony. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).Where the record reflects the use of multiple weapons in the commission of a single felony, the use of each weapon may constitute a separate violation of this section. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and use of a deadly weapon to commit a felony under this section in a single proceeding does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).This section defines a separate and distinct crime, and conviction of violation of this section is not enhancement with respect to conviction of felony in which firearm was used. State v. Dandridge, 209 Neb. 885, 312 N.W.2d 286 (1981).When instructing the jury on multiple counts under this section, the trial court need not repeat the "use" instruction for each separate count charged. State v. Charles, 4 Neb. App. 211, 541 N.W.2d 69 (1995).A defendant acquitted on the underlying felony charge cannot be convicted of an offense under this section involving that felony; but a defendant convicted of the underlying felony might still be acquitted on a charge under this section. State v. Smith, 3 Neb. App. 564, 529 N.W.2d 116 (1995).A defendant cannot be convicted under this section when defendant has been acquitted of the underlying felony. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995).5. Lesser-included offenseUse of a firearm or other deadly weapon in the commission of a felony is not a lesser-included offense of assault in the second degree. State v. Jackson, 217 Neb. 332, 348 N.W.2d 866 (1984).6. SentencingPursuant to subsection (3) of this section, two separate sentences of 15 to 20 years' imprisonment for the use of a deadly weapon in the commission of two separate first degree murders can be served consecutively to the respective murder convictions, even when one of the murder convictions is based on accomplice liability. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).Pursuant to subsection (3) of this section, the trial court's failure to impose defendant's sentence for use of a firearm consecutively to his life imprisonment sentence is plain error. State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).Although it is within the trial court's discretion to direct that sentences imposed for separate crimes be served consecutively, this section does not permit such discretion in sentencing. State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).Where defendant was convicted of two separate and distinct felonies, the sentences were within statutory limits and appropriately imposed consecutively. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).The language of subsection (3) of this section, to the effect that sentences under its provisions must be imposed consecutively to any sentence imposed for the predicate felony, is mandatory and not within the discretion of the sentencing court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).Although subsection (3) of this section mandates that a sentence imposed hereunder must be served consecutive to any other sentence, whether or not a defendant needs to be specifically apprised of such matter is factually dependent. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).Failure to advise the defendant that sentence for use of a weapon to commit a felony was required to run consecutively with any other sentence imposed was not prejudicial when defendant was advised of the combined minimum sentence which he could serve. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).Where a defendant is not informed that consecutive sentences are mandated by subsection (3) of this statute, he has been misinformed by the court, and his plea is not voluntary. State v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987).It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).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).7. To commit any felonyThe language "to commit any felony," as it is used in this section, is synonymous with "for the purpose of committing any felony." State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989).