State Codes and Statutes

Statutes > Nebraska > Chapter29 > 29-2320

29-2320. Appeal of sentenceby prosecuting attorney orAttorney General; when authorized.Whenevera defendant is found guilty of a felony following a trial or the entry ofa plea of guilty or tendering a plea of nolo contendere, the prosecuting attorneycharged with the prosecution of such defendant or the Attorney General may appeal the sentenceimposed if thereis a reasonable belief, based on all of the facts and circumstancesof the particular case, that the sentence is excessively lenient. SourceLaws 1982, LB 402, § 1; Laws 1991, LB 732, § 82; Laws 2003, LB 17, § 15; Laws 2009, LB63, § 26.AnnotationsA 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).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).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).This section is not unconstitutional. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (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).