State Codes and Statutes
Statutes > Nebraska > Chapter28 > 28-10528-105. Felonies; classification of penalties; sentences; where served; eligibility for probation.(1) For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, felonies are divided into nine classes which are distinguished from one another by the following penalties which are authorized upon conviction:Class I felony DeathClass IA felony Life imprisonment without paroleClass IB felony Maximum — life imprisonmentMinimum — twenty years imprisonmentClass IC felony Maximum — fifty years imprisonmentMandatory minimum — five years imprisonmentClass ID felony Maximum — fifty years imprisonmentMandatory minimum — three years imprisonmentClass II felony Maximum — fifty years imprisonmentMinimum — one year imprisonmentClass III felony Maximum — twenty years imprisonment, or twenty-five thousand dollars fine, or bothMinimum — one year imprisonmentClass IIIA felony Maximum — five years imprisonment, or ten thousand dollars fine, or bothMinimum — noneClass IV felony Maximum — five years imprisonment, or ten thousand dollars fine, or bothMinimum — none(2) All sentences of imprisonment for Class IA, IB, IC, ID, II, and III felonies and sentences of one year or more for Class IIIA and IV felonies shall be served in institutions under the jurisdiction of the Department of Correctional Services. Sentences of less than one year shall be served in the county jail except as provided in this subsection. If the department certifies that it has programs and facilities available for persons sentenced to terms of less than one year, the court may order that any sentence of six months or more be served in any institution under the jurisdiction of the department. Any such certification shall be given by the department to the State Court Administrator, who shall forward copies thereof to each judge having jurisdiction to sentence in felony cases.(3) Nothing in this section shall limit the authority granted in sections 29-2221 and 29-2222 to increase sentences for habitual criminals.(4) A person convicted of a felony for which a mandatory minimum sentence is prescribed shall not be eligible for probation. SourceLaws 1977, LB 38, § 5; Laws 1989, LB 592, § 1; Laws 1995, LB 371, § 2; Laws 1997, LB 364, § 1; Laws 1998, LB 900, § 1; Laws 1998, LB 1266, § 1; Laws 2002, Third Spec. Sess., LB 1, § 1. Annotations1. Sentencing2. Miscellaneous1. SentencingA sentence of imprisonment for a term of 60 years to life for second degree murder is not excessive in the absence of an abuse of judicial discretion. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).When a flat sentence of "life imprisonment" is imposed and no minimum sentence is stated, by operation of law, the minimum sentence for parole eligibility purposes is the minimum imposed by law under the statute. State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000).The Nebraska sentencing statutes do not require that the minimum sentence be for a different term than the maximum sentence. State v. Cook, 251 Neb. 781, 559 N.W.2d 471 (1997).County jail was not under the jurisdiction of the Department of Correctional Services; therefore, it was plain error for district court to sentence defendant convicted of Class III felony to term in county jail. State v. Wilcox, 239 Neb. 882, 479 N.W.2d 134 (1992).Pursuant to subsection (2) of this section, the district court lacks statutory authority to sentence a defendant convicted of a Class III felony to a term of imprisonment in the county jail. State v. Wren, 234 Neb. 291, 450 N.W.2d 684 (1990).Under the provisions of this section and section 28-304(2), a court is not authorized to sentence one convicted of second degree murder to an indeterminate sentence, but must sentence such a person to imprisonment either for life or for a definite term of not less than 10 years. State v. Ward, 226 Neb. 809, 415 N.W.2d 151 (1987).Where an indeterminate sentence is pronounced, the minimum limit fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term. Where maximum allowable sentence is five years, an indeterminate sentence of two to five years is excessive and must be modified to a sentence of not less than one year eight months nor more than five years. State v. Bosak, 207 Neb. 693, 300 N.W.2d 201 (1981).2. MiscellaneousThe 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).The change of the minimum penalty for first degree murder from life imprisonment to life imprisonment without parole is presumed to be an increase in the minimum penalty that cannot be applied to acts committed prior to the change without violating constitutional ex post facto principles. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).This section does not impose a mandatory minimum term of incarceration for persons convicted of a Class II felony. State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001).
