State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter29 > 29-2204

29-2204. Indeterminate sentence; court; duties; study of offender; when; costs; defendant under eighteen years of age; disposition.(1) Except when a term of life imprisonment without parole is required by law, in imposing an indeterminate sentence upon an offender the court shall:(a)(i) Until July 1, 1998, fix the minimum and maximum limits of the sentence to be served within the limits provided by law, except that when a maximum limit of life is imposed by the court for a Class IB felony, the minimum limit may be any term of years not less than the statutory mandatory minimum; and(ii) Beginning July 1, 1998:(A) Fix the minimum and maximum limits of the sentence to be served within the limits provided by law for any class of felony other than a Class IV felony, except that when a maximum limit of life is imposed by the court for a Class IB felony, the minimum limit may be any term of years not less than the statutory mandatory minimum. If the criminal offense is a Class IV felony, the court shall fix the minimum and maximum limits of the sentence, but 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 and the maximum limit shall not be greater than the maximum provided by law; or(B) Impose a definite term of years, in which event the maximum term of the sentence shall be the term imposed by the court and the minimum term shall be the minimum sentence provided by law;(b) 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(c) 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.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. 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.(2)(a) 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. 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 subsection (1) of this section. The term of the sentence shall run from the date of original commitment under this subsection.(b) 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 subsection 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.(3) 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. Prior to making a disposition which commits the juvenile to the Office of Juvenile Services, the court shall order the juvenile to be evaluated by the office if the juvenile has not had an evaluation within the past twelve months. SourceG.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. Cross ReferencesNebraska Juvenile Code, see section 43-2,129. Annotations1. Minimum sentence2. Indeterminate sentence3. Cumulative sentence4. Solitary confinement5. Miscellaneous1. Minimum sentenceThere 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).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 sentenceA 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 sentenceWhere 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 confinementTrial 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. MiscellaneousThis 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).