2015 Nebraska Revised Statutes
Chapter 28 - CRIMES AND PUNISHMENTS
28-105 See note regarding referendum petition following the source at the end of the section. Felonies; classification of penalties; sentences; where served; eligibility for probation; post-release supervision; applicability of changes to penalties.

28-105. See note regarding referendum petition following the source at the end of the section. Felonies; classification of penalties; sentences; where served; eligibility for probation; post-release supervision; applicability of changes to penalties.

(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 IA felony	Life imprisonment
Class IB felony	Maximum — life imprisonment
	Minimum — twenty years imprisonment
Class IC felony	Maximum — fifty years imprisonment
	Mandatory minimum — five years imprisonment
Class ID felony	Maximum — fifty years imprisonment
	Mandatory minimum — three years imprisonment
Class II felony	Maximum — fifty years imprisonment
	Minimum — one year imprisonment
Class IIA felony	Maximum — twenty years imprisonment
	Minimum — none
Class III felony	Maximum — four years imprisonment and two years
	post-release supervision or
	twenty-five thousand dollars fine, or both
	Minimum — none for imprisonment and nine months
	post-release supervision if imprisonment is imposed
Class IIIA felony	Maximum — three years imprisonment
	and eighteen months post-release supervision or
	ten thousand dollars fine, or both
	Minimum — none for imprisonment and nine months
	post-release supervision if imprisonment is imposed
Class IV felony	Maximum — two years imprisonment and twelve
	months post-release supervision or
	ten thousand dollars fine, or both
	Minimum — none for imprisonment and nine months
	post-release supervision if imprisonment is imposed

(2)(a) All sentences for maximum terms of imprisonment for one year or more for felonies shall be served in institutions under the jurisdiction of the Department of Correctional Services.

(b) All sentences for maximum terms of imprisonment of less than one year shall be served in the county jail.

(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.

(5) All sentences of post-release supervision shall be served under the jurisdiction of the Office of Probation Administration and shall be subject to conditions imposed pursuant to section 29-2262 and subject to sanctions authorized pursuant to section 29-2266.

(6) Any person who is sentenced to imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony and sentenced concurrently or consecutively to imprisonment for a Class III, IIIA, or IV felony shall not be subject to post-release supervision pursuant to subsection (1) of this section.

(7) The changes made to the penalties for Class III, IIIA, and IV felonies by Laws 2015, LB605, do not apply to any offense committed prior to August 30, 2015, as provided in section 28-116.

Source

• Laws 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;
• Laws 2011, LB12, § 1;
• Laws 2015, LB268, § 6;
• Laws 2015, LB605, § 6.
• Effective Date: August 30, 2015
• Note: Section 28-105 was amended by Laws 2015, LB 268, section 6, and Laws 2015, LB 605, section 6. According to Article III, section 3, of the Constitution of Nebraska, the provisions of LB 268 have been suspended due to the certification by the Secretary of State of sufficient signatures on referendum petitions to suspend the taking effect of such act until the same has been approved by the electors of the state. The question will be submitted to the voters at the November 2016 general election. See Laws 2015, LB 605, section 6, for the amended version of section 28-105.
• Note: The Revisor of Statutes has pursuant to section 49-769 correlated LB268, section 6, with LB605, section 6, to reflect all amendments.

Annotations

• 1. Sentencing

• 2. Miscellaneous

• 1. Sentencing

• A 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. 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).

• 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).

• A defendant found guilty of a Class III felony does not have an equal protection right to a Specialized Substance Abuse Supervision evaluation when such defendant fails to show that he was similarly situated to felony drug offenders who were eligible for the program. State v. Borges, 18 Neb. App. 322, 791 N.W.2d 336 (2010).

• The geographic limitations on the Specialized Substance Abuse Supervision program do not violate the Equal Protection Clause because the program is rationally related to the State's interests. State v. Borges, 18 Neb. App. 322, 791 N.W.2d 336 (2010).