2006 Nebraska Revised Statutes - § 28-1205 — Using a deadly weapon to commit a felony; penalty; separate and distinct offense.

Section 28-1205
Using a deadly weapon to commit a felony; penalty; separate and distinct offense.

(1) Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state or who unlawfully possesses a firearm, a knife, brass or iron knuckles, or any other deadly weapon during the commission of any felony which may be prosecuted in a court of this state commits the offense of using a deadly weapon to commit a felony.

(2)(a) Use of a deadly weapon other than a firearm to commit a felony is a Class III felony.

(b) Use of a deadly weapon which is a firearm to commit a felony is a Class II felony.

(3) The crimes defined in this section shall be treated as separate and distinct offenses from the felony being committed, and sentences imposed under this section shall be consecutive to any other sentence imposed.

Source:

Laws 1977, LB 38, § 237

Laws 1995, LB 371, § 8

Annotations:

The consecutive sentence requirement of this statute is constitutional. State v. Stratton, 220 Neb. 854, 374 N.W.2d 31 (1985).2. Deadly weapon

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).3. Evidence

Evidence 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).4. Generally

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).5. Lesser-included offense

Use 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. Sentencing

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 felony

The 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).

~Reissue Revised Statutes of Nebraska