LB338 LB338
2023 2023
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 338
Introduced by McKinney, 11.
Read first time January 12, 2023
Committee: Judiciary
1 A BILL FOR AN ACT relating to criminal justice; to amend sections 29-426,
2 29-908, 29-2262.06, 29-2266, 29-2266.01, 29-2266.02, 29-2267,
3 29-2270, 29-2284, 43-3301, 43-3314, 43-3318, and 83-1,110.03,
4 Reissue Revised Statutes of Nebraska, and sections 28-105, 29-901,
5 29-2268, 29-2278, 83-1,107.01, 83-1,119, 83-1,121, 83-1,122, and
6 83-1,135.02, Revised Statutes Cumulative Supplement, 2022; to
7 require open court hours in certain counties; to change provisions
8 relating to mandatory minimum sentences, penalties and warrants for
9 failure to appear, and use of electronic or global-positioning
10 monitoring or home confinement during pretrial release; to require
11 sentencing credit for time monitored or under home confinement; to
12 provide for non-imprisonment sentences for caregivers as prescribed;
13 to automatically suspend child support obligations for defendants
14 sentenced to one or more years' imprisonment; to change provisions
15 relating to probation sanctions and revocations, suspension of
16 operator's licenses under the License Suspension Act, and parole
17 sanctions and revocations; to define and redefine terms; to provide
18 for applicability; to harmonize provisions; and to repeal the
19 original sections.
20 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 28-105, Revised Statutes Cumulative Supplement,
2 2022, is amended to read:
3 28-105 (1) For purposes of the Nebraska Criminal Code and any
4 statute passed by the Legislature after the date of passage of the code,
5 felonies are divided into ten classes which are distinguished from one
6 another by the following penalties which are authorized upon conviction:
7 Class I felony Death
8 Class IA felony Life imprisonment
9 Class IB felony Maximum—life imprisonment
10 Minimum—twenty years imprisonment
11 Class IC felony Maximum—fifty years imprisonment
12 Mandatory minimum—five years imprisonment
13 (except as provided in section 7 of this act)
14 Class ID felony Maximum—fifty years imprisonment
15 Mandatory minimum—three years imprisonment
16 (except as provided in section 7 of this act)
17 Class II felony Maximum—fifty years imprisonment
18 Minimum—one year imprisonment
19 Class IIA felony Maximum—twenty years imprisonment
20 Minimum—none
21 Class III felony Maximum—four years imprisonment and two years
22 post-release supervision or
23 twenty-five thousand dollars fine, or both
24 Minimum—none for imprisonment and nine months
25 post-release supervision if imprisonment is imposed
26 Class IIIA felony Maximum—three years imprisonment
27 and eighteen months post-release supervision or
28 ten thousand dollars fine, or both
29 Minimum—none for imprisonment and nine months
30 post-release supervision if imprisonment is imposed
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1 Class IV felony Maximum—two years imprisonment and twelve
2 months post-release supervision or
3 ten thousand dollars fine, or both
4 Minimum—none for imprisonment and none for
5 post-release supervision
6 (2) All sentences for maximum terms of imprisonment for one year or
7 more for felonies shall be served in institutions under the jurisdiction
8 of the Department of Correctional Services. All sentences for maximum
9 terms of imprisonment of less than one year shall be served in the county
10 jail.
11 (3) Nothing in this section shall limit the authority granted in
12 sections 29-2221 and 29-2222 to increase sentences for habitual
13 criminals.
14 (4) A person convicted of a felony for which a mandatory minimum
15 sentence is prescribed shall not be eligible for probation.
16 (5) All sentences of post-release supervision shall be served under
17 the jurisdiction of the Office of Probation Administration and shall be
18 subject to conditions imposed pursuant to section 29-2262 and subject to
19 sanctions authorized pursuant to section 29-2266.02.
20 (6) Any person who is sentenced to imprisonment for a Class I, IA,
21 IB, IC, ID, II, or IIA felony and sentenced concurrently or consecutively
22 to imprisonment for a Class III, IIIA, or IV felony shall not be subject
23 to post-release supervision pursuant to subsection (1) of this section.
24 (7) Any person who is sentenced to imprisonment for a Class III,
25 IIIA, or IV felony committed prior to August 30, 2015, and sentenced
26 concurrently or consecutively to imprisonment for a Class III, IIIA, or
27 IV felony committed on or after August 30, 2015, shall not be subject to
28 post-release supervision pursuant to subsection (1) of this section.
29 (8) The changes made to the penalties for Class III, IIIA, and IV
30 felonies by Laws 2015, LB605, do not apply to any offense committed prior
31 to August 30, 2015, as provided in section 28-116.
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1 Sec. 2. Section 29-426, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 29-426 (1) Subject to subsections (2) and (4) of this section, any
4 Any person failing to appear or otherwise comply with the command of a
5 citation shall be guilty of a misdemeanor and shall, upon conviction
6 thereof, be punished by a fine of not more than five hundred dollars, or
7 by imprisonment in the county jail for not more than three months, or by
8 both such fine and imprisonment.
9 (2) If the citation is for a minor offense, a person shall not be
10 guilty of violating subsection (1) of this section if the person appears
11 before the court within seven days after the date in the citation. Within
12 such seven-day period, the court shall not issue a warrant for the arrest
13 of such person for such failure to appear, or shall cancel any warrant
14 already issued, and shall not revoke any bond that has been deposited
15 with the clerk of the court, if such person notifies the court that such
16 person will appear within such period.
17 (3) For purposes of this section, minor offense means any violation
18 of the criminal laws of this state or any political subdivision of this
19 state including, but not limited to, any misdemeanor, infraction, traffic
20 infraction, violation of a city or village ordinance, or violation of a
21 county resolution, but shall not include any felony or Class I
22 misdemeanor.
23 (4) A person shall not be prosecuted for a violation of this section
24 if section 6 of this act bars prosecution because the person has appeared
25 during open court hours as provided in such section.
26 Sec. 3. Section 29-901, Revised Statutes Cumulative Supplement,
27 2022, is amended to read:
28 29-901 (1) Except as provided in subsection (2) of this section, any
29 bailable defendant shall be ordered released from custody pending
30 judgment on his or her personal recognizance unless the judge determines
31 in the exercise of his or her discretion that such a release will not
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1 reasonably assure the appearance of the defendant as required or that
2 such a release could jeopardize the safety and maintenance of evidence or
3 the safety of victims, witnesses, or other persons in the community.
4 (2)(a) This subsection applies to any bailable defendant who is
5 charged with one or more Class IIIA, IV, or V misdemeanors or violations
6 of city or county ordinances, except when:
7 (i) The victim is an intimate partner as defined in section 28-323;
8 or
9 (ii) The defendant is charged with one or more violations of section
10 60-6,196 or 60-6,197 or city or village ordinances enacted in conformance
11 with section 60-6,196 or 60-6,197.
12 (b) Any bailable defendant described in this subsection shall be
13 ordered released from custody pending judgment on his or her personal
14 recognizance or under other conditions of release, other than payment of
15 a bond, unless:
16 (i) The defendant has previously failed to appear in the instant
17 case or any other case in the previous six months;
18 (ii) The judge determines in the exercise of his or her discretion
19 that such a release will not reasonably assure the appearance of the
20 defendant as required or that such a release could jeopardize the safety
21 and maintenance of evidence or the safety of the defendant, victims,
22 witnesses, or other persons; and
23 (iii) The defendant was arrested pursuant to a warrant.
24 (3) The court shall consider all methods of bond and conditions of
25 release to avoid pretrial incarceration. If the judge determines that the
26 defendant shall not be released on his or her personal recognizance, the
27 judge shall consider the defendant's financial ability to pay a bond and
28 shall impose the least onerous of the following conditions that will
29 reasonably assure the defendant's appearance or that will eliminate or
30 minimize the risk of harm to others or the public at large:
31 (a) Place the defendant in the custody of a designated person or
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1 organization agreeing to supervise the defendant;
2 (b) Subject to section 4 of this act, place Place restrictions on
3 the travel, association, or place of abode of the defendant during the
4 period of such release; or
5 (c) Require, at the option of any bailable defendant, either of the
6 following:
7 (i) The execution of an appearance bond in a specified amount and
8 the deposit with the clerk of the court in cash of a sum not to exceed
9 ten percent of the amount of the bond, ninety percent of such deposit to
10 be returned to the defendant upon the performance of the appearance or
11 appearances and ten percent to be retained by the clerk as appearance
12 bond costs, except that when no charge is subsequently filed against the
13 defendant or if the charge or charges which are filed are dropped before
14 the appearance of the defendant which the bond was to assure, the entire
15 deposit shall be returned to the defendant. If the bond is subsequently
16 reduced by the court after the original bond has been posted, no
17 additional appearance bond costs shall be retained by the clerk. The
18 difference in the appearance bond costs between the original bond and the
19 reduced bond shall be returned to the defendant. In no event shall the
20 deposit be less than twenty-five dollars. Whenever jurisdiction is
21 transferred from a court requiring an appearance bond under this
22 subdivision to another state court, the transferring court shall transfer
23 the ninety percent of the deposit remaining after the appearance bond
24 costs have been retained. No further costs shall be levied or collected
25 by the court acquiring jurisdiction; or
26 (ii) The execution of a bail bond with such surety or sureties as
27 shall seem proper to the judge or, in lieu of such surety or sureties, at
28 the option of such person, a cash deposit of such sum so fixed,
29 conditioned for his or her appearance before the proper court, to answer
30 the offense with which he or she may be charged and to appear at such
31 times thereafter as may be ordered by the proper court. The cash deposit
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1 shall be returned to the defendant upon the performance of all
2 appearances.
3 (4) If the court requires the defendant to execute an appearance
4 bond requiring the defendant to post money or requires the defendant to
5 execute a bail bond, the court shall appoint counsel for the defendant if
6 the court finds the defendant is financially unable to pay the amount
7 required and is indigent.
8 (5) If the amount of bail is deemed insufficient by the court before
9 which the offense is pending, the court may order an increase of such
10 bail and the defendant shall provide the additional undertaking, written
11 or cash, to secure his or her release. All recognizances in criminal
12 cases shall be in writing and be continuous from term to term until final
13 judgment of the court in such cases and shall also extend, when the court
14 has suspended execution of sentence for a limited time, as provided in
15 section 29-2202, or, when the court has suspended execution of sentence
16 to enable the defendant to apply for a writ of error to the Supreme Court
17 or Court of Appeals, as provided in section 29-2301, until the period of
18 suspension has expired. When two or more indictments or informations are
19 returned against the same person at the same term of court, the
20 recognizance given may be made to include all offenses charged therein.
21 Each surety on such recognizance shall be required to justify under oath
22 in a sum twice the amount of such recognizance and give the description
23 of real estate owned by him or her of a value above encumbrance equal to
24 the amount of such justification and shall name all other cases pending
25 in which he or she is a surety. No one shall be accepted as surety on
26 recognizance aggregating a sum in excess of his or her equity in the real
27 estate, but such recognizance shall not constitute a lien on the real
28 estate described therein until judgment is entered thereon against such
29 surety.
30 (6) In order to assure compliance with the conditions of release
31 referred to in subsection (3) of this section, the court may order a
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1 defendant to be supervised by a person, an organization, or a pretrial
2 services program approved by the county board. A court shall waive any
3 fees or costs associated with the conditions of release or supervision if
4 the court finds the defendant is unable to pay for such costs.
5 Eligibility for release or supervision by such pretrial release program
6 shall under no circumstances be conditioned upon the defendant's ability
7 to pay. While under supervision of an approved entity, and in addition to
8 the conditions of release referred to in subsection (3) of this section,
9 the court may impose the following conditions:
10 (a) Periodic telephone contact by the defendant with the
11 organization or pretrial services program;
12 (b) Periodic office visits by the defendant to the organization or
13 pretrial services program;
14 (c) Periodic visits to the defendant's home by the organization or
15 pretrial services program;
16 (d) Mental health or substance abuse treatment for the defendant,
17 including residential treatment, if the defendant consents or agrees to
18 the treatment;
19 (e) Periodic alcohol or