LB352 LB352
2023 2023
LEGISLATURE OF NEBRASKA
ONE HUNDRED EIGHTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 352
Introduced by Wayne, 13.
Read first time January 12, 2023
Committee: Judiciary
1 A BILL FOR AN ACT relating to criminal justice; to amend sections
2 24-1302, 28-116, 28-507, 28-518, 29-2204.02, 29-2221, 29-2263,
3 29-2269, 29-2281, 29-3603, 50-434, 71-5661, 71-5662, 71-5663,
4 71-5665, 71-5666, 71-5669.01, and 83-1,110, Reissue Revised Statutes
5 of Nebraska, and sections 28-101, 28-105, 28-416, 28-1351, 28-1354,
6 29-2204, 71-5668, 83-1,100.02, 83-1,111, 83-1,114, 83-1,122.01,
7 83-1,135, and 83-1,135.02, Revised Statutes Cumulative Supplement,
8 2022; to change provisions regarding problem solving courts,
9 mandatory minimums, penalties and provisions relating to controlled
10 substances, theft, burglary, sentencing, set asides, restitution,
11 pretrial diversion, and parole; to provide for applicability; to
12 state legislative intent regarding appropriations; to create pilot
13 programs relating to courts, probation, and parole; to create the
14 Justice Reinvestment Oversight Task Force; to terminate the
15 Committee on Justice Reinvestment Oversight; to provide for parole
16 for geriatric offenders; to define terms; to provide duties for
17 courts, the probation administrator, the Board of Parole, the
18 Division of Parole Supervision, the State Court Administrator, and
19 the Department of Correctional Services; to provide for additional
20 benefits under the Rural Health Systems and Professional Incentive
21 Act; to harmonize provisions; and to repeal the original sections.
22 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 24-1302, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 24-1302 (1) For purposes of this section, problem solving court
4 means a drug, veterans, mental health, driving under the influence,
5 reentry, young adult, or other problem solving court.
6 (2) A district court may establish a problem solving court. A
7 problem solving court shall function within the existing structure of the
8 court system. The goals of a problem solving court shall be consistent
9 with any relevant standards adopted by the United States Department of
10 Justice and the National Association of Drug Court Professionals, as such
11 standards existed on January 1, 2023.
12 (3) An individual may participate in a problem solving court through
13 a pretrial diversion program, as a condition of probation, as a response
14 to a technical violation of parole, as a sentence imposed by a court, or
15 as otherwise provided by the Supreme Court's rules.
16 (4) Problem (1) Drug, veterans, mental health, driving under the
17 influence, reentry, and other problem solving courts shall be subject to
18 rules which shall be promulgated by the Supreme Court for procedures to
19 be implemented in the administration of such courts.
20 (5) (2) It is the intent of the Legislature that funds be
21 appropriated separately to the Supreme Court such that each judicial
22 district may operate at least one drug, veterans, mental health, driving
23 under the influence, reentry, and young adult problem solving court. The
24 State Court Administrator shall ensure that each judicial district has at
25 least one of such courts by January 1, 2024 for each of the problem
26 solving courts to carry out this section and section 24-1301.
27 (6) The State Court Administrator shall track and evaluate outcomes
28 of problem solving courts. On or before June 1, 2024, and on or before
29 each June 1 thereafter, the State Court Administrator shall
30 electronically submit a report to the Legislature regarding the impact of
31 problem solving courts on recidivism rates in the state. The report shall
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1 also include rates of return to court and program completion. The report
2 shall identify judicial districts that are underserved by problem solving
3 courts and what services or funding are needed to properly serve such
4 districts.
5 Sec. 2. (1) The State Court Administrator shall create a pilot
6 program to utilize physical space and information technology resources
7 within Nebraska courts to serve as points of access for virtual
8 behavioral health services for court-involved individuals.
9 (2) The pilot program shall be limited to a single probation
10 district. Such district shall be chosen by the State Court Administrator
11 in consultation with the probation administrator.
12 (3) The purpose of the program is to provide access to safe,
13 confidential, and reliable behavioral health treatment via telehealth for
14 Nebraskans involved with the criminal justice system, either as
15 defendants, probationers, or victims in a criminal proceeding.
16 (4) On or before June 1, 2024, the State Court Administrator shall
17 electronically submit a report to the Judiciary Committee of the
18 Legislature regarding the pilot program.
19 Sec. 3. Section 28-101, Revised Statutes Cumulative Supplement,
20 2022, is amended to read:
21 28-101 Sections 28-101 to 28-1357, 28-1601 to 28-1603, and 28-1701
22 and section 6 of this act shall be known and may be cited as the Nebraska
23 Criminal Code.
24 Sec. 4. Section 28-105, Revised Statutes Cumulative Supplement,
25 2022, is amended to read:
26 28-105 (1) For purposes of the Nebraska Criminal Code and any
27 statute passed by the Legislature after the date of passage of the code,
28 felonies are divided into ten classes which are distinguished from one
29 another by the following penalties which are authorized upon conviction:
30 Class I felony Death
31 Class IA felony Life imprisonment
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1 Class IB felony Maximum—life imprisonment
2 Minimum—twenty years imprisonment
3 Class IC felony Maximum—fifty years imprisonment
4 Mandatory minimum—five years imprisonment
5 (except as provided in section 6 of this act)
6 Class ID felony Maximum—fifty years imprisonment
7 Mandatory minimum—three years imprisonment
8 (except as provided in section 6 of this act)
9 Class II felony Maximum—fifty years imprisonment
10 Minimum—one year imprisonment
11 Class IIA felony Maximum—twenty years imprisonment
12 Minimum—none
13 Class III felony Maximum—four years imprisonment and two years
14 post-release supervision or
15 twenty-five thousand dollars fine, or both
16 Minimum—none for imprisonment and nine months
17 post-release supervision if imprisonment is imposed
18 Class IIIA felony Maximum—three years imprisonment
19 and eighteen months post-release supervision or
20 ten thousand dollars fine, or both
21 Minimum—none for imprisonment and nine months
22 post-release supervision if imprisonment is imposed
23 Class IV felony Maximum—two years imprisonment and twelve
24 months post-release supervision or
25 ten thousand dollars fine, or both
26 Minimum—none for imprisonment and none for
27 post-release supervision
28 (2) All sentences for maximum terms of imprisonment for one year or
29 more for felonies shall be served in institutions under the jurisdiction
30 of the Department of Correctional Services. All sentences for maximum
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1 terms of imprisonment of less than one year shall be served in the county
2 jail.
3 (3) Nothing in this section shall limit the authority granted in
4 sections 29-2221 and 29-2222 to increase sentences for habitual
5 criminals.
6 (4) A person convicted of a felony for which a mandatory minimum
7 sentence is prescribed shall not be eligible for probation.
8 (5) All sentences of post-release supervision shall be served under
9 the jurisdiction of the Office of Probation Administration and shall be
10 subject to conditions imposed pursuant to section 29-2262 and subject to
11 sanctions authorized pursuant to section 29-2266.02.
12 (6) Any person who is sentenced to imprisonment for a Class I, IA,
13 IB, IC, ID, II, or IIA felony and sentenced concurrently or consecutively
14 to imprisonment for a Class III, IIIA, or IV felony shall not be subject
15 to post-release supervision pursuant to subsection (1) of this section.
16 (7) Any person who is sentenced to imprisonment for a Class III,
17 IIIA, or IV felony committed prior to August 30, 2015, and sentenced
18 concurrently or consecutively to imprisonment for a Class III, IIIA, or
19 IV felony committed on or after August 30, 2015, shall not be subject to
20 post-release supervision pursuant to subsection (1) of this section.
21 (8) The changes made to the penalties for Class III, IIIA, and IV
22 felonies by Laws 2015, LB605, do not apply to any offense committed prior
23 to August 30, 2015, as provided in section 28-116.
24 Sec. 5. Section 28-116, Reissue Revised Statutes of Nebraska, is
25 amended to read:
26 28-116 (1) The changes made to the sections listed in this
27 subsection section by Laws 2015, LB605, shall not apply to any offense
28 committed prior to August 30, 2015. Any such offense shall be construed
29 and punished according to the provisions of law existing at the time the
30 offense was committed. For purposes of this subsection section, an
31 offense shall be deemed to have been committed prior to August 30, 2015,
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1 if any element of the offense occurred prior to such date. The following
2 sections are subject to this provision: Sections 9-262, 9-352, 9-434,
3 9-652, 23-135.01, 28-105, 28-106, 28-201, 28-204, 28-305, 28-306, 28-309,
4 28-310.01, 28-311, 28-311.01, 28-311.04, 28-311.08, 28-320, 28-322.02,
5 28-322.03, 28-322.04, 28-323, 28-393, 28-394, 28-397, 28-416, 28-504,
6 28-507, 28-514, 28-518, 28-519, 28-603, 28-604, 28-611, 28-611.01,
7 28-620, 28-621, 28-622, 28-627, 28-631, 28-638, 28-639, 28-703, 28-707,
8 28-813.01, 28-912, 28-932, 28-1005, 28-1009, 28-1102, 28-1103, 28-1104,
9 28-1212.03, 28-1222, 28-1224, 28-1344, 28-1345, 28-1463.05, 29-1816,
10 29-2204, 29-2260, 29-2308, 29-4011, 60-6,197.03, 60-6,197.06, 68-1017,
11 68-1017.01, 71-2228, and 71-2229.
12 (2) Except as otherwise provided in the sections listed in this
13 subsection, the changes made to the sections listed in this subsection by
14 this legislative bill shall apply to offenses committed before, on, or
15 after the effective date of this act for which a final judgment has not
16 been entered as of the effective date of this act. The following sections
17 are subject to this provision: Sections 28-105, 28-416, 28-507, 28-518,
18 28-1351, 28-1354, 29-2204, 29-2204.02, and 29-2221 and sections 6 and 14
19 of this act.
20 Sec. 6. A mandatory minimum sentence shall not be imposed for a
21 violation of section 28-416. The minimum term of imprisonment for a
22 violation of section 28-416 shall not be a mandatory minimum but a
23 minimum term only.
24 Sec. 7. Section 28-416, Revised Statutes Cumulative Supplement,
25 2022, is amended to read:
26 28-416 (1) Except as authorized by the Uniform Controlled Substances
27 Act, it shall be unlawful for any person knowingly or intentionally: (a)
28 To manufacture, distribute, deliver, dispense, or possess with intent to
29 manufacture, distribute, deliver, or dispense a controlled substance; or
30 (b) to create, distribute, or possess with intent to distribute a
31 counterfeit controlled substance.
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1 (2) Except as provided in subsections (4), (5), (7), (8), (9), and
2 (10) of this section, any person who violates subsection (1) of this
3 section with respect to: (a) A controlled substance classified in
4 Schedule I, II, or III of section 28-405 which is an exceptionally
5 hazardous drug shall be guilty of a Class II felony; (b) any other
6 controlled substance classified in Schedule I, II, or III of section
7 28-405 shall be guilty of a Class IIA felony; or (c) a controlled
8 substance classified in Schedule IV or V of section 28-405 shall be
9 guilty of a Class IIIA felony.
10 (3)(a) (3) A person knowingly or intentionally possessing a
11 controlled substance, except marijuana or any substance containing a
12 quantifiable amount of the substances, chemicals, or compounds described,
13 defined, or delineated in subdivision (c)(26) of Schedule I of section
14 28-405, unless such substance was obtained directly or pursuant to a
15 medical order issued by a practitioner authorized to prescribe while
16 acting in the course of his or her professional practice, or except as
17 otherwise authorized by the act, shall:
18 (i) Except as provided in subdivision (3)(a)(iii) of this section,
19 if the total weight of the substance is one-half of one gram or less, be
20 guilty of a Class I misdemeanor;
21 (ii) If the total weight of the substance is more than one-half of
22 one gram, be guilty of a Class IV felony; or
23 (iii) If the substance is scheduled in section 28-405 and is
24 fentanyl, a fentanyl analogue, or a compound structurally derived from
25 fentanyl, be guilty of a Class IV felony.
26 (b) A person shall not be in violation of this subsection if section
27 28-472 or 28-1701 applies.
28 (4)(a) Except as authorized by the Uniform Controlled Substances
29 Act, any person eighteen years of age or older who knowingly or
30 intentionally manufactures, distributes, delivers, dispenses, or
31 possesses with intent to manufacture, distribute, deliver, or dispense a
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1 controlled substance or a counterfeit controlled substance (i) to a
2 person under the age of eighteen years, (ii) in, on, or within one
3 thousand feet of the real property comprising a public or private
4 elementary, vocational, or secondary school, a community college, a
5 public or private college, junior college, or university, or a
6 playground, or (iii) within one hundred feet of a public or private youth
7 center, public swimming pool, or video arcade facility shall be punished
8 by the next higher penalty classification than the penalty prescribed in
9 subsection (2), (7), (8), (9), or (10) of this section, depending upon
10 the controlled substance involved, for the first violation and for a
11 second or s