LB1181 LB1181
2020 2020
LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 1181
Introduced by Wayne, 13.
Read first time January 23, 2020
Committee: Judiciary
1 A BILL FOR AN ACT relating to crimes and offenses; to amend section
2 29-2221, Reissue Revised Statutes of Nebraska, and sections 28-101
3 and 28-105, Revised Statutes Supplement, 2019; to adopt the Fair
4 Sentencing Act; to allow courts to impose sentences without
5 mandatory minimums for certain controlled substance offenses; to
6 prohibit holding a defendant in custody awaiting trial beyond a
7 prescribed period; to define terms; to exclude certain nonviolent
8 felonies from the habitual criminal enhancement; to harmonize
9 provisions; and to repeal the original sections.
10 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 28-101, Revised Statutes Supplement, 2019, is
2 amended to read:
3 28-101 Sections 28-101 to 28-1357 and 28-1601 to 28-1603 and
4 sections 3 and 4 of this act shall be known and may be cited as the
5 Nebraska Criminal Code.
6 Sec. 2. Section 28-105, Revised Statutes Supplement, 2019, is
7 amended to read:
8 28-105 (1) For purposes of the Nebraska Criminal Code and any
9 statute passed by the Legislature after the date of passage of the code,
10 felonies are divided into ten classes which are distinguished from one
11 another by the following penalties which are authorized upon conviction:
12 Class I felony Death
13 Class IA felony Life imprisonment
14 Class IB felony Maximum—life imprisonment
15 Minimum—twenty years imprisonment
16 Class IC felony Maximum—fifty years imprisonment
17 Mandatory minimum—five years imprisonment
18 (except as provided in section 3 of this act)
19 Class ID felony Maximum—fifty years imprisonment
20 Mandatory minimum—three years imprisonment
21 (except as provided in section 3 of this act)
22 Class II felony Maximum—fifty years imprisonment
23 Minimum—one year imprisonment
24 Class IIA felony Maximum—twenty years imprisonment
25 Minimum—none
26 Class III felony Maximum—four years imprisonment and two years
27 post-release supervision or
28 twenty-five 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 IIIA felony Maximum—three years imprisonment
2 and eighteen months post-release supervision or
3 ten thousand dollars fine, or both
4 Minimum—none for imprisonment and nine months
5 post-release supervision if imprisonment is imposed
6 Class IV felony Maximum—two years imprisonment and twelve
7 months post-release supervision or
8 ten thousand dollars fine, or both
9 Minimum—none for imprisonment and none for
10 post-release supervision
11 (2) All sentences for maximum terms of imprisonment for one year or
12 more for felonies shall be served in institutions under the jurisdiction
13 of the Department of Correctional Services. All sentences for maximum
14 terms of imprisonment of less than one year shall be served in the county
15 jail.
16 (3) Nothing in this section shall limit the authority granted in
17 sections 29-2221 and 29-2222 to increase sentences for habitual
18 criminals.
19 (4) A person convicted of a felony for which a mandatory minimum
20 sentence is prescribed shall not be eligible for probation.
21 (5) All sentences of post-release supervision shall be served under
22 the jurisdiction of the Office of Probation Administration and shall be
23 subject to conditions imposed pursuant to section 29-2262 and subject to
24 sanctions authorized pursuant to section 29-2266.02.
25 (6) Any person who is sentenced to imprisonment for a Class I, IA,
26 IB, IC, ID, II, or IIA felony and sentenced concurrently or consecutively
27 to imprisonment for a Class III, IIIA, or IV felony shall not be subject
28 to post-release supervision pursuant to subsection (1) of this section.
29 (7) Any person who is sentenced to imprisonment for a Class III,
30 IIIA, or IV felony committed prior to August 30, 2015, and sentenced
31 concurrently or consecutively to imprisonment for a Class III, IIIA, or
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1 IV felony committed on or after August 30, 2015, shall not be subject to
2 post-release supervision pursuant to subsection (1) of this section.
3 (8) The changes made to the penalties for Class III, IIIA, and IV
4 felonies by Laws 2015, LB605, do not apply to any offense committed prior
5 to August 30, 2015, as provided in section 28-116.
6 Sec. 3. (1) This section applies to a sentence for a violation of
7 section 28-416 or a violation of section 28-202 with a violation of
8 section 28-416 as the underlying offense which is classified as a felony
9 for which a mandatory minimum sentence is authorized by section 28-105.
10 (2) If the court, upon review of a presentence investigation report
11 and consideration of the factors set forth in section 29-2260, finds that
12 the imposition of a mandatory minimum sentence as prescribed for a
13 violation described in subsection (1) of this section would result in a
14 sentence which would not serve the public interest, then the court may
15 impose a sentence for which the otherwise applicable mandatory minimum
16 term is a minimum term only. The court shall set forth its determination
17 under this section in writing, with specific findings of fact and the
18 reasons for its determination.
19 Sec. 4. A defendant charged with any offense shall not be held in
20 custody awaiting trial on such offense for a period of time longer than
21 the maximum possible sentence of imprisonment authorized for such
22 offense. On the next judicial day after expiration of such deadline, the
23 defendant shall be released on such defendant's personal recognizance.
24 Sec. 5. Section 29-2221, Reissue Revised Statutes of Nebraska, is
25 amended to read:
26 29-2221 (1) Except as provided in subsection (2) of this section,
27 whoever Whoever has been twice convicted of a crime, sentenced, and
28 committed to prison, in this or any other state or by the United States
29 or once in this state and once at least in any other state or by the
30 United States, for terms of not less than one year each shall, upon
31 conviction of a felony committed in this state, be deemed to be a
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1 habitual criminal and shall be punished by imprisonment in a Department
2 of Correctional Services adult correctional facility for a mandatory
3 minimum term of ten years and a maximum term of not more than sixty
4 years, except that:
5 (a) If the felony committed is in violation of section 28-303,
6 28-304, 28-308, 28-313, 28-319, 28-319.01, 28-502, 28-929, or 28-1222,
7 and at least one of the habitual criminal's prior felony convictions was
8 for a violation of one of the sections listed in this subdivision or of a
9 similar statute in another state or of the United States, the mandatory
10 minimum term shall be twenty-five years and the maximum term not more
11 than sixty years;
12 (b) If the felony committed is in violation of subsection (3) of
13 section 28-306 and at least one of the prior convictions is in violation
14 of subsection (3) of section 28-306 and the other is in violation of one
15 of the sections set forth in subdivision (a) of this subsection or if the
16 felony committed is in violation of one of the sections set forth in
17 subdivision (a) of this subsection and both of the prior convictions are
18 in violation of subsection (3) of section 28-306, the mandatory minimum
19 term shall be twenty-five years and the maximum term not more than sixty
20 years; and
21 (c) If a greater punishment is otherwise provided by statute, the
22 law creating the greater punishment shall govern.
23 (2)(a) A conviction for a nonviolent felony:
24 (i) Shall not receive an enhanced penalty under this section; and
25 (ii) Shall not be considered in determining whether a person is a
26 habitual criminal.
27 (b) For purposes of this section:
28 (i)(A) Nonviolent felony means a felony that does not have, as an
29 element of the offense:
30 (I) Sexual contact or sexual penetration; or
31 (II) The threat to inflict serious bodily injury or death on another
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1 person, the infliction of serious bodily injury on another person, or
2 causing the death of another person; and
3 (B) Nonviolent felony does not include a violation of section
4 28-313, 28-314, 28-502, 28-831, or 28-1222 or attempt of, conspiracy to
5 commit, solicitation of, being an accessory to, aiding and abetting,
6 aiding the consummation of, or compounding a felony when the underlying
7 offense is a violation of section 28-313, 28-314, 28-502, 28-831, or
8 28-1222 or any of the offenses in subdivision (2)(b)(i)(A) of this
9 section.
10 (ii) Sexual contact and sexual penetration have the same meaning as
11 in section 28-318; and
12 (iii) Serious bodily injury has the same meaning as in section
13 28-109.
14 (3) (2) When punishment of an accused as a habitual criminal is
15 sought, the facts with reference thereto shall be charged in the
16 indictment or information which contains the charge of the felony upon
17 which the accused is prosecuted, but the fact that the accused is charged
18 with being a habitual criminal shall not be an issue upon the trial of
19 the felony charge and shall not in any manner be disclosed to the jury.
20 If the accused is convicted of a felony, before sentence is imposed a
21 hearing shall be had before the court alone as to whether such person has
22 been previously convicted of prior felonies. The court shall fix a time
23 for the hearing and notice thereof shall be given to the accused at least
24 three days prior thereto. At the hearing, if the court finds from the
25 evidence submitted that the accused has been convicted two or more times
26 of felonies and sentences imposed therefor by the courts of this or any
27 other state or by the United States, except as provided in subsection (2)
28 of this section, the court shall sentence such person so convicted as a
29 habitual criminal.
30 (4) (3) If the person so convicted shows to the satisfaction of the
31 court before which the conviction was had that he or she was released
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1 from imprisonment upon either of such sentences upon a pardon granted for
2 the reason that he or she was innocent, such conviction and sentence
3 shall not be considered as such under this section and section 29-2222.
4 Sec. 6. Sections 6 to 11 of this act shall be known and may be
5 cited as the Fair Sentencing Act.
6 Sec. 7. (1) In response to a legislative change eliminating or
7 reducing the punishment for an offense, a prisoner in custody under
8 sentence of imprisonment for such an offense may file a verified motion,
9 in the court which imposed such sentence, asking the court to resentence
10 the prisoner in accordance with the new law.
11 (2) This section applies to any legislative change that would reduce
12 the penalty for an offense that a prisoner was convicted of, including,
13 but not limited to:
14 (a) A reduction in the sentence authorized for the offense;
15 (b) The repeal or decriminalization of the offense; or
16 (c) A change to the elements of an offense such that the offense the
17 prisoner was convicted of would no longer be a crime or would carry a
18 lesser punishment. In making a determination under this subdivision, the
19 court shall examine only the elements of the offense of conviction as
20 charged, and not the underlying factual basis for the conviction, unless
21 the parties have stipulated to such factual basis.
22 (3)(a) The court shall first determine whether, due to a legislative
23 change, the punishment for the prisoner's offense has been eliminated or
24 lessened. Unless the motion and the files and records of the case show to
25 the satisfaction of the court that no such elimination or lessening of
26 the punishment for the prisoner's offense has occurred, the court shall
27 cause notice of the motion to be served on the county attorney, grant a
28 prompt hearing on the motion, make the determination required by this
29 subsection, and set forth the reasons for its findings.
30 (b) The court may make the determination required by this subsection
31 without requiring the production of the prisoner, whether or not a
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1 hearing is held.
2 (4)(a) If the court finds that, due to a legislative change, the
3 punishment for the prisoner's offense has been eliminated or lessened,
4 the court shall set the matter for hearing to determine whether to
5 resentence the prisoner and, if so, the prisoner's new sentence. The
6 prisoner shall be present at the hearing unless waived by the prisoner.
7 The resentencing shall be done in accordance with the rules generally
8 governing sentencing, except that the court may, but is not required to,
9 order a new presentence investigation report.
10 (b) The court may resentence the defendant to any sentence
11 authorized by the law at the time of such resentencing that is less than
12 the sentence originally imposed. This includes terms and types of
13 sentences not authorized when the prisoner was originally sentenced or
14 different from the prisoner's original sentence, such as post-release
15 supervision and probation.
16 (c) In determining whether to resentence the prisoner and, if so,
17 the prisoner's new sentence, the court shall consider the factors set
18 forth in section 29-2260, the prisoner's conduct while imprisoned, the
19 extent of the prisoner's rehabilitation, and whether the prisoner's age
20 or condition weigh in favor of release or a lesser sentence.
21 Sec. 8. The court may appoint not to exceed two attorneys to
22 represent a prisoner in all proceedings under the Fair Sentencing Act.
23 The court, upon hearing the application, shall fix reasonable expenses
24 and fees, and the county board shall allow payment to the attorney or
25 attorneys in the full amount determined by the court. The attorney or
26 attorneys shall be competent and shall provide effective counsel.
27 Sec. 9. An order granting or denying a motion under section 7 of
28 this act is a final, appealable order for purposes of section 25-1902.
29 Sec. 10. The court need not entertain a second motion or successive
30 motions for similar relief under section 7 of this act on behalf of the
31 same prisoner. Similar relief does not include additional motions based
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