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LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 32
Introduced by Pansing Brooks, 28.
Read first time January 07, 2021
Committee: Judiciary
1 A BILL FOR AN ACT relating to crimes and offenses; to amend sections
2 28-111, 28-204, 28-320.01, 28-320.02, 28-1205, 28-1212.02,
3 28-1212.04, 28-1463.04, and 29-2204.02, Reissue Revised Statutes of
4 Nebraska, and sections 28-101, 28-105, 28-115, 28-201, 28-202,
5 28-416, 28-813.01, 28-929, 28-1206, 28-1463.05, 29-1816, and
6 83-1,122.01, Revised Statutes Cumulative Supplement, 2020; to
7 provide for new felony classifications; to change penalties; to
8 harmonize provisions; and to repeal the original sections.
9 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 28-101, Revised Statutes Cumulative Supplement,
2 2020, is amended to read:
3 28-101 Sections 28-101 to 28-1357 and 28-1601 to 28-1603 and section
4 3 of this act shall be known and may be cited as the Nebraska Criminal
5 Code.
6 Sec. 2. Section 28-105, Revised Statutes Cumulative Supplement,
7 2020, is 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 twelve ten classes which are distinguished from
11 one another by the following penalties which are authorized upon
12 conviction:
13 Class I felony Death
14 Class IA felony Life imprisonment
15 Class IB felony Maximum—life imprisonment
16 Minimum—twenty years imprisonment
17 Class IC felony Maximum—fifty years imprisonment
18 Mandatory minimum—five years imprisonment
19 Class ICA felony Maximum—fifty years imprisonment
20 Minimum—five years imprisonment
21 Class ID felony Maximum—fifty years imprisonment
22 Mandatory minimum—three years imprisonment
23 Class IDA felony Maximum—fifty years imprisonment
24 Minimum—three years imprisonment
25 Class II felony Maximum—fifty years imprisonment
26 Minimum—one year imprisonment
27 Class IIA felony Maximum—twenty years imprisonment
28 Minimum—none
29 Class III felony Maximum—four years imprisonment and two years
30 post-release supervision or
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1 twenty-five thousand dollars fine, or both
2 Minimum—none for imprisonment and nine months
3 post-release supervision if imprisonment is imposed
4 Class IIIA felony Maximum—three years imprisonment
5 and eighteen months post-release supervision or
6 ten thousand dollars fine, or both
7 Minimum—none for imprisonment and nine months
8 post-release supervision if imprisonment is imposed
9 Class IV felony Maximum—two years imprisonment and twelve
10 months post-release supervision or
11 ten thousand dollars fine, or both
12 Minimum—none for imprisonment and none for
13 post-release supervision
14 (2) All sentences for maximum terms of imprisonment for one year or
15 more for felonies shall be served in institutions under the jurisdiction
16 of the Department of Correctional Services. All sentences for maximum
17 terms of imprisonment of less than one year shall be served in the county
18 jail.
19 (3) Nothing in this section shall limit the authority granted in
20 sections 29-2221 and 29-2222 to increase sentences for habitual
21 criminals.
22 (4) A person convicted of a felony for which a mandatory minimum
23 sentence is prescribed shall not be eligible for probation.
24 (5) All sentences of post-release supervision shall be served under
25 the jurisdiction of the Office of Probation Administration and shall be
26 subject to conditions imposed pursuant to section 29-2262 and subject to
27 sanctions authorized pursuant to section 29-2266.02.
28 (6) Any person who is sentenced to imprisonment for a Class I, IA,
29 IB, IC, ICA, ID, IDA, II, or IIA felony and sentenced concurrently or
30 consecutively to imprisonment for a Class III, IIIA, or IV felony shall
31 not be subject to post-release supervision pursuant to subsection (1) of
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1 this section.
2 (7) Any person who is sentenced to imprisonment for a Class III,
3 IIIA, or IV felony committed prior to August 30, 2015, and sentenced
4 concurrently or consecutively to imprisonment for a Class III, IIIA, or
5 IV felony committed on or after August 30, 2015, shall not be subject to
6 post-release supervision pursuant to subsection (1) of this section.
7 (8) The changes made to the penalties for Class III, IIIA, and IV
8 felonies by Laws 2015, LB605, do not apply to any offense committed prior
9 to August 30, 2015, as provided in section 28-116.
10 Sec. 3. (1) When an offense is a Class IC or ICA felony, the
11 prosecutor shall elect to charge the offense as either a Class IC or ICA
12 felony, at the prosecutor's discretion.
13 (2) When an offense is a Class ID or IDA felony, the prosecutor
14 shall elect to charge the offense as either a Class ID or IDA felony, at
15 the prosecutor's discretion.
16 (3) The prosecutor's charging decision under this section shall be
17 set forth in the indictment or information.
18 Sec. 4. Section 28-111, Reissue Revised Statutes of Nebraska, is
19 amended to read:
20 28-111 (1) Except as provided in subsection (2) of this section,
21 any Any person who commits one or more of the following criminal offenses
22 against a person or a person's property because of the person's race,
23 color, religion, ancestry, national origin, gender, sexual orientation,
24 age, or disability or because of the person's association with a person
25 of a certain race, color, religion, ancestry, national origin, gender,
26 sexual orientation, age, or disability shall be punished by the
27 imposition of the next higher penalty classification than the penalty
28 classification prescribed for the criminal offense, unless such criminal
29 offense is already punishable as a Class IB felony or higher
30 classification: Manslaughter, section 28-305; assault in the first
31 degree, section 28-308; assault in the second degree, section 28-309;
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1 assault in the third degree, section 28-310; terroristic threats, section
2 28-311.01; stalking, section 28-311.03; kidnapping, section 28-313; false
3 imprisonment in the first degree, section 28-314; false imprisonment in
4 the second degree, section 28-315; sexual assault in the first degree,
5 section 28-319; sexual assault in the second or third degree, section
6 28-320; sexual assault of a child, sections 28-319.01 and 28-320.01;
7 arson in the first degree, section 28-502; arson in the second degree,
8 section 28-503; arson in the third degree, section 28-504; criminal
9 mischief, section 28-519; unauthorized application of graffiti, section
10 28-524; criminal trespass in the first degree, section 28-520; or
11 criminal trespass in the second degree, section 28-521.
12 (2) The enhancement in subsection (1) of this section does not apply
13 to any criminal offense listed in subsection (1) of this section that is
14 already punishable as a Class I, IA, or IB felony.
15 (3) If any criminal offense listed in subsection (1) of this section
16 is punishable as a:
17 (a) Class I misdemeanor, the penalty under this section is a Class
18 IIIA felony;
19 (b) Class ID or IDA felony, the penalty under this section is a
20 Class IC or ICA felony, subject to section 3 of this act; and
21 (c) Class IC or ICA felony, the penalty under this section is a
22 Class IB felony.
23 Sec. 5. Section 28-115, Revised Statutes Cumulative Supplement,
24 2020, is amended to read:
25 28-115 (1) Except as provided in subsection (2) of this section, any
26 person who commits any of the following criminal offenses against a
27 pregnant woman shall be punished by the imposition of the next higher
28 penalty classification than the penalty classification prescribed for the
29 criminal offense:
30 (a) Assault in the first degree, section 28-308;
31 (b) Assault in the second degree, section 28-309;
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1 (c) Assault in the third degree, section 28-310;
2 (d) Assault by strangulation or suffocation, section 28-310.01;
3 (e) Sexual assault in the first degree, section 28-319;
4 (f) Sexual assault in the second or third degree, section 28-320;
5 (g) Sexual assault of a child in the first degree, section
6 28-319.01;
7 (h) Sexual assault of a child in the second or third degree, section
8 28-320.01;
9 (i) Sexual abuse of an inmate or parolee in the first degree,
10 section 28-322.02;
11 (j) Sexual abuse of an inmate or parolee in the second degree,
12 section 28-322.03;
13 (k) Sexual abuse of a protected individual in the first or second
14 degree, section 28-322.04;
15 (l) Sexual abuse of a detainee under section 28-322.05;
16 (m) Domestic assault in the first, second, or third degree, section
17 28-323;
18 (n) Assault on an officer, an emergency responder, a state
19 correctional employee, a Department of Health and Human Services
20 employee, or a health care professional in the first degree, section
21 28-929;
22 (o) Assault on an officer, an emergency responder, a state
23 correctional employee, a Department of Health and Human Services
24 employee, or a health care professional in the second degree, section
25 28-930;
26 (p) Assault on an officer, an emergency responder, a state
27 correctional employee, a Department of Health and Human Services
28 employee, or a health care professional in the third degree, section
29 28-931;
30 (q) Assault on an officer, an emergency responder, a state
31 correctional employee, a Department of Health and Human Services
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1 employee, or a health care professional using a motor vehicle, section
2 28-931.01;
3 (r) Assault by a confined person, section 28-932;
4 (s) Confined person committing offenses against another person,
5 section 28-933; and
6 (t) Proximately causing serious bodily injury while operating a
7 motor vehicle, section 60-6,198.
8 (2) The enhancement in subsection (1) of this section does not apply
9 to any criminal offense listed in subsection (1) of this section that is
10 already punishable as a Class I, IA, or IB felony.
11 (3) If any criminal offense listed in subsection (1) of this section
12 is punishable as a:
13 (a) Class I misdemeanor, the penalty under this section is a Class
14 IIIA felony; .
15 (b) Class ID or IDA felony, the penalty under this section is a
16 Class IC or ICA felony, subject to section 3 of this act; and
17 (c) Class IC or ICA felony, the penalty under this section is a
18 Class IB felony.
19 (4) (3) The prosecution shall allege and prove beyond a reasonable
20 doubt that the victim was pregnant at the time of the offense.
21 Sec. 6. Section 28-201, Revised Statutes Cumulative Supplement,
22 2020, is amended to read:
23 28-201 (1) A person shall be guilty of an attempt to commit a crime
24 if he or she:
25 (a) Intentionally engages in conduct which would constitute the
26 crime if the attendant circumstances were as he or she believes them to
27 be; or
28 (b) Intentionally engages in conduct which, under the circumstances
29 as he or she believes them to be, constitutes a substantial step in a
30 course of conduct intended to culminate in his or her commission of the
31 crime.
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1 (2) When causing a particular result is an element of the crime, a
2 person shall be guilty of an attempt to commit the crime if, acting with
3 the state of mind required to establish liability with respect to the
4 attendant circumstances specified in the definition of the crime, he or
5 she intentionally engages in conduct which is a substantial step in a
6 course of conduct intended or known to cause such a result.
7 (3) Conduct shall not be considered a substantial step under this
8 section unless it is strongly corroborative of the defendant's criminal
9 intent.
10 (4) Criminal attempt is:
11 (a) A Class II felony when the crime attempted is a Class I, IA, IB,
12 IC, ICA, or ID, or IDA felony;
13 (b) A Class IIA felony when the crime attempted is a Class II
14 felony;
15 (c) A Class IIIA felony when the crime attempted is a Class IIA
16 felony;
17 (d) A Class IV felony when the crime attempted is a Class III or
18 IIIA felony;
19 (e) A Class I misdemeanor when the crime attempted is a Class IV
20 felony;
21 (f) A Class II misdemeanor when the crime attempted is a Class I
22 misdemeanor; and
23 (g) A Class III misdemeanor when the crime attempted is a Class II
24 misdemeanor.
25 Sec. 7. Section 28-202, Revised Statutes Cumulative Supplement,
26 2020, is amended to read:
27 28-202 (1) A person shall be guilty of criminal conspiracy if, with
28 intent to promote or facilitate the commission of a felony:
29 (a) He agrees with one or more persons that they or one or more of
30 them shall engage in or solicit the conduct or shall cause or solicit the
31 result specified by the definition of the offense; and
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1 (b) He or another person with whom he conspired commits an overt act
2 in pursuance of the conspiracy.
3 (2) If a person knows that one with whom he conspires to commit a
4 crime has conspired with another person or persons to commit the same
5 crime, he is guilty of conspiring to commit such crime with such other
6 person or persons whether or not he knows their identity.
7 (3) If a person conspires to commit a number of crimes, he is guilty
8 of only one conspiracy so long as such multiple crimes are the object of
9 the same agreement or continuous conspiratorial relationship.
10 (4)(a) (4) Conspiracy is a crime of the same class as the most
11 serious offense which is an object of the conspiracy, except that
12 conspiracy to commit a Class I felony is a Class II felony.
13 (b) If the most serious offense which is an object of the conspiracy
14 is a Class IC or ICA felony, the penalty for conspiracy shall be a Class
15 IC or ICA felony, subject to section 3 of this act.
16 (c) If the most serious offense whi