29-2204. Sentence for felony other than Class III, IIIA, or IV felony; court; duties; study of offender; when; defendant under eighteen years of age; disposition.
(1) Except when a term of life imprisonment is required by law, in imposing a sentence upon an offender for any class of felony other than a Class III, IIIA, or IV felony, the court shall fix the minimum and the maximum terms of the sentence to be served within the limits provided by law. The maximum term shall not be greater than the maximum limit provided by law, and:
(a) The minimum term fixed by the court shall be any term of years less than the maximum term imposed by the court; or
(b) The minimum term shall be the minimum limit provided by law.
(2) When a maximum term of life is imposed by the court for a Class IB felony, the minimum term fixed by the court shall be:
(a) Any term of years not less than the minimum limit provided by law; or
(b) A term of life imprisonment.
(3) When a maximum term of life is imposed by the court for a Class IA felony, the minimum term fixed by the court shall be:
(a) A term of life imprisonment; or
(b) Any term of years not less than the minimum limit provided by law after consideration of the mitigating factors in section 28-105.02, if the defendant was under eighteen years of age at the time he or she committed the crime for which he or she was convicted.
(4) When the court is of the opinion that imprisonment may be appropriate but desires more detailed information as a basis for determining the sentence to be imposed than has been provided by the presentence report required by section 29-2261, the court may commit an offender to the Department of Correctional Services. During that time, the department shall conduct a complete study of the offender as provided in section 29-2204.03.
(5) Except when a term of life is required by law, whenever the defendant was under eighteen years of age at the time he or she committed the crime for which he or she was convicted, the court may, in its discretion, instead of imposing the penalty provided for the crime, make such disposition of the defendant as the court deems proper under the Nebraska Juvenile Code.
(6)(a) When imposing an indeterminate sentence upon an offender under this section, the court shall:
(i) Advise the offender on the record the time the offender will serve on his or her minimum term before attaining parole eligibility assuming that no good time for which the offender will be eligible is lost; and
(ii) Advise the offender on the record the time the offender will serve on his or her maximum term before attaining mandatory release assuming that no good time for which the offender will be eligible is lost.
(b) If any discrepancy exists between the statement of the minimum limit of the sentence and the statement of parole eligibility or between the statement of the maximum limit of the sentence and the statement of mandatory release, the statements of the minimum limit and the maximum limit shall control the calculation of the offender's term.
(c) If the court imposes more than one sentence upon an offender or imposes a sentence upon an offender who is at that time serving another sentence, the court shall state whether the sentences are to be concurrent or consecutive.
Source
Cross References
Annotations
1. Minimum sentence
2. Indeterminate sentence
3. Cumulative sentence
4. Solitary confinement
5. Miscellaneous
1. Minimum sentence
This section and section 29-2204.02(4) do not require a sentence for a Class IV felony to have a minimum term less than the maximum term. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
For purposes of the authorized limits of an indeterminate sentence, both "mandatory minimum" as used in section 28-319.01(2) and "minimum" as used in section 28-105 in regard to a Class IB felony mean the lowest authorized minimum term of the indeterminate sentence. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).
Under subsection (1) of this section, to the extent there was any discrepancy between the minimum sentence imposed and statements of the trial court regarding when the defendant would become eligible for parole, the minimum sentence controlled. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
There is no statutory requirement that the affirmatively stated minimum term for a Class IB felony sentence be less than the maximum term. State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
Under this section, specifically subsection (1)(a)(ii)(A), the minimum limit on a sentence for a Class IV felony cannot exceed one-third of the maximum statutory sentence; since the maximum statutory sentence for a Class IV felony is 5 years' imprisonment, a minimum sentence of more than 20 months' imprisonment cannot lawfully be imposed. State v. Bartholomew, 258 Neb. 174, 602 N.W.2d 510 (1999).
Minimum term of 30 months' imprisonment imposed by trial court on each of 10 counts of possession of child pornography exceeded minimum term of imprisonment provided by law, where minimum term could not exceed one-third of maximum term of 60 months' imprisonment. State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).
There is no statutory requirement that a sentence for either a Class II or a Class III felony have a minimum term less than the maximum term. State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009).
When there is no statutorily mandated minimum punishment for a Class IV felony, the minimum term of a determinate sentence is the minimum provided by law, 0 years. State v. Hurst, 8 Neb. App. 280, 594 N.W.2d 303 (1999).
The statement of minimum sentence controls calculation of offender's term and a misstatement of parole eligibility cannot be used to "bootstrap" a reduced term of sentence. State v. Glover, 3 Neb. App. 932, 535 N.W.2d 724 (1995).
2. Indeterminate sentence
A life-to-life sentence for second degree murder is permissible. State v. Abdulkadir, 286 Neb. 417, 837 N.W.2d 510 (2013).
A life to life sentence for second degree murder is permissible under this section. State v. Moore, 277 Neb. 111, 759 N.W.2d 698 (2009).
When a flat sentence of "life imprisonment" is imposed and no minimum sentence is stated, by operation of law, the minimum sentence is the minimum imposed by law. While this section does not require that a minimum term be different from a maximum term, it does require that a minimum term be affirmatively stated if it is to be imposed, and if a minimum term is not set forth, an indeterminate sentence will be imposed by operation of law. State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).
This section and section 83-1,105.01 govern indeterminate sentences, and they are inapplicable to a criminal defendant's determinate sentence. State v. White, 256 Neb. 536, 590 N.W.2d 863 (1999).
Under this section, an indeterminate sentence may be imposed for a misdemeanor if a court sentences an offender to serve time under the jurisdiction of the Department of Correctional Services. State v. Kess, 9 Neb. App. 353, 613 N.W.2d 20 (2000).
Operative July 1, 1998, trial courts sentencing defendants convicted of Class IV felony offenses may not impose an indeterminate sentence such that the minimum portion of the sentence exceeds one-third of the maximum term. State v. Harris, 7 Neb. App. 520, 583 N.W.2d 366 (1998).
This section does not require that the sentence imposed be indeterminate. State v. DuBray, 5 Neb. App. 496, 560 N.W.2d 189 (1997).
Pursuant to subsection (1)(a) of this section, in setting an indeterminate sentence, there must be a difference between the periods, and a sentence fixing identical minimum and maximum terms of imprisonment is not an indeterminate sentence. There is nothing in subsection (1)(a) of this section mandating that an indeterminate sentence must be imposed, nor is there a requirement that the minimum and maximum terms of such a sentence differ by any specific span of time. State v. Wilson, 4 Neb. App. 489, 546 N.W.2d 323 (1996).
3. Cumulative sentence
Where two sentences are imposed in the same court at the same time for two offenses, the sentences will run concurrently if the trial judge does not otherwise order. Stewart v. Delgado, 231 Neb. 401, 436 N.W.2d 512 (1989).
Where prisoner is convicted of different offenses, cumulative sentence may be imposed, each successive term to commence at termination of the one preceding. In re Walsh, 37 Neb. 454, 55 N.W. 1075 (1893).
4. Solitary confinement
Trial court erred in sentencing defendant to 4 days each year in solitary confinement, since that provision has been eliminated from this section. State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995).
This section as amended contains no provision for the imposition of solitary confinement as a part of a sentence. State v. Bennett, 2 Neb. App. 188, 508 N.W.2d 294 (1993).
5. Miscellaneous
This section determines an offender's minimum sentence from which parole eligibility is then calculated. Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d 373 (1999).
Where a criminal statute was amended by mitigating the minimum term of a Class IV felony indeterminate sentence after the defendant committed the crime, but before final judgment was rendered on direct appeal, the punishment was that provided by the amendatory act, since the Legislature did not specifically state otherwise. State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).
Where a court wholly fails to make truth in sentencing advisements, but no objection is made at the sentencing hearing when the defendant is provided an opportunity to do so, any claimed error in failing to pronounce the advisements is waived. State v. Svoboda, 13 Neb. App. 266, 690 N.W.2d 821 (2005).