29-2260. Certain juveniles; disposition; certain offenders; sentence of probation, when.

(1) Whenever a person is adjudicated to be as described in subdivision (1), (2), (3)(b), or (4) of section 43-247, his or her disposition shall be governed by the Nebraska Juvenile Code.

(2) Whenever a court considers sentence for an offender convicted of either a misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is not specifically required, the court may withhold sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of the offender, the court finds that imprisonment of the offender is necessary for protection of the public because:

(a) The risk is substantial that during the period of probation the offender will engage in additional criminal conduct;

(b) The offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or

(c) A lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for law.

(3) The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of withholding sentence of imprisonment:

(a) The crime neither caused nor threatened serious harm;

(b) The offender did not contemplate that his or her crime would cause or threaten serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse or justify the crime, though failing to establish a defense;

(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate the victim of his or her crime for the damage or injury the victim sustained;

(g) The offender has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the crime;

(h) The crime was the result of circumstances unlikely to recur;

(i) The character and attitudes of the offender indicate that he or she is unlikely to commit another crime;

(j) The offender is likely to respond affirmatively to probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

(4) When an offender who has been convicted of a crime is not sentenced to imprisonment, the court may sentence him or her to probation.

Source

Cross References

Annotations

1. Probation

2. Sentencing

3. Discretion

4. Miscellaneous

1. Probation

When the sentence alleged to be excessively lenient is one of probation, it is necessary for the trial court and the reviewing appellate court to consider the provisions of this section. State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001).

When determining whether to impose probation, the trial court must consider the factors set forth in this section. On appeal, an appellate court must likewise consider this section in determining whether probation may be imposed, whether reviewing a sentence for excessiveness pursuant to section 29-2308 or for leniency under section 29-2322. State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).

Denial of probation and imposition of a sentence within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion. State v. Thomas, 238 Neb. 4, 468 N.W.2d 607 (1991); State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991).

The Supreme Court will not overturn an order or sentence of the trial court which denies probation unless there has been an abuse of discretion. State v. Swails, 195 Neb. 406, 238 N.W.2d 246 (1976).

An order granting probation is a sentence under section 29-2260(4), and for review a motion for new trial must be filed within ten days, but no motion for new trial is required for review of order revoking probation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975).

A lack of cooperation prior to sentencing could be a strong indication that the lesser restrictions of probation may not be sufficient to effect a purposeful probation. State v. Gundlach, 192 Neb. 692, 224 N.W.2d 167 (1974).

2. Sentencing

Indeterminate sentence of not less than 4 nor more than 15 years' imprisonment was not excessive considering deliberate and premeditated manner in which defendant committed burglary, and in considering his continued disrespect for the law as shown by numerous past violations of the law and probation. State v. Peterson, 236 Neb. 450, 462 N.W.2d 423 (1990).

Sentence of life imprisonment for sixteen year old who pleaded guilty to second degree murder of his father is not excessive where a lesser sentence would have depreciated the seriousness of the offense. State v. Wredt, 208 Neb. 184, 302 N.W.2d 701 (1981).

In sentencing for a felony not involving the death penalty, there is no requirement that the judge conduct a case-by-case review of similar sentencings in that jurisdiction. State v. Glover, 207 Neb. 487, 299 N.W.2d 445 (1980).

Sentence for concurrent terms of seven to ten years on sexual assault charge and one year on third degree assault was not excessive where defendant used a knife and threatened death. State v. Glover, 207 Neb. 487, 299 N.W.2d 445 (1980).

Sentence of imprisonment for one year not excessive where defendant convicted of assault with intent to inflict great bodily injury by intentionally driving auto into victims. State v. McCurry, 198 Neb. 673, 254 N.W.2d 698 (1977).

The violence with which the offense was committed and that probation would depreciate the seriousness thereof or promote disrespect for law were valid reasons for sentencing first offender to imprisonment. State v. Keen, 196 Neb. 291, 242 N.W.2d 863 (1976).

Defendant's sentence of seven years for embezzlement, which under law was sentence of one to seven years, was not excessive under facts in this case. State v. McMullen, 195 Neb. 796, 240 N.W.2d 844 (1976).

Sentence of imprisonment is proper when record shows risk of further criminal conduct, and the most effective correctional treatment will be provided by a correctional facility. State v. Dedrick, 194 Neb. 500, 233 N.W.2d 777 (1975).

A sentence to imprisonment ought not exceed the minimum period consistent with protection of the public, gravity of the offense, and rehabilitative needs of the defendant. State v. Sturm, 189 Neb. 299, 202 N.W.2d 381 (1972).

3. Discretion

The language in this section which provides that the court "may withhold sentence of imprisonment" is merely a guideline and does not mandate a sentence of probation. However, this section does not give the sentencing court absolute discretion to impose either a sentence of imprisonment or a sentence of probation, and the sentencing court committed no error in interpreting this section and section 29-2911 to preclude the possible imposition of probation in this case. State v. Thornton, 225 Neb. 875, 408 N.W.2d 327 (1987).

The part of this section providing that the court may withhold sentence of imprisonment is a guideline for the court and is not mandatory. State v. Gillette, 218 Neb. 672, 357 N.W.2d 472 (1984).

The granting of probation as opposed to the imposing of a sentence is a matter which is left to the sound discretion of the trial court, and, absent a showing of abuse, the trial court's denial of probation will not be disturbed on appeal. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982).

The court's discretion is not controlled by this section. State v. Machmuller, 196 Neb. 734, 246 N.W.2d 69 (1976).

The Supreme Court will not overturn an order of the trial court which denies probation unless there has been an abuse of discretion. State v. Purviance, 194 Neb. 541, 233 N.W.2d 788 (1975).

This section gives recognition to fact that probation may be more effective and less expensive than imprisonment, but trial judge did not abuse discretion in sentencing defendant for whom repeated probation for a series of offenses has been tried and failed. State v. Dovel, 189 Neb. 173, 201 N.W.2d 820 (1972).

There being nothing in the record to show sentence within limits prescribed herein was not a legitimate exercise of judicial discretion to consider the nature and circumstances of the crime and the history, character, and condition of the offender it will not be disturbed on appeal. State v. Arp, 188 Neb. 493, 197 N.W.2d 703 (1972).

This section lists grounds to be considered by the sentencing court, but specifically provides it is not to control his discretion. State v. Cottone, 188 Neb. 102, 195 N.W.2d 196 (1972).

Even had standards herein been in effect at time of sentencing, refusal to grant probation would not have been abuse of discretion under facts in this case. State v. Clifton, 187 Neb. 714, 193 N.W.2d 558 (1972).

4. Miscellaneous

The defendant's sentence of 2 years' imprisonment with a 12-month period of postrelease supervision for possession of a controlled substance was vacated pursuant to State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971), where the defendant was sentenced concurrently for two Class IV felonies and a Class W misdemeanor and where after sentencing, but while the matter was pending on appeal, 2016 Neb. Laws, L.B. 1094, struck subsection (5) of this section and added section 29-2204.02(4), which precluded postrelease supervision. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).

There is no repugnancy or conflict between this section, section 29-2911, and section 29-2915, and this section was not repealed by implication by enactment of section 29-2911 or 29-2915. State v. Thornton, 225 Neb. 875, 408 N.W.2d 327 (1987).

Claimed intemperate remarks of judge at sentencing indicated a concern for the provisions of this section. State v. Glouser, 193 Neb. 186, 226 N.W.2d 134 (1975).

Anomie in the criminal process is a variable not to be forgotten, although its weight is light in any one case. State v. West, 188 Neb. 579, 198 N.W.2d 204 (1972).