Nebraska, like other states, distinguishes felony offenses from misdemeanors based on the maximum penalty allowed. A misdemeanor carries a maximum possible sentence of one year in jail. Any crime that carries more than a year and up to life in prison is a felony.
Nebraska has ten felony levels that are divided into four classes. Class I felonies carry the harshest punishments, and class IV felonies are the least serious. This article will discuss felony sentencing, parole, and expungement in Nebraska.
Class I felonies—the most serious—are divided into five levels and impose mandatory minimum sentences. Class II and III felonies each have two levels, and class IV has just one level. Below are the maximum penalties for each felony level and, where applicable, the minimum penalty.
(Neb. Rev. Stat. § 28-105 (2021).)
Nebraska uses both indeterminate and determinate sentencing for felonies.
Class I and II felonies fall under indeterminate sentencing, which means the court will set a minimum term and maximum term of imprisonment. For instance, the judge might impose a sentence of 20 to 30 years in prison. The actual release date will depend on several factors but, ultimately, is up to the parole board.
Eligibility. A person becomes eligible for parole after serving the minimum term minus any good time earned. Inmates earn "good time" for good behavior in prison and can potentially decrease their minimum sentence by up to one-half. Crimes that carry a mandatory minimum sentence, however, don't qualify for good-time deductions until they've served the mandatory minimum set in law.
Release date. With an indeterminate sentence, the offender's release date depends on:
An eligible offender could be released—at the earliest—upon completing at least half of the minimum term. At the latest, the offender must be released at the end of the maximum term.
Parole reviews. In making its decisions, the parole board reviews an inmate's criminal history and prior experiences on probation or parole, any recommendations of the sentencing judge, reports prepared by correction caseworkers, any victim or family statements, and any other relevant information. An inmate progresses through several informal review stages before going in front of the board.
Parole hearing. Inmates have procedural rights at the parole hearing (such as presenting evidence and cross-examining witnesses), but they don't have the right to an attorney at public expense. If granted parole, the inmate must abide by the release terms or face going back to prison. If denied parole, it's up to the board to allow another hearing.
A person convicted of a class III or IV felony will typically receive a determinate (set) term of imprisonment and post-supervision release. For example, the judge might impose a four-year prison sentence and one year of post-supervision release. (Defendants who have multiple convictions that include a class I or II felony receive indeterminate sentences.)
The release date for a determinate sentence tends to be more predictable than an indeterminate sentence. There's no parole board. The primary variable will be how much, if any, good time an offender earns in prison. Good time will be subtracted from the maximum term. Using our four-year sentencing example, an offender with minimal disciplinary offenses could be out of prison in as little as two years. The not-so-stellar inmate could spend the full four years in prison. And for offenders who don't do well on post-release supervision, they might spend part of their supervision time behind bars as well. Post-supervision release is supervised similar to probation. (More on probation below.) (Neb. Rev. Stat. §§ 29-2204, -2204.02 (2021).)
When imposing a felony sentence, judges can order one or more of the following:
Generally, a judge will hand down a sentence that includes imprisonment and then either "execute or stay" the prison sentence. Executing the sentence means the offender will go to prison (see Felony Sentencing above). Staying a sentence means the judge will give the offender a chance to avoid prison and serve all or part of the sentence in the community. A judge can also defer judgment, which places the entire conviction on hold. Only class IIA, III, IIIA, and IV felonies qualify for probation and deferred judgment.
Nebraska law authorizes probation sentences for class IIA, III, and IIIA felonies—meaning it's discretionary and up to the judge. For class IV felonies, the court must order probation except where the defendant is serving multiple felony sentences, is a habitual offender, or cannot be safely supervised in the community.
Probation conditions. When ordering probation, the judge conditions the stayed prison sentence on the defendant's compliance with the probation terms. Basically, the prison sentence hangs over the defendant's head as an incentive to remain law-abiding. Common probation conditions include remaining crime-free, serving a jail sentence, completing community service hours or treatment, abstaining from alcohol or drugs, maintaining employment, or being placed on home confinement. Nebraska law also authorizes several intensive probation programs, including Intensive Supervised Probation (ISP) and Specialized Substance Abuse Supervision (SSAS). ISP and SSAS incur the highest levels of probation supervision, such as monitored curfews, home and employment visitation, daily check-ins with probation officers, and electronic monitoring.
Probation length and violations. The court may order probation for up to five years. If the probationer does well on probation, the court can discharge the probationer early. Successful completion of probation means the criminal sentence is complete. Violating probation can mean being brought back in front of the court to face administrative sanctions, custodial sanctions (short jail stays), or the original prison sentence. (Neb. Rev. Stat. §§ 29-2261, -2262, -2262.04, -2263 (2021).)
Except in certain cases (like DUI and domestic abuse), a court may find a defendant guilty but hold off on entering the conviction and imposing the sentence. The court will consider several factors before deferring judgment, such as the seriousness of the offense, harm caused to victims, and the defendant's character and history. The prosecutor can also object to a deferral.
If granted, the judge places the defendant on probation subject to conditions. A defendant who successfully completes their probation can have the case dismissed and records sealed. (More on this below.) But upon a violation, the judge can impose any sentence that could have originally been set. (Neb. Rev. Stat. § 29-2292 (2021).)
Nebraska law doesn't allow convictions to be sealed or expunged from public view. A person can seek a pardon or set-aside, which removes certain civil disabilities of the conviction, but it does not remove the conviction from the public record. Potential employers, landlords, and others can still see the conviction record. However, if the judge dismisses the case for a deferred judgment or acquittal, records will automatically be sealed. The public cannot access sealed records. (Neb. Rev. Stat. § 29-3523 (2021).)
Like other states, Nebraska law requires prosecutors to file criminal charges within a certain amount of time after a crime is committed. This time limit is known as a criminal statute of limitations. For serious felonies, such as murder or child sex trafficking, there's no time limit—the prosecutor can file charges at any time. Time limits for other felonies range between three to seven years. Find more information in Criminal Statute of Limitations in Nebraska. (Neb. Rev. Stat. § 29-110 (2021).)
If you're charged with a felony offense in Nebraska, contact a criminal defense attorney right away. A conviction becomes part of your permanent criminal record. If you're convicted later of another crime, the court can consider your prior conviction and impose a harsher sentence in the new case. Even if you don't go to prison, a conviction can hurt you when you are applying for a job, housing, loan, or professional license.
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