§ 29-2262 — Probation; conditions; court order; information accessible through criminal justice information system

Nebraska § 29-2262

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1) When a court sentences an offender to probation, it shall attach such reasonable conditions as it deems necessary or likely to insure that the offender will lead a law-abiding life. No offender shall be sentenced to probation if he or she is deemed to be a habitual criminal pursuant to section 29-2221 .
(2) The court may, as a condition of a sentence of probation, require the offender:
(a) To refrain from unlawful conduct;
(b) To be confined periodically in the county jail or to return to custody after specified hours but not to exceed the lesser of ninety days or the maximum jail term provided by law for the offense;
(c) To meet his or her family responsibilities;
(d) To devote himself or herself to a specific employment or occupation;
(e) To undergo medical or psychiatric treatment and to enter and remain in a specified institution for such purpose;
(f) To pursue a prescribed secular course of study or vocational training;
(g) To attend or reside in a facility established for the instruction, recreation, or residence of persons on probation;
(h) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;
(i) To possess no firearm or other dangerous weapon if convicted of a felony, or if convicted of any other offense, to possess no firearm or other dangerous weapon unless granted written permission by the court;
(j) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his or her address or his or her employment and to agree to waive extradition if found in another jurisdiction;
(k) To report as directed to the court or a probation officer and to permit the officer to visit his or her home;
(l) To pay a fine in one or more payments as ordered;
(m) To pay for tests to determine the presence of drugs or alcohol, psychological evaluations, offender assessment screens, and rehabilitative services required in the identification, evaluation, and treatment of offenders if such offender has the financial ability to pay for such services;
(n) To perform community service as outlined in sections 29-2277 to 29-2279 under the direction of his or her probation officer;
(o) To be monitored by an electronic surveillance device or system and to pay the cost of such device or system if the offender has the financial ability;
(p) To participate in a community correctional facility or program as provided in the Community Corrections Act;
(q) To satisfy any other conditions reasonably related to the rehabilitation of the offender;
(r) To make restitution as described in sections 29-2280 and 29-2281 ; or
(s) To pay for all costs imposed by the court, including court costs and the fees imposed pursuant to section 29-2262.06 .
(3) When jail time is imposed as a condition of probation under subdivision (2)(b) of this section, the court shall advise the offender on the record the time the offender will serve in jail assuming no good time for which the offender will be eligible under section 47-502 is lost and assuming none of the jail time imposed as a condition of probation is waived by the court.
(4) Jail time may only be imposed as a condition of probation under subdivision (2)(b) of this section if:
(a) The court would otherwise sentence the defendant to a term of imprisonment instead of probation; and
(b) The court makes a finding on the record that, while probation is appropriate, periodic confinement in the county jail as a condition of probation is necessary because a sentence of probation without a period of confinement would depreciate the seriousness of the offender's crime or promote disrespect for law.
(5) In all cases in which the offender is guilty of violating section 28-416 , a condition of probation shall be mandatory treatment and counseling as provided by such section.
(6) In all cases in which the offender is guilty of a crime covered by the DNA Identification Information Act, a condition of probation shall be the collecting of a DNA sample pursuant to the act and the paying of all costs associated with the collection of the DNA sample prior to release from probation.
(7) For any offender sentenced to probation, the court shall enter an order to provide the offender's (a) name, (b) probation officer, and (c) conditions of probation to the Nebraska Commission on Law Enforcement and Criminal Justice which shall provide access to such information to law enforcement agencies through the state's criminal justice information system.

Legislative History

Source: Laws 1971, LB 680, § 17; Laws 1975, LB 289, § 1; Laws 1978, LB 623, § 29; Laws 1979, LB 292, § 1; Laws 1986, LB 504, § 2; Laws 1986, LB 528, § 4; Laws 1986, LB 956, § 14; Laws 1989, LB 592, § 3; Laws 1989, LB 669, § 1; Laws 1990, LB 220, § 8; Laws 1991, LB 742, § 2; Laws 1993, LB 627, § 2; Laws 1995, LB 371, § 15; Laws 1997, LB 882, § 1; Laws 1998, LB 218, § 16; Laws 2003, LB 46, § 9; Laws 2006, LB 385, § 1; Laws 2010, LB190, § 1; Laws 2015, LB605, § 67; Laws 2016, LB1094, § 17; Laws 2019, LB340, § 1; Laws 2023, LB50, § 10. Cross References: Community Corrections Act, see section 47-619. DNA Identification Information Act, see section 29-4101. Annotations: 1. Conditions of probation, generally 2. Restitution and expenses 3. Jail confinement and custodial sanctions 1. Conditions of probation, generally Under subsection (2) of this section, a sentencing court is authorized to order a predetermined, periodic service of a definite term of jail time as a condition of probation. However, the Legislature has not otherwise authorized combining a sentence of imprisonment and a sentence of probation within the same sentence. State v. Brown, 317 Neb. 273, 9 N.W.3d 871 (2024). The conditions that may be placed on an offender sentenced to probation by a sentencing court authorize a no-contact condition of probation when it is reasonable and necessary to the rehabilitative goals of probation. State v. Rieger, 286 Neb. 788, 839 N.W.2d 282 (2013). Whether a condition of probation imposed by the sentencing court is authorized by statute is a question of law. State v. Rieger, 286 Neb. 788, 839 N.W.2d 282 (2013). A court may revoke a defendant's driver's license as a condition of probation if it is reasonably related to a defendant's rehabilitation. State v. Becker, 282 Neb. 449, 804 N.W.2d 27 (2011). Denying a probationer the ability to earn good time credit as provided for by section 47-502 is not a condition of parole authorized by statute. State v. Lobato, 259 Neb. 579, 611 N.W.2d 101 (2000). A probationer sentenced to an intermittent sentence is not entitled to a reduction of this sentence pursuant to section 47-502. State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992). Condition of probation prohibiting defendant from circulating or promoting the circulation of any initiative or referendum petition during the period of probation is authorized by subsection (1) and subdivision (2)(p) of this section. State v. Katzman, 228 Neb. 851, 424 N.W.2d 852 (1988). A judgment imposing reasonable terms of probation is a sentence. State v. Sock, 227 Neb. 646, 419 N.W.2d 525 (1988). Consent to search real and personal property at any time, by any law enforcement or probation officer, without issuance of a search warrant, and the waiving of extradition in the event probation is violated were held to be reasonable conditions under this section. State v. Lingle, 209 Neb. 492, 308 N.W.2d 531 (1981). A condition in a probation order requiring a person convicted of a drug offense to permit searches of his person or property is valid, enforceable, and constitutional if it is applied in a reasonable manner and contributes to the probationer's rehabilitation. State v. Morgan, 206 Neb. 818, 295 N.W.2d 285 (1980). A requirement that one convicted of driving while intoxicated attend and complete and pay for an alcohol abuse course is a valid condition of probation. State v. Muggins, 192 Neb. 415, 222 N.W.2d 289 (1974). Individuals in the county or district court can be placed on probation with conditions related to the rehabilitation of the offender. State v. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018). A condition of probation requiring a defendant to pay child support toward arrearages when child support is unrelated to the defendant's conviction is authorized by subsection (2)(c) of this section. State v. McCrimon, 15 Neb. App. 452, 729 N.W.2d 682 (2007). 2. Restitution and expenses Condition of probation requiring defendant to reimburse county for the expenses incurred in providing a court-appointed attorney is within court's authority to require offenders "(t)o satisfy any other conditions reasonably related to the rehabilitation of the offender" but such authority is limited by section 29-3908. State v. Wood, 245 Neb. 63, 511 N.W.2d 90 (1994). An order to make restitution as a condition of probation is limited to the direct loss resulting from that offense of which a defendant has been convicted. State v. Escamilla, 237 Neb. 647, 467 N.W.2d 59 (1991). As a condition of probation upon a conviction of a criminal offense, the court may require restitution to the victim for pain and suffering, in addition to medical expenses and lost wages. State v. Behrens, 204 Neb. 785, 285 N.W.2d 513 (1979). Restitution and reparation are not limited to the market value of the stolen property nor is the state required to establish the exact amount of the loss or damage caused by the crime. State v. McClanahan, 194 Neb. 261, 231 N.W.2d 351 (1975). 3. Jail confinement and custodial sanctions Custodial sanctions are distinct from jail time under subdivision (2)(b) of this section. State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016). Jail time under subdivision (2)(b) of this section is a predetermined, definite term of jail time up to the term authorized by the statute; that term may be served periodically, but it is not conditional. State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016). The general provisions of subsection (1) and subdivision (2)(r) of this section do not confer the power to impose jail time as part of sentences of probation; jail time as a condition of probation may be granted only under specific statutory authority. State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016). The amendment by 2015 Neb. Laws, L.B. 605, removing the provision of this section relating to jail time as a condition of probation for felony offenses did not implicitly repeal the provision in section 60-6,197.03(6) that required 60 days in jail as a condition of probation. State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016). Where a plea agreement is silent as to conditions of probation, it would not be a breach of that plea agreement for the State to recommend incarceration as a condition of probation at sentencing. State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013). Pursuant to subsection (2)(b) of this section, the mandate of section 60-6,197.03(6) that an order of probation "shall also include" 60 days' confinement does not conflict with the provision that a trial court may require the offender to be confined for a period not to exceed 180 days; the minimum jail term for a period granted probation for an offense punishable under section 60-6,197.03(6) is 60 days, and the maximum is 180 days. State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010). As a general statement, jail confinement as a form of probation is not contrary to law. State v. Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991). Under this provision, jail time is to be imposed by judges. The trial court may not delegate the authority to impose a jail sentence, or to eliminate a jail sentence, to a nonjudge. State v. Lee, 237 Neb. 724, 467 N.W.2d 661 (1991). This section authorizes confinement in the county jail for a period not to exceed ninety days as a condition of probation in cases of conviction for a misdemeanor as well as a felony. State v. Behrens, 204 Neb. 785, 285 N.W.2d 513 (1979). This subsection does not authorize a sentence to jail as condition of probation. State v. Nuss, 190 Neb. 755, 212 N.W.2d 565 (1973).