§ 29-2268 — Probation; post-release supervision; violation; court; determination

Nebraska § 29-2268

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1) If the court finds that the probationer, other than a probationer serving a term of post-release supervision, did violate a condition of his or her probation, it may revoke the probation and impose on the offender such new sentence as might have been imposed originally for the crime of which he or she was convicted.
(2) If the court finds that a probationer serving a term of post-release supervision did violate a condition of his or her post-release supervision, it may revoke the post-release supervision and impose on the offender a term of imprisonment up to the original period of post-release supervision. If a sentence of incarceration is imposed upon revocation of post-release supervision, the court shall grant jail credit for any days spent in custody as a result of the post-release supervision, including custodial sanctions. The term shall be served in an institution under the jurisdiction of the Department of Correctional Services or in county jail subject to subsection (2) of section 28-105 .
(3) If the court finds that the probationer did violate a condition of his or her probation, but is of the opinion that revocation is not appropriate, the court may order that:
(a) The probationer receive a reprimand and warning;
(b) Probation supervision and reporting be intensified;
(c) The probationer be required to conform to one or more additional conditions of probation which may be imposed in accordance with the Nebraska Probation Administration Act;
(d) A custodial sanction be imposed on a probationer convicted of a felony, subject to the provisions of section 29-2266.03 ; and
(e) The probationer's term of probation be extended, subject to the provisions of section 29-2263 .

Legislative History

Source: Laws 1971, LB 680, § 23; Laws 2015, LB605, § 70; Laws 2016, LB1094, § 24; Laws 2019, LB686, § 8. Annotations: 1. Revocation 2. Miscellaneous 1. Revocation A court's authority to revoke a probationer and impose a term of imprisonment extends only to the single term of post-release supervision that the probationer is serving, provided that the probationer has not otherwise been ordered to serve multiple terms concurrently. State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020). Because a court has discretion under subsection (2) of this section to impose, upon revocation, any term of imprisonment up to the remaining period of post-release supervision, an appellate court will not disturb that decision absent an abuse of discretion. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019). The Legislature has not demonstrated within this section that jail credit should be given for time served prior to revocation. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019). Time spent in jail prior to revocation is credited against a probationer's sentence of post-release supervision. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019). When calculating the "remaining period of post-release supervision" under subsection (2) of this section, courts must first identify the number of days the probationer was originally ordered to serve on post-release supervision. The court calculates the "remaining period of post-release supervision" by subtracting the number of days actually served from the number of days ordered to be served. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019). When determining the amount of time "remaining" on a period of post-release supervision, courts are not required to turn a blind eye to a probationer's absconsion from supervision. State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019). When a court has revoked post-release supervision, the maximum term of imprisonment that can be imposed is governed exclusively by this section and does not depend on the maximum sentence of initial imprisonment authorized by the relevant statute. State v. Wal, 302 Neb. 308, 923 N.W.2d 367 (2019). This section permits a court, upon determining that a probationer has violated a condition of probation, to revoke the probation and impose on the offender such new sentence as might have been imposed originally for the crime of which he was convicted; violation of a single condition of probation is sufficient. State v. Finnegan, 232 Neb. 75, 439 N.W.2d 496 (1989). Where the defendant violates a condition of his probation, the court may extend the terms of the probation, provided that the total length of probation does not exceed two years for a first offense misdemeanor or five years for a second offense misdemeanor or felony. State v. Ladehoff, 229 Neb. 111, 425 N.W.2d 352 (1988). In order to revoke probation for nonpayment of restitution, the evidence must clearly and convincingly show that the probationer has willfully refused to make restitution when he or she has the resources to pay or has failed to make sufficient bona fide efforts to find employment and otherwise legally acquire the resources to pay restitution. State v. Heaton, 225 Neb. 702, 407 N.W.2d 780 (1987). The violation of probation is not itself a crime, but merely a mechanism which may trigger the revocation of a previously granted probation. Once a court determines that a condition of probation has been violated and that the probation should be revoked, this section provides that the court is to impose a new sentence for the crime of which the defendant was originally convicted. State v. Painter, 223 Neb. 808, 394 N.W.2d 292 (1986). Upon revocation of probation, the court may impose such punishment as may have been imposed originally for the crime of which such defendant was convicted. Defendant who was convicted of third offense driving while intoxicated in 1980 and who violated his probation in 1984 was subject to sentencing under the penal statute in effect at the time of his conviction. State v. Jacobson, 221 Neb. 639, 379 N.W.2d 772 (1986). The court, under the language of this section, was free to require the defendant, after the revocation of probation, to serve the thirty days of jail time mandated by section 28-106 without regard to the forty-eight hours he had already served. State v. Schulz, 221 Neb. 473, 378 N.W.2d 165 (1985). If the court finds that the probationer violated a condition of his probation, it may revoke the probation and impose such new sentence as might have been imposed originally for the crime of which he was convicted. State v. Osterman, 197 Neb. 727, 250 N.W.2d 654 (1977); State v. Williams, 194 Neb. 483, 233 N.W.2d 772 (1975). 2. Miscellaneous Terms of post-release supervision may be served consecutively. When a consecutive sentence is imposed, the second sentence begins only upon the termination of the prior term of imprisonment. A prisoner who receives multiple consecutive sentences does not serve all sentences simultaneously, but serves only one sentence at a time. State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020). Once a district court finds a violation of post-release supervision, it must proceed under this section. State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018). Termination of post-release supervision as being unsatisfactory is not a revocation of post-release supervision and is not statutorily authorized. State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018). Violation of a single condition of probation established by clear and convincing evidence can support revocation. State v. Clark, 197 Neb. 42, 246 N.W.2d 657 (1976). An amendment to a probation order which was not made in conformance with subsection (2)(c) of this section is void. State v. Pawling, 9 Neb. App. 824, 621 N.W.2d 821 (2000).