29-2292. Deferral of entry of judgment of conviction; defendant placed on probation; conditions; factors; new sentence; when.

665 words·~3 min read·/ne/chapter-29/29-2292

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Upon a finding of guilt for which a judgment of conviction may be rendered, a defendant may request the court defer the entry of judgment of conviction. Upon such request and after giving the prosecutor and defendant the opportunity to be heard, the court may defer the entry of a judgment of conviction and the imposition of a sentence and place the defendant on probation, upon conditions as the court may require under section 29-2262 .

(2)The court shall not defer judgment under this section if:

(a)The offense is a violation of a domestic abuse protection order under section 26-118 ;

(b)The victim of the offense is an intimate partner as defined in section 28-323 ;

(c)The offense is a violation of section 60-6,196 or 60-6,197 or a city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197 ;

(d)The defendant is not eligible for probation; or

(e)For any driver holding a commercial driver's license or CLP-commercial learner's permit issued pursuant to the Motor Vehicle Operator's License Act, such deferred judgment would mask the conviction and lead to noncompliance with federal law or regulation and subject this state to possible loss of federal money.

(3)Whenever a court considers a request to defer judgment, the court shall consider the factors set forth in section 29-2260 and any other information the court deems relevant.

(4)Except as otherwise provided in this section and sections 29-2293 and 29-2294 , the supervision of a defendant on probation pursuant to a deferred judgment shall be governed by the Nebraska Probation Administration Act and sections 29-2270 to 29-2273 .

(5)After a hearing providing the prosecutor and defendant an opportunity to be heard and upon a finding that a defendant has violated a condition of his or her probation, the court may enter any order authorized by section 29-2268 or pronounce judgment and impose such new sentence as might have been originally imposed for the offense for which the defendant was convicted.

(6)Upon satisfactory completion of the conditions of probation and the payment or waiver of all administrative and programming fees assessed under section 29-2293 , the defendant or prosecutor may file a motion to withdraw any plea entered by the defendant and to dismiss the action without entry of judgment.

(7)The provisions of this section apply to offenses committed on or after July 1, 2020. For purposes of this section, an offense shall be deemed to have been committed prior to July 1, 2020, if any element of the offense occurred prior to such date.

In entering an order of deferred judgment under this section, the court does not sentence the defendant to probation, as it does when it enters a judgment of conviction and imposes sentence; rather, it defers the entry of a judgment of conviction and imposition of a sentence and enters a conditional order placing the defendant on probation. State v. Gnewuch, 316 Neb. 47, 3 N.W.3d 295 (2024).

The deferred judgment scheme enacted by the Legislature in Laws 2019, LB686, does not violate the separation of powers guaranteed in Article II, section 1, of the Nebraska Constitution. State v. Gnewuch, 316 Neb. 47, 3 N.W.3d 295 (2024).

The plain language of subsection

(1)of this section requires that the defendant be found guilty before making a request of the court to defer the entry of the judgment of conviction and that the prosecutor and the defendant have an opportunity to be heard regarding the request. State v. Gnewuch, 316 Neb. 47, 3 N.W.3d 295 (2024).

Whether a deferred judgment is appropriate in any case and later, whether an action should be dismissed or a judgment of conviction entered are sentencing decisions left to the discretion of the trial court. At each stage of the deferred judgment process, the parties can present their arguments to the court but the sentencing decision remains with the court. State v. Gnewuch, 316 Neb. 47, 3 N.W.3d 295 (2024).