29-2321. Appeal of sentence by prosecuting attorney or Attorney General; procedure.

370 words·~2 min read·/ne/chapter-29/29-2321

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

(1)Appeals under sections 29-2320 to 29-2325 shall be taken, by either the Attorney General or the prosecuting attorney, as follows:

(a)If the appeal is filed by the Attorney General, a notice of appeal shall be filed in the district court within twenty days after imposition of the sentence. A copy of the notice of appeal shall be sent to either the defendant or counsel for the defendant; or

(b)If the prosecuting attorney wishes to file the appeal, he or she, within ten days after imposition of the sentence, shall request approval from the Attorney General to proceed with the appeal. A copy of the request for approval shall be sent to the defendant or counsel for the defendant.

(2)If the Attorney General approves the request described in subdivision (1)(b) of this section, the prosecuting attorney shall file a notice of appeal indicating such approval in the district court. Such notice of appeal must be filed within twenty days of the imposition of sentence. A copy of the notice of appeal shall be sent to the defendant or counsel for the defendant.

(3)If the Attorney General does not approve the request described in subdivision (1)(b) of this section, an appeal under sections 29-2320 to 29-2325 shall not be permitted.

(4)In addition to such notice of appeal, the docket fee required by section 33-103 shall be deposited with the clerk of the district court.

(5)Upon compliance with the requirements of this section, the appeal shall proceed as provided by law for appeals to the Court of Appeals.

When a defendant challenges a sentence imposed by the district court as excessive and the State believes the sentence to be erroneous but has not complied with section 29-2315.01 or this section, the State may not assert such error via a cross-appeal. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

While there is a temptation on a visceral level to conclude that anything less than incarceration depreciates the seriousness of crimes involving sexual assault of a child, it is the function of the sentencing judge, in the first instance, to evaluate the crime and the offender. State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).