AGO 98013.

• Court: Nebraska

Nebraska Attorney General Opinions 1998. AGO 98013. DATE: February 17, 1998SUBJECT: Determinate SentencesREQUESTED BY: Harold W. Clarke, Director Nebraska Department of Correctional ServicesWRITTEN BY: Don Stenberg, Attorney General Laurie Smith Camp, Deputy Attorney General You have asked several questions about the proper interpretation of determinate sentences. A determinate or "flat" sentence states only one term of years. An indeterminate sentence includes a maximum term to be used to compute the defendant's discharge date, and a minimum term to be used to compute the defendant's parole eligibility date. Before addressing your questions, we will summarize the recent statutory changes affecting determinate and indeterminate sentencing in Nebraska. In 1972, the Nebraska legislature amended Neb. Rev. Stat. § 83-1,105 to mandate indeterminate sentencing by operation of law. See Laws 1972, LB 1499, § 5. The statute provided: Except where a term of life is required by law, in imposing an indeterminate sentence upon the offender, the court may: (1) Fix the minimum and maximum limits of the sentence, but the minimum fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term, and the maximum limit shall not be greater than the maximum provided by law; (2) Impose a definite term of years in which event the maximum term of the sentence shall be the term imposed by the court and the minimum term shall be the minimum provided by law[.] Under this statute, if a judge attempted to impose a determinate sentence, the statutory minimum was automatically used to determine the inmate's parole eligibility. LB 529, known as Nebraska's "Truth in Sentencing" legislation, was enacted effective September 9, 1993. LB 529 repealed § 83- 1,105 and replaced it with an amended § 29-2204, which read as follows: (1) Except when a term of life is required by law, in imposing an indeterminate sentence upon an offender the court shall: (a) Fix the minimum and maximum limits of the sentence to be served within the limits provided by law, except that when a maximum limit of life is imposed by the court for a Class IB felony, the minimum limit may be any term of years not less than the statutory mandatory minimum; (b) Advise the offender on the record the time the offender will serve on his or her minimum term before attaining parole eligibility assuming that no good time for which the offender will be eligible is lost; and (c) Advise the offender on the record the time the offender will serve on his or her maximum term before attaining mandatory release assuming that no good time for which the offender will be eligible is lost. If any discrepancy exists between the statement of the minimum limit of the sentence and the statement of parole eligibility or between the statement of the maximum limit of the sentence and the statement of mandatory release, the statements of the minimum limit and the maximum limit shall control the calculation of the offender's term. If the court imposes more than one sentence upon an offender or imposes a sentence upon an offender who is at that time serving another sentence, the court shall state whether the sentences are to be concurrent or consecutive. The legislative history of LB 529 makes clear the fact that the bill was designed to eliminate indeterminate sentencing by operation of law. When introducing LB 529 before the Judiciary Committee on February 25, 1993, the principal sponsor, Senator Carol Pirsch, said: This bill would provide for truth in sentencing....The general public, I don't think, has a clear idea of the amount of time that a sentenced offender is likely to spend in custody. I believe the public and victims of crime have a right to know...