29-2320. Appeal of sentence by prosecuting attorney or Attorney General; when authorized.

Whenever a defendant is found guilty of a felony following a trial or the entry of a plea of guilty or tendering a plea of nolo contendere, the prosecuting attorney charged with the prosecution of such defendant or the Attorney General may appeal the sentence imposed if there is a reasonable belief, based on all of the facts and circumstances of the particular case, that the sentence is excessively lenient.

Source

Annotations

1. Applicability of section

2. Standard of review

3. Waiver

4. Miscellaneous

1. Applicability of section

A sentence that falls below the sentencing limits prescribed by law may be appealed by the State as excessively lenient. State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).

Under this section, a prosecuting attorney may appeal sentences imposed in felony cases when he or she reasonably believes the sentence is excessively lenient. Under this section, an appellate court lacks the authority to review a sentence imposed for a misdemeanor conviction. State v. Stafford, 278 Neb. 109, 767 N.W.2d 507 (2009).

A sentence imposed in a revocation of probation proceeding is considered a sentence under this section and is subject to an appeal by the prosecutor challenging its leniency. State v. Caniglia, 272 Neb. 662, 724 N.W.2d 316 (2006).

This section does not provide the State with statutory authority to appeal the sentence of a defendant who has been acquitted of the death penalty and sentenced to life imprisonment. State v. Seberger, 257 Neb. 747, 601 N.W.2d 229 (1999).

2. Standard of review

When the State appeals and claims that a sentence imposed on a defendant is excessively lenient, the standard of review is whether the sentencing court abused its discretion in the sentence imposed. State v. Wojcik, 238 Neb. 863, 472 N.W.2d 732 (1991); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

In State's appeal under this section on a claim that an imposed sentence is excessively lenient, the sentence imposed will be upheld unless the sentencing court abused its discretion concerning the questioned sentence. State v. Stastny, 227 Neb. 748, 419 N.W.2d 873 (1988).

When the State appeals and claims that a sentence imposed on a defendant is excessively lenient, the standard of review is whether the sentencing court abused its discretion in the sentence imposed. State v. Rittenhouse, 1 Neb. App. 633, 510 N.W.2d 336 (1993).

3. Waiver

The State, by agreeing to remain silent at a defendant's sentencing hearing as part of a plea bargain, does not waive its statutory right to appeal a sentence as excessively lenient. State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007).

Waiver of the right to appeal a sentence must be express and unambiguous. State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007).

4. Miscellaneous

The protections of the Double Jeopardy Clause of the U.S. Constitution prevent the State from challenging as excessively lenient a life sentence resulting from a first degree murder conviction under the capital sentencing procedure. State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995).

This section is not unconstitutional. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990).