AGO Opinion 98013
DATE: February 17, 1998
SUBJECT: Determinate Sentences
REQUESTED BY: Harold W. Clarke, Director Nebraska Department of Correctional Services
WRITTEN 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
(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 LB 529 repealed § 83-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
(1) Except when a term of life is required by law, in
imposing an indeterminate sentence upon an offender the
(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 that the sentence that is
pronounced by a court and the sentence which an inmate
will actually serve are two very different things....How
this would work and why I believe this is needed is
perhaps best understood by an example. Assume that you
read in the newspaper that as a victim of a convicted
rapist you saw him sentenced to 50 years in prison with
no minimum sentence specified. Most people probably
would think that sounds like a pretty tough sentence.
However, under Nebraska law that offender would be
eligible for parole in just six months....I don't think
anyone could sincerely argue that our present system
fully discloses the actuality of sentencing punishment in
our state. It's deceptive. We prohibit deceptive trade
practices and deceptive advertising, and I believe it's
time we have full disclosure in sentencing.
In 1997, the Nebraska legislature enacted LB 364, with an
operative date of July 1, 1998. LB 364 reinstates indeterminate
sentencing by operation of law with the following language:
Except where a term of life is required by law, in
imposing an indeterminate sentence upon an offender the
(1) Fix the minimum and maximum limits of the
sentence to be served within the limits provided by law
for any class of felony other than a Class IV felony,
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. If the criminal offense is a Class IV felony,
the court shall fix the minimum and maximum limits of the
sentence, but the minimum limit fixed by the court shall
not be less than the minimum provided by law no 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 sentence provided by law[.]
The present authority of Nebraska courts to impose determinate
sentences was recognized by the Nebraska Supreme Court in State v.
Cook, 251 Neb. 781 (1997), and by the Nebraska Court of Appeals in
State v. DuBray, 5 Neb. App. 496 (1997). In Cook, the defendant
received a life sentence for first degree murder and a sentence of
20 years to 20 years for use of a firearm to commit a felony. The
Court said: "The Nebraska sentencing statutes do not require that
the minimum sentence be for a different term than the maximum
sentence. Nor do the statutes require that an indeterminate
sentence be issued in this case. Cook, 251 Neb. at 782-83,
emphasis added. In DuBray, the defendant received a sentence of
"not less than four nor more than four years' imprisonment". The
Court of Appeals noted that:
Nothing in § 29-2204 mandates that an indeterminate
sentence be imposed.
. . . .
Current statutes also do not provide a minimum sentence
when a definite term of years is imposed by the
. . . .
In addition, the language used in the statutes found in
Chapter 83 regarding the determination of credits for
time served and the determination of dates for parole and
full discharge does not require indeterminate sentencing
in the sense that the maximum and minimum terms must
differ or that there must be a minimum term imposed. In
particular, Neb. Rev. Stat. § 83-1,106 (1) and (2)
(Reissue 1994) speaks of [c]redit against the maximum
term and any minimum term[.].
DuBray, 5 Neb. App. at 500-01, emphasis added.
Although decisions of the Court of Appeals may have limited
use as precedent, the DuBray decision appears to be consistent with
the Nebraska Supreme Court's holding in Cook. Therefore, we con-
clude that Nebraska courts have had the authority to impose
determinant sentences since September 9, 1993 (and until July 1,
You have asked six questions regarding the application of
Nebraska's sentencing statutes and the DuBray decision.
1. "Should this court decision be applied to all similarly
situated inmates currently incarcerated and/or on parole? If so,
what effect would this case have on inmates currently on parole
that are not eligible for parole?"
ANSWER: Inmates who received determinant sentences for crimes
committed on and after September 9, 1993, have no parole
eligibility. So, any such inmates who have been placed on parole
would be subject to parole recision proceedings due to the error in
the calculation of their sentences.
2. "Does this decision require that all flat sentences be
treated as sentences with no minimum terms? By statute, parole
eligibility is based on the minimum term. Does this mean that on
flat sentences there is no minimum term, and, therefore, no parole
eligibility date? Would these inmates be required to serve their
maximum prison term, less good time reductions, without the benefit
of any parole consideration? For example the majority of sentences
received for terms of imprisonment for up to two years rarely
impose minimum terms. Most of these terms are for Class IV
felonies or misdemeanor cases. Would parole eligibility also be
eliminated on these sentences?"
ANSWER: With respect to inmates given determinant sentences
for crimes committed on and after September 9, 1993, the answer to
all of the above questions is "yes."
3. "If a person was sentenced to a term of life imprisonment
for second degree murder (Class IB felony), would this individual
in essence be serving a life term without any minimum term, and
therefore, no parole eligibility date?"
ANSWER: With respect to inmates given a determinant sentence
of life imprisonment for a second degree murder committed on or
after September 9, 1993, the answer to the above question is "yes."
4. "On flat sentences, do truth-in-sentencing comments
regarding the amount of time to be served toward parole eligibility
override the imposition of a flat sentence that does not have a
parole eligibility date?"
ANSWER: Section 29-2204 (1)(c) provides:
If any discrepancy exists between the minimum limit of
the sentence of 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.
So, if a court acting on or after September 9, 1993, imposed
a determinant sentence, any statements made regarding parole
eligibility would not be controlling. It would be the
responsibility of the defendant to bring the discrepancy to the
attention of an appellate court as was done in State v. Wilson, 4
Neb. App. 489 (1996), to obtain a reversal and remand for re-
sentencing to clarify.
5. "The truth-in-sentencing statute became effective on
September 9, 1993. Would this court decision apply to all inmates
sentenced on or after September 9, 1993, or would it apply only to
inmates who committed their crimes on or after September 9, 1993?"
ANSWER: The Nebraska Constitution, like the federal
Constitution, prohibits the enactment of ex post facto laws. See
U.S. Const. art. I, § 10, c1.1; Neb. Const. art. I, § 16. A
criminal law is ex post facto if it inflicts a greater punishment
than the law which was applicable at the time the crime was
committed. Weaver v. Graham, 450 U.S. 24 (1981). In Weaver, the
U.S. Supreme Court declared that a more restrictive good time law
could not be applied to inmates who committed their offenses before
the effective date of the law, even though they were sentenced
after the effective date. The Court declined to draw a distinction
between criminal sentences and benefits such as good time which
traditionally had been reviewed as acts of legislative "grace."
The Court said:
[A] law need not impair a `vested right' to violate the
ex post facto prohibition.
. . . .
The presence or absence of an affirmative, enforceable
right is not relevant...to the ex post facto prohibition,
which forbids the imposition of punishment more severe
than the punishment assigned by law when the act to be
punished occurred. Critical to relief under the Ex Post
Facto Clause is not an individual's right to less
punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment
beyond what was prescribed when the crime was
consummated. Thus, even if a statute merely alters penal
provisions accorded by the grace of the legislature, it
violates the Clause if it is both retrospective and more
onerous than the law in effect on the date of the
. . . .
The critical question is whether the law changes the
legal consequences of acts completed before its effective
Weaver, 450 U.S. at 29-31.
In California Dept. of Corrections v. Morales, 115 S.Ct. 1597
(1995), the Supreme Court did find that a mere change in the
frequency of parole board hearings was not sufficient to violate
the Ex Post Facto Clause because there was no reason to conclude
that the change would extend or have any effect on a prisoner's
actual term of confinement. Morales, 115 S.Ct. at 1604-05. In
light of the reasoning of the U.S. Supreme Court in Weaver and
Morales, we must conclude that determinate sentences under LB 529
may be applied only to inmates who committed their crimes on or
after September 9, 1993.
6. "If this court decision must be applied, what effect
would this action have on determining parole eligibility dates in
the following circumstances?
a. Concurrent sentences: There are instances in which
inmates are serving concurrent terms where some counts are flat
sentences and other counts are indeterminate sentences. At what
point does an inmate become eligible for parole on the concurrent
b. Consecutive sentences: There are instances in which
inmates are serving indeterminate sentences and then receive a
consecutive flat sentence. Nebraska statutes require that the
minimum and maximum terms be added together to establish parole
eligibility and discharge date on the combined terms. If there is
no minimum term on a flat sentence, at what point would an inmate
be eligible for parole on the consolidated term?"
ANSWER: (a). If an inmate is serving concurrent terms, and
some of the sentences are determinant while others are
indeterminate, the inmate would not be eligible for parole until
completing the longest determinant sentence and reaching parole
eligibility on the longest minimum term of the indeterminate
(b). With respect to consecutive sentences, it is
recognized that Neb. Rev. Stat. § 83-1,110 (Cum. Supp. 1996)
[E]very committed offender sentenced to consecutive
terms, whether received at the same time or at any time
during the original sentence, shall be eligible for
release on parole when the offender has served the total
of one-half the minimum terms. The maximum terms shall
be added to compute the new maximum term which, less good
time, shall determine the date when discharge from
custody becomes mandatory.
It is also recognized that Neb. Rev. Stat. § 83-170 (9)(1994)
Minimum term shall mean the minimum sentence provided by
law or the minimum sentence imposed by a court, whichever
The origin of these statutes dates back to an era when
Nebraska's systems of sentencing, good time, and parole were very
different. See Laws 1969, c.817, § 1, p. 3072, and § 41 p. 3093.
It is a challenging task to interpret these sections in complete
harmony with LB 529, which reflects the more recent intent of the
Basic principles of statutory construction established by the
Nebraska Supreme Court require that we (1) look at the statutory
objective to be accomplished, problem to be remedied, or purpose to
be served, and then place on the statute a reasonable construction
which best achieves its purpose, rather than a construction that
will defeat the purpose; and (2) conjunctively consider and
construe all statutory components to determine the intent of the
legislature, so that different provisions are consistent,
harmonious and sensible. See, e.g., State v. Joubert, 246 Neb. 287
(1994); Anderson v. Nashua Corp., 246 Neb. 420 (1994); and In Re
Guardianship & Conservatorship of Bloomquist, 246 Neb. 711 (1994).
If we interpret these statutes to require the consolidation of
consecutive determinate and indeterminate sentences, by creating
fictional "minimum terms" for the determinate sentences, that
interpretation would conflict with LB 529 and the Cook and DuBray
decisions. A determinate sentence does not have a minimum term
equal to the statutory minimum, nor does it have a minimum term of
"zero" or of "infinity." Under current law, a determinant sentence
also is not the same as an indeterminate sentence with minimum and
maximum terms of the same length. For example, an inmate who
received a determinant sentence of ten years would never be
eligible for parole. If the inmate forfeited all good time, the
inmate would be required to serve ten years. An inmate who
received an indeterminate sentence of ten years to ten years would
be eligible for parole after serving five years, even if the inmate
forfeited all good time. (Using good time laws effective July 1,
1996, pursuant to Laws 1995, LB 371).
Therefore, we suggest that § 83-1,110 and § 83-170(9) be
interpreted to apply only to indeterminate sentences created by
court order, or by operation of law outside the effective dates of
LB 529. If an inmate becomes eligible for parole on the
consolidated minimum terms of indeterminate sentences which the
inmate began to serve before receiving the determinate sentence,
and the Parole Board wishes to "parole" the inmate to serve the
determinant sentence, the Parole Board may do so, just as the Board
may parole an inmate to serve a consecutive term in another
jurisdiction. In this manner, the inmate does not lose the benefit
of parole eligibility on the indeterminate sentences (as would
occur if a minimum term of "infinity" was inferred from a
determinate sentence), and the integrity of the determinate
sentence is not lost (as would occur if a minimum term equal to the
statutory minimum, "zero", or the court-imposed sentence, was
inferred from a determinate sentence).
Laurie Smith Camp
Deputy Attorney General