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AGO Opinion 81131

Department of Correctional Services; criminal sentences of less than one year; where served.
Opinion 81131

SUBJECT: Department of Correctional Services; criminal sentences of less than one year; where served.

REQUESTED BY: Kenneth W. Payne
Box Butte County Attorney

OPINION BY: Paul L. Douglas, Attorney General; J. Kirk Brown, Assistant Attorney General.

QUESTION 1:

May a person of fifteen years of age and upwards who has been convicted of a misdemeanor for which the term of imprisonment" imposed is less than one year be sentenced to the Department of Correctional Services? Neb. Rev. Stat. §§28-105, et seq. (Reissue 1979); Neb. Rev. Stat. §83-482 (Cum. Supp. 1980) .

CONCLUSION 1: No.


QUESTION 2: Is the county of conviction liable for any expenses incurred in the housing of a county prisoner by the Department of Correctional Services.

CONCLUSION 2: Yes.

1. To resolve your inquiry we must first resolve the question of whether a person of fifteen years of age and upwards who is convicted of a misdemeanor for which the term of imprisonment imposed is less than one year may be sentenced to the Department of Correctional Services pursuant to Neb. Rev. Stat. §83-482 (Cum. Supp. 1980). That section states: "A person of fifteen years of age and upwards, convicted of a misdemeanor or felony, may be sentenced to the Department of Correctional Services." Section 83-482' was most recently amended by Laws 1979, LB 80, section 115.

Section 83-482, read alone, would appear on its face to resolve this question. However, in our opinion that section must be read in conjunction with the provisions of Neb. Rev. Stat. §§28-105, et seq. (Reissue 1979).

Section 28-105 states in part:

(2) All sentences of imprisonment for Class IA, IB, II, and III felonies and sentences of one year or more for Class IV felonies shall be served in institutions under the jurisdiction of the Department of Correctional Services. Sentences of less than one year shall be served in the county jail except as provided in this subsection. If the Department of Correctional Services certifies that it has programs and facilities available for persons sentenced to terms of less than one year, the court may order that any sentence of six months or more be served in any institution under the jurisdiction of the Department of Correctional Services. Any such certification shall be given by the department to the State Court Administrator, who shall forward
copies thereof to each judge having jurisdiction to sentence in felony cases.

Section 28-106 provides in relevant part:

(2) Sentences of imprisonment in misdemeanor cases shall be served in the county jail, except that in the following circumstances the court may, in its discretion, order that such sentences be served in institutions under the jurisdiction of the Department of Correctional Services:

(a) If the sentence is for a term of one
year upon conviction of a Class I misdemeanor, or for a combined term of one year or more in the event of conviction of more than one misdemeanor offense;

(b) If the sentence is to be served concurrently with a term for conviction of a felony; or

(c) If the Department of Correctional Services has certified as provided in section 28-105 as to availability of facilities and programs for short-term prisoners and the sentence is for a term or combined terms of six months or more.

Although, as you have noted, section 83-482 has been amended subsequent to the enactment of sections 28-105, et seq., we believe the latter sections must be taken as controlling. Initially, sections 28-105, et seq. are substantially more specific than the general language contained in section 83-482. Furthermore, a review of the legislative history of section 83-482 shows that the only amendment of that section which postdates the enactment of sections 28-105, et seq. had as its sole purpose the elimination of gender specific pronouns contained therein and the removal of other sexually discriminatory language. Such modest legislative alteration of an existing statute will not be interpreted as an attempt by the Legislature to substantially alter the meaning of an entirely new body of laws enacted only two years earlier.

The Department of Correctional Services has not certified to the State Court Administrator that it has programs or facilities available for persons sentenced to terms of less than one year pursuant to section 28-105(2). Even if such programs and facilities were available through the Department of Correctional Services sections 28-105 and 28-106 make it clear that only persons facing imprisonment for six months or more should be so sentenced. If section 83-482 were to be read as controlling, a person over the age of fifteen years sentenced to a single day of imprisonment could properly be placed in the custody of the Department of Correctional Services. We cannot believe that it was the intention of our Legislature to create such a result by the most recent amendment of section 83-482.

Therefore, in the absence of a certification of short term commitment programs to the State Court Administrator, a person fifteen years of age or older may only be committed to the custody of the Department of Correctional Services if the total term of imprisonment involved is one year or more. Section 28-105(2); section 28-i06(2) (a) and (b).

2. A person receiving a sentence or sentences totaling less than one year is the legal responsibility of the county of conviction and any expenses incurred by the Department of Correctional Services in accommodating a county's desire to house that prisoner in a Department of Correctional Services facility should be paid by the county of conviction. Section 28-105, et seq.

Sincerely,

PAUL L. DOUGLAS
Attorney General