Oftentimes, individuals will come to our firm wondering whether a prior conviction will be used against them in a new court case. Typically, we say yes. A previous criminal charge on your record tends to raise some red flags for judges; however, it impacts more than just the judge’s opinion. Previous criminal convictions can also be used to enhance a current criminal charge under certain statutes. Determining whether your sentence will be enhanced can oftentimes be a difficult process. There are many different factors that can go into play when determining if a sentence will be enhanced.
Sentence Enhancement in Nebraska
Certain statutes will have a more severe punishment for individuals who have previously been convicted of a crime. This holds true in Nebraska. Individuals who have been previously sentenced in the state can be sentenced to more severe punishments than those who have not. This is done to deter repeat offenders. For example, repeat drug offense sentence enhancements could be decided by statutes specific to that issue. Other felony charges could be a general offense and the sentences be enhanced based on a more general statute. Some of the most common sentence enhancements include:
- Habitual Criminal – If you have multiple previous criminal convictions, you may get sentenced as a “habitual offender.”
- Weapon Possession – If you are in possession of a weapon when a crime is committed, you may get charged with an enhanced sentence.
- Location of Crime – If a criminal activity occurs at a place where children often are (park, school, playground, etc), you may have your sentence enhanced.
- Repeat DUI Offenses – Multiple DUI convictions will lead to an enhanced sentence. Sentence enhancement will vary based on the number of prior DUI convictions.
Understanding when a sentence enhancement may occur is important when facing a criminal charge. In some instances, prior out-of-state convictions will be treated differently than those occurring in the same state as a current criminal charge.
Out-of-State Sentence Enhancements
Determining when and why a sentence will be enhanced can be difficult. Convictions in another state can sometimes be used to enhance a current criminal charge. Depending on the circumstances of the case, habitual criminals have a higher chance of receiving a sentence enhancement for prior out-of-state convictions. In Nebraska, there are statutes which state that repeat offenses should be punished more severely. For prior out-of-state convictions, however, the statutes must also expressly note that the same is applied. The most common form of enhancement for prior out-of-state convictions is with driving under the influence under Chapter 60 of the Nebraska Revised Statutes. That chapter specifically allows for the use of out-of-state convictions to be used for enhancement purposes. If the statute does not specifically state that prior out-of-state convictions would lead to an enhanced sentencing, the defendant should not be charged with an enhanced sentence, as noted in State v. Journey.
State v. Journey and Sentence Enhancement
The Nebraska Court of Appeals has held that they would interpret an enhancement clause in such a strict sense in State v. Journey. In Journey, the defendant was charged with sexual assault of a child, in violation of Neb. Rev. Stat. § 28-320.01 (Reissue 1995). The charging statute provided that “sexual assault of a child is a Class IV felony for the first offense and a Class III felony for all subsequent offenses.” Neb. Rev. Stat. § 28-320.01(2) (Reissue 1995). At sentencing, the court denied the State’s request to use a prior conviction for sexual assault of a child from Colorado. The issue on appeal by the State was whether the district court erred in not allowing the State to use an out-of-state conviction for enhancement purposes under Neb. Rev. Stat. § 28-320.01 (Reissue 1995).
The Court rejected the State’s assertion that the statute allowed for enhancement when the prior conviction arises from laws of another state or federal law. The court pointed out that if the Nebraska Legislature intended for out-of-state convictions for sexual assault of a child to be used for enhancement under § 28-320.01(2), the Legislature would have included language to that affect. In essence, prior out-of-state convictions should not be used for enhancement purposes unless expressly stated in the governing statute. Due to the complexity of sentence enhancements, especially as they relate to prior out-of-state convictions, stout legal representation can provide the opportunity to receive the best possible outcome.
Criminal Defense Attorneys
Berry Law’s team of dedicated criminal defense attorneys are committed to protecting the rights of individuals facing criminal charges. If you or somebody you know is facing a criminal charge and is dealing with sentence enhancements, it may be in your best interest to contact an attorney. Contact Berry Law online or at (402) 466-8444 to schedule a consultation today.