(1) Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state or by the United States or once in this state and once at least in any other state or by the United States, for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be a habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult correctional facility for a mandatory minimum term of ten years and a maximum term of not more than sixty years, except that:
(a) If the felony committed is in violation of section 28-303, 28-304, 28-308, 28-313, 28-319, 28-319.01, 28-502, 28-929, or 28-1222, and at least one of the habitual criminal's prior felony convictions was for a violation of one of the sections listed in this subdivision or of a similar statute in another state or of the United States, the mandatory minimum term shall be twenty-five years and the maximum term not more than sixty years;
(b) If the felony committed is in violation of subsection (3) of section 28-306 and at least one of the prior convictions is in violation of subsection (3) of section 28-306 and the other is in violation of one of the sections set forth in subdivision (a) of this subsection or if the felony committed is in violation of one of the sections set forth in subdivision (a) of this subsection and both of the prior convictions are in violation of subsection (3) of section 28-306, the mandatory minimum term shall be twenty-five years and the maximum term not more than sixty years;
(c) If the felony committed is in violation of subsection (3) of section 28-416 or in violation of sections 28-509 to 28-518 and all of the habitual criminal's prior felony convictions are also violations of such subsection or sections or of a similar statute in another state or of the United States, the mandatory minimum term shall be three years and the maximum term not more than twenty years; and
(d) If a greater punishment is otherwise provided by statute, the law creating the greater punishment shall govern.
(2) When punishment of an accused as a habitual criminal is sought, the facts with reference thereto shall be charged in the indictment or information which contains the charge of the felony upon which the accused is prosecuted, but the fact that the accused is charged with being a habitual criminal shall not be an issue upon the trial of the felony charge and shall not in any manner be disclosed to the jury. If the accused is convicted of a felony, before sentence is imposed a hearing shall be had before the court alone as to whether such person has been previously convicted of prior felonies. The court shall fix a time for the hearing and notice thereof shall be given to the accused at least three days prior thereto. At the hearing, if the court finds from the evidence submitted that the accused has been convicted two or more times of felonies and sentences imposed therefor by the courts of this or any other state or by the United States, the court shall sentence such person so convicted as a habitual criminal.
(3) If the person so convicted shows to the satisfaction of the court before which the conviction was had that he or she was released from imprisonment upon either of such sentences upon a pardon granted for the reason that he or she was innocent, such conviction and sentence shall not be considered as such under this section and section 29-2222.
Notes of Decisions
Cited in
307
cases (
40 in the last 5 years), 1947–2026 · leading case:
State v. Hurbenca, 669 N.W.2d 668 (Neb. 2003).
State v. Hurbenca, 669 N.W.2d 668 (Neb. 2003).
· cites it 30× “NATURE OF CASE Vasile Hurbenca pled guilty to a charge of attempted escape, and the district court for Lancaster County found him to be a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 1995).”
State v. Abejide, 879 N.W.2d 684 (Neb. 2016).
· cites it 22× “As explained below, we reject this assignment of error and affirm the district court’s finding that Abejide was a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2008).”
State v. Drake, 311 Neb. 219 (Neb. 2022).
· cites it 15× “After a stipulated bench trial, the district court found Drake guilty of possession of a controlled substance and found him to be a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2016).”
State v. Haynes, 299 Neb. 249 (Neb. 2018).
· cites it 6× “Count III, habitual criminal, described that Haynes has twice been convicted of a crime, sentenced, and committed to prison for terms of not less than 1 year each and, thus, "is a Habitual *47 Criminal as described in Neb. Rev. Stat. § 29-2221 ." At the same time, under case No.”
Johnson v. Kenney, 654 N.W.2d 191 (Neb. 2002).
· cites it 18× “*49 Johnson was sentenced pursuant to Neb. Rev. Stat. § 29-2221 (1) (Reissue 1995), which requires a mandatory minimum term of 10 years in prison for a habitual criminal conviction.”
State v. Erpelding, 292 Neb. 351 (Neb. 2015).
· cites it 25× “Neb. Rev. Stat. § 29-2221 (Reissue 2008) requires 3 days’ notice of an enhancement hearing and not merely notice of the sentencing hearing.”
State v. Savage, 301 Neb. 873 (Neb. 2018).
· cites it 7× “Savage objected to the offer of the text messages on foundation and hearsay grounds, primarily arguing that the identity of the message author was unclear.”
State v. Briggs, 303 Neb. 352 (Neb. 2019).
· cites it 5× “The district court determined Briggs qualified as a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2016) and sentenced him accordingly.”
State v. Ellis, 333 N.W.2d 391 (Neb. 1983).
· cites it 22× “The first count charged him with the robbery of property of Kentucky Fried Chicken from the personal protection of one Nick Gann, in violation of Neb.”
State v. Burdette, 611 N.W.2d 615 (Neb. 2000).
· cites it 18× “A hearing was held September 22, during which the district court determined that Burdette was a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 1995) and that all five charges, including the charge of first degree sexual assault, second offense, were felonies,…”
Meyer v. Frakes, 884 N.W.2d 131 (Neb. 2016).
· cites it 4× “In Rolling, we stated that State v. Gaston2 set forth the proper procedure to be followed.”
State v. King, 693 N.W.2d 250 (Neb. 2005).
· cites it 8× “Thereafter, King was found to be a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 1995) and was sentenced to 10 to 25 years’ imprisonment for first degree sexual assault, 10 to 25 years’ imprisonment for kidnapping, and 10 to 25 years’ imprisonment for robbery.”
— Neb. Rev. Stat. § 29-2221(1) — 51 cases
Johnson v. Kenney, 654 N.W.2d 191 (Neb. 2002).
“*49 Johnson was sentenced pursuant to Neb. Rev. Stat. § 29-2221 (1) (Reissue 1995), which requires a mandatory minimum term of 10 years in prison for a habitual criminal conviction.”
State v. Briggs, 303 Neb. 352 (Neb. 2019).
“The district court determined Briggs qualified as a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2016) and sentenced him accordingly.”
State v. Hurbenca, 669 N.W.2d 668 (Neb. 2003).
“NATURE OF CASE Vasile Hurbenca pled guilty to a charge of attempted escape, and the district court for Lancaster County found him to be a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 1995).”
— Neb. Rev. Stat. § 29-2221(1)(a) — 1 case
— Neb. Rev. Stat. § 29-2221(1)(c) — 2 cases
— Neb. Rev. Stat. § 29-2221(2) — 13 cases
— Neb. Rev. Stat. § 29-2221(3) — 1 case
— Neb. Rev. Stat. § 29-2221(b) — 1 case
— Neb. Rev. Stat. § 29-2221(l)(a) — 2 cases
State v. Burdette, 611 N.W.2d 615 (Neb. 2000).
“A hearing was held September 22, during which the district court determined that Burdette was a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 1995) and that all five charges, including the charge of first degree sexual assault, second offense, were felonies,…”
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