(1) Whenever any person is found guilty of a violation of section 28-303 and the information contains a notice of aggravation as provided in section 29-1603, the district court shall, as soon as practicable, fix a date for an aggravation hearing to determine the alleged aggravating circumstances. If no notice of aggravation has been filed, the district court shall enter a sentence of life imprisonment.
(2) Unless the defendant waives his or her right to a jury determination of the alleged aggravating circumstances, such determination shall be made by:
(a) The jury which determined the defendant's guilt; or
(b) A jury impaneled for purposes of the determination of the alleged aggravating circumstances if:
(i) The defendant waived his or her right to a jury at the trial of guilt and either was convicted before a judge or was convicted on a plea of guilty or nolo contendere; or
(ii) The jury which determined the defendant's guilt has been discharged.
A jury required by subdivision (2)(b) of this section shall be impaneled in the manner provided in sections 29-2004 to 29-2010.
(3) The defendant may waive his or her right to a jury determination of the alleged aggravating circumstances. The court shall accept the waiver after determining that it is made freely, voluntarily, and knowingly. If the defendant waives his or her right to a jury determination of the alleged aggravating circumstances, such determination shall be made by a panel of judges as a part of the sentencing determination proceeding as provided in section 29-2521.
(4)(a) At an aggravation hearing before a jury for the determination of the alleged aggravating circumstances, the state may present evidence as to the existence of the aggravating circumstances alleged in the information. The Nebraska Evidence Rules shall apply at the aggravation hearing.
(b) Alternate jurors who would otherwise be discharged upon final submission of the cause to the jury shall be retained during the deliberation of the defendant's guilt but shall not participate in such deliberations. Such alternate jurors shall serve during the aggravation hearing as provided in section 29-2004 but shall not participate in the jury's deliberations under this subsection.
(c) If the jury serving at the aggravation hearing is the jury which determined the defendant's guilt, the jury may consider evidence received at the trial of guilt for purposes of reaching its verdict as to the existence or nonexistence of aggravating circumstances in addition to the evidence received at the aggravation hearing.
(d) After the presentation and receipt of evidence at the aggravation hearing, the state and the defendant or his or her counsel may present arguments before the jury as to the existence or nonexistence of the alleged aggravating circumstances.
(e) The court shall instruct the members of the jury as to their duty as jurors, the definitions of the aggravating circumstances alleged in the information, and the state's burden to prove the existence of each aggravating circumstance alleged in the information beyond a reasonable doubt.
(f) The jury at the aggravation hearing shall deliberate and return a verdict as to the existence or nonexistence of each alleged aggravating circumstance. Each aggravating circumstance shall be proved beyond a reasonable doubt. Each verdict with respect to each alleged aggravating circumstance shall be unanimous. If the jury is unable to reach a unanimous verdict with respect to an aggravating circumstance, such aggravating circumstance shall not be weighed in the sentencing determination proceeding as provided in section 29-2521.
(g) Upon rendering its verdict as to the determination of the aggravating circumstances, the jury shall be discharged.
(h) If no aggravating circumstance is found to exist, the court shall enter a sentence of life imprisonment. If one or more aggravating circumstances are found to exist, the court shall convene a panel of three judges to hold a hearing to receive evidence of mitigation and sentence excessiveness or disproportionality as provided in subsection (3) of section 29-2521.
Notes of Decisions
Cited in
66
cases (
7 in the last 5 years), 1977–2026 · leading case:
State v. Hochstein, 632 N.W.2d 273 (Neb. 2001).
State v. Hochstein, 632 N.W.2d 273 (Neb. 2001).
· cites it 19× “Pursuant to the 1997 mandate of the Court of Appeals for the Eighth Circuit, three-judge sentencing panels were designated pursuant to Neb. Rev. Stat. § 29-2520 (3) (Reissue 1995).”
State v. Gales, 658 N.W.2d 604 (Neb. 2003).
· cites it 13× “§ 29-2520. Section 29-2521 further provided: In the proceeding for determination of sentence, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to *607 any of the aggravating or mitigating circumstances set…”
State v. Lotter, 917 N.W.2d 850 (Neb. 2018).
· cites it 4× “Neb. Rev. Stat. §§ 29-2520 to 29-2524 (Reissue 1995).”
State v. Jenkins, 303 Neb. 676 (Neb. 2019).
· cites it 4× “See Neb. Rev. Stat. § 29-2520 (3) (Cum. Supp.”
State v. Gales, 694 N.W.2d 124 (Neb. Ct. App. 2005).
· cites it 7× “3) provides that [w]hen a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520, the panel of judges shall, as soon as practicable after receipt of the written report resulting from the presentence investigation…”
State v. Bjorklund, 604 N.W.2d 169 (Neb. 2000).
· cites it 9× “(14) Neb. Rev. Stat. § 29-2520 (Reissue 1995) lacks appropriate standards for impaneling a three-judge panel.”
State v. Ryan, 444 N.W.2d 610 (Neb. 1989).
· cites it 10× “Defendant moved for a three-judge sentencing panel pursuant to Neb. Rev. Stat. § 29-2520 (Reissue 1985).”
State v. Garcia, 994 N.W.2d 610 (Neb. 2023).
· cites it 5× “135 Neb. Rev. Stat. § 29-2522 (Cum. Supp. 2022) provides the guidelines for the three-judge panel’s sentenc- ing determination: The panel of judges for the sentencing determination proceeding shall either unanimously fix the sentence at death or, if the sentence of death was not…”
Ring v. Arizona, 536 U.S. 584 (2002).
· cites it 2× “§ 46-18-301 (1997); Neb. Rev. Stat. § 29-2520 (1995). Four States have hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations.”
State v. Reeves, 604 N.W.2d 151 (Neb. 2000).
· cites it 8× “The statutes are specific regarding the sentencing procedures, and nowhere do they give this court authority to resentence when we have found error on the part of the sentencing court that is not minor and not harmless.”
State v. Trail, 312 Neb. 843 (Neb. 2022).
· cites it 5× “Such sentence determination shall be based upon the following considerations: (1) Whether the aggravating circumstances as deter- mined to exist justify imposition of a sentence of death; (2) Whether sufficient mitigating circumstances exist which approach or exceed the weight…”
State v. Mata, 745 N.W.2d 229 (Neb. 2008).
· cites it 3× “We further recognized that the "aggravation hearing" under Neb.Rev.Stat. § 29-2520 (Cum.Supp.2006) was triggered by a notice of aggravation, which had not been filed.”
— Neb. Rev. Stat. § 29-2520(1) — 1 case
State v. Hochstein, 632 N.W.2d 273 (Neb. 2001).
“Pursuant to the 1997 mandate of the Court of Appeals for the Eighth Circuit, three-judge sentencing panels were designated pursuant to Neb. Rev. Stat. § 29-2520 (3) (Reissue 1995).”
— Neb. Rev. Stat. § 29-2520(2) — 3 cases
State v. Lotter, 917 N.W.2d 850 (Neb. 2018).
“Neb. Rev. Stat. §§ 29-2520 to 29-2524 (Reissue 1995).”
— Neb. Rev. Stat. § 29-2520(2)(b)(ii) — 1 case
State v. Gales, 658 N.W.2d 604 (Neb. 2003).
“§ 29-2520. Section 29-2521 further provided: In the proceeding for determination of sentence, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to *607 any of the aggravating or mitigating circumstances set…”
— Neb. Rev. Stat. § 29-2520(3) — 5 cases
State v. Hochstein, 632 N.W.2d 273 (Neb. 2001).
“Pursuant to the 1997 mandate of the Court of Appeals for the Eighth Circuit, three-judge sentencing panels were designated pursuant to Neb. Rev. Stat. § 29-2520 (3) (Reissue 1995).”
State v. Reeves, 604 N.W.2d 151 (Neb. 2000).
“The statutes are specific regarding the sentencing procedures, and nowhere do they give this court authority to resentence when we have found error on the part of the sentencing court that is not minor and not harmless.”
State v. Garcia, 994 N.W.2d 610 (Neb. 2023).
“135 Neb. Rev. Stat. § 29-2522 (Cum. Supp. 2022) provides the guidelines for the three-judge panel’s sentenc- ing determination: The panel of judges for the sentencing determination proceeding shall either unanimously fix the sentence at death or, if the sentence of death was not…”
State v. Trail, 312 Neb. 843 (Neb. 2022).
“Such sentence determination shall be based upon the following considerations: (1) Whether the aggravating circumstances as deter- mined to exist justify imposition of a sentence of death; (2) Whether sufficient mitigating circumstances exist which approach or exceed the weight…”
— Neb. Rev. Stat. § 29-2520(4)(d) — 1 case
State v. Gales, 694 N.W.2d 124 (Neb. Ct. App. 2005).
“3) provides that [w]hen a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520, the panel of judges shall, as soon as practicable after receipt of the written report resulting from the presentence investigation…”
— Neb. Rev. Stat. § 29-2520(4)(e) — 2 cases
State v. Lotter, 917 N.W.2d 850 (Neb. 2018).
“Neb. Rev. Stat. §§ 29-2520 to 29-2524 (Reissue 1995).”
— Neb. Rev. Stat. § 29-2520(4)(f) — 2 cases
— Neb. Rev. Stat. § 29-2520(4)(g) — 5 cases
State v. Jenkins, 303 Neb. 676 (Neb. 2019).
“See Neb. Rev. Stat. § 29-2520 (3) (Cum. Supp.”
State v. Garcia, 994 N.W.2d 610 (Neb. 2023).
“135 Neb. Rev. Stat. § 29-2522 (Cum. Supp. 2022) provides the guidelines for the three-judge panel’s sentenc- ing determination: The panel of judges for the sentencing determination proceeding shall either unanimously fix the sentence at death or, if the sentence of death was not…”
State v. Trail, 312 Neb. 843 (Neb. 2022).
“Such sentence determination shall be based upon the following considerations: (1) Whether the aggravating circumstances as deter- mined to exist justify imposition of a sentence of death; (2) Whether sufficient mitigating circumstances exist which approach or exceed the weight…”
— Neb. Rev. Stat. § 29-2520(4)(h) — 3 cases
State v. Jenkins, 303 Neb. 676 (Neb. 2019).
“See Neb. Rev. Stat. § 29-2520 (3) (Cum. Supp.”
State v. Gales, 694 N.W.2d 124 (Neb. Ct. App. 2005).
“3) provides that [w]hen a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520, the panel of judges shall, as soon as practicable after receipt of the written report resulting from the presentence investigation…”
— Neb. Rev. Stat. § 29-2520(d)(l) — 1 case
— Neb. Rev. Stat. § 29-2520(h) — 2 cases
State v. Gales, 658 N.W.2d 604 (Neb. 2003).
“§ 29-2520. Section 29-2521 further provided: In the proceeding for determination of sentence, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to *607 any of the aggravating or mitigating circumstances set…”
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