State v. Kennedy

Summary

The Nebraska Supreme Court held that Neb. Rev. Stat. § 29-2268 does not authorize a probationer to be terminated unsuccessfully from post-release supervision after a violation is found. The court vacated the district court’s excessively lenient sentencing order and remanded for further proceedings, explaining that the court could revoke post-release supervision and impose incarceration or use one of the dispositions enumerated in § 29-2268(3).

Holdings

1. Once the State invokes the revocation process under § 29-2268 and the district court finds a violation of post-release supervision, the court may not use the early-discharge provision of § 29-2263(2) to terminate the supervision unsatisfactorily.
2. After finding a violation of post-release supervision, a district court may either revoke the supervision and impose imprisonment up to the remaining period under § 29-2268(2), or determine revocation is inappropriate and impose one or more dispositions enumerated in § 29-2268(3); it may not impose an unlisted disposition.
3. The district court's order terminating Kennedy's post-release supervision was a sentencing order from which the State could appeal under § 29-2320.
4. The district court's order could not reasonably be construed as revoking post-release supervision and imposing a term of zero months' imprisonment.
5. The hearing procedures and due process protections applicable to probation revocation hearings also apply when a court considers a motion to revoke post-release supervision.

Questions Presented

1. Whether Neb. Rev. Stat. § 29-2268 authorizes a district court to terminate post-release supervision "unsatisfactorily" after finding a violation.
2. Whether the district court's order was a sentence subject to the State's appeal from an excessively lenient sentence.
3. Whether the district court's order could be construed as revoking post-release supervision and imposing a term of zero months' imprisonment.
4. What dispositions are authorized when a district court finds a violation of post-release supervision but determines revocation is inappropriate.
5. Whether the hearing procedures and due process protections applicable to probation revocation hearings also apply to revocation of post-release supervision.

Disposition

vacated_and_remanded