Nebraska Revised Statute 29-2222
Chapter 29 Section 2222
Hearing; copy of former judgment as evidence.
At the hearing of any person charged with being a habitual criminal, a duly authenticated copy of the former judgment and commitment, from any court in which such judgment and commitment was had, for any of such crimes formerly committed by the party so charged, shall be competent and prima facie evidence of such former judgment and commitment.
- Laws 1921, c. 131, § 2, p. 543;
- C.S.1922, § 10178;
- C.S.1929, § 29-2218;
- Laws 1937, c. 68, § 2, p. 252;
- C.S.Supp.,1941, § 29-2218;
- R.S.1943, § 29-2222;
- Laws 1947, c. 105, § 2, p. 295.
1. Evidence of former judgment and commitment
1. Evidence of former judgment and commitment
At a second habitual criminal hearing following remand, the law-of-the-case doctrine operated to preclude the appellate court from reconsidering, for enhancement purposes, the validity of one of the defendant's prior convictions when defendant conceded its validity in his first direct appeal and did not present materially or substantially different facts regarding that conviction on remand. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
Copies of judicial records related to a defendant's conviction and sentencing in another state that are certified by a deputy clerk for the clerk of the district court in that state as a true and correct copy of the original and impressed with the court's official seal are self-authenticating under section 27-902 and do not require extrinsic evidence of authenticity for admission. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
In a habitual criminal proceeding, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year, (2) the trial court rendered a judgment of conviction for each crime, and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
In habitual criminal proceedings, the existence of a prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
An authenticated record establishing a prior conviction of a defendant with the same name is prima facie sufficient to establish identity for the purpose of enhancing punishment under the provisions of this section and, in the absence of any denial or contradictory evidence, is sufficient to support a finding by the court that the accused has been convicted prior thereto. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).
This section does not confine proof of the defendant's prior convictions to the documents specifically mentioned. State v. Coffman, 227 Neb. 149, 416 N.W.2d 243 (1987).
Judicial records of prior convictions held prima facie sufficient to establish defendant's identity for punishment enhancement. State v. Mills, 199 Neb. 295, 258 N.W.2d 628 (1977).
In the absence of denial or contradictory evidence, an authenticated record of a prior conviction of a defendant with the same name is sufficient to establish identity. State v. Micek, 193 Neb. 379, 227 N.W.2d 409 (1975).
A previous judgment and commitment in the same court may be proved by a certified copy of the judgment and commitment. State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974).
Certified transcript of judgment of conviction constituted prima facie evidence of former conviction. State v. Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966).
This section is a "statutory recipe" for proving former judgments and commitments for habitual criminal purposes and the Legislature has expressly provided that a duly authenticated copy of the former judgment and commitment is competent and prima facie evidence thereof. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003).
There is no requirement that the State prove a prior conviction by a duly authenticated copy of the former judgment and commitment if the defendant admits that he or she was convicted as alleged in the complaint. The State may meet its burden of proving a prior conviction by providing copies of unsigned minute entries when such copies are duly authenticated copies of prior criminal proceedings. State v. Fletcher, 8 Neb. App. 498, 596 N.W.2d 717 (1999).
A certified copy of the judgment which showed that the defendant was convicted and sentenced and a certified copy of the sheriff's return were in substantial compliance with the requirement of proof of commitment for purposes of this section. State v. Lomack, 4 Neb. App. 465, 545 N.W.2d 455 (1996).
Self-authenticated judicial records from another state showing that a defendant was represented by counsel during various stages of his or her jury trial and at sentencing on a felony charge are sufficient to establish that the defendant was represented by counsel at the time of the prior conviction by jury in that state. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
The defendant failed to preserve for appellate review a challenge to the admission of exhibits reoffered at his second habitual criminal hearing following remand when counsel's only stated ground for the objection was that he was not the counsel of record at the original hearing and was not sure the proper objections were made to the exhibits at the original hearing. State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
This section does not confine proof of the defendant's prior convictions to the document specifically mentioned. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).
An enhanced sentence imposed under the provisions of the habitual criminal laws is not a new jeopardy or additional penalty for the same crime. It is simply a stiffened penalty for the latest crime which is considered to be an aggravated offense because it is a repetitive one. Addison v. Parratt, 208 Neb. 459, 303 N.W.2d 785 (1981).
This section gives recognition to fact that probation may be more effective and less expensive than imprisonment, but trial judge did not abuse discretion in sentencing defendant for whom repeated probation for a series of offenses has been tried and failed. State v. Dovel, 189 Neb. 173, 201 N.W.2d 820 (1972).
Defendant is foreclosed from attacking on constitutional grounds a prior conviction unless objection made at time of introduction into evidence. State v. McGhee, 184 Neb. 352, 167 N.W.2d 765 (1969).
This section does not confine the proof on the issue of defendant being an habitual criminal wholly to the documents specified. State v. Bundy, 181 Neb. 160, 147 N.W.2d 500 (1966).
It is proper to set out facts invoking application of Habitual Criminal Act either in the count charging the principal crime or in a separate count in the information. Jones v. State, 147 Neb. 219, 22 N.W.2d 710 (1946).
Judgment imposed under Habitual Criminal Act cannot be set aside on habeas corpus because it does not specify the offense of which a person is convicted. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).