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STATE V. GNEWUC

Cite as 316 Neb. 47

State of Nebraska, appellee, v. 

Nathaniel L. Gnewuch, appellant.

___ N.W.2d ___

Filed March 1, 2024. No. S-23-038.

1. Constitutional Law: Statutes: Judgments: Appeal and Error. The 

constitutionality of a statute presents a question of law, which an appellate court is obligated to review independent of the conclusion reached 

by the court below.

2. Constitutional Law: Statutes. No legislative act shall be held unconstitutional except by the concurrence of five judges of the Supreme Court.

3. Statutes. It is not within the province of the courts to read direct and 

plain language out of a statute. No word should be rejected as meaningless or superfluous if it can reasonably be avoided.

4. Convictions: Judgments: Sentences. Although in certain circumstances 

“conviction” may mean a finding of guilty, the judgment in a criminal 

case is, or necessarily includes, the sentence.

5. Convictions: Judgments. The plain language of Neb. Rev. Stat. 

§ 29-2292(1) (Cum. Supp. 2022) requires that the defendant be found 

guilty before making a request of the court to defer the entry of the 

judgment of conviction and that the prosecutor and the defendant have 

an opportunity to be heard regarding the request.

6. Constitutional Law: Statutes: Presumptions. A statute is presumed 

to be constitutional, and all reasonable doubts are resolved in favor of 

its constitutionality.

7. Constitutional Law: Statutes. Where a statute is susceptible of two 

constructions, under one of which the statute is valid while under the 

other it is unconstitutional or of doubtful validity, that construction 

which gives it validity should be adopted.

8. Criminal Law: Courts: Jurisdiction. In a deferred sentence, the district court retains jurisdiction and only a conditional order, not a 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/01/2024 09:17 AM CST
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judgment and sentence, is entered; therefore, there is no “final judgment” in the usual sense.

9. Criminal Law: Courts. In entering an order of deferred judgment, the 

court defers the entry of a judgment of conviction and imposition of a 

sentence and instead enters a conditional order placing the defendant 

on probation. It does not sentence the defendant to probation, as it does 

when it enters a judgment of conviction and imposes sentence.

10. Constitutional Law. The purpose of the Nebraska Constitution is to 

prescribe the permanent framework of our system of government, to 

assign to the three departments their respective powers and duties, and 

to establish certain fixed principles upon which our government is to 

be conducted.

11. ____. Under Nebraska’s plan of government, although the three departments are separate, none can overlook the authority of another department, for all three departments are mutually dependent, which fact 

guarantees that governmental machinery will run smoothly.

12. Statutes: Legislature: Public Policy. It is the function of the Legislature, 

through the enactment of statutes, to declare what is the law and public 

policy of Nebraska.

13. Legislature. The Legislature is not the sovereign authority, and, though 

vested with the exercise of one branch of the sovereignty, the Legislature 

is nevertheless, in wielding it, hedged in on all sides by important 

limitations, some of which are imposed in express terms, and others by 

implications which are equally imperative.

14. Constitutional Law. The chief executive function is to take care that the 

laws be faithfully executed.

15. Constitutional Law: Criminal Law: Prosecuting Attorneys: Probable 

Cause. Prosecutorial discretion is an inherent executive power and one 

of the key aspects of prosecutorial discretion is the charging function, 

which is the power to determine what, if any, charges should be brought 

against a person accused of committing a crime. As a result of the 

charging function, the prosecutor has the discretion to choose to charge 

any crime that probable cause will support or, if the prosecutor chooses, 

not to charge the accused at all.

16. Courts: Sentences. Sentencing is an inherent judicial function and can 

in no way be transferred to a prosecutor.

17. Courts: Legislature: Sentences. Sentencing is necessarily a subjective 

judgment left mainly to the trial court’s discretion, and the boundaries of 

that discretion are a matter for the Legislature.

18. Constitutional Law. The constitutional principle of separation of 

powers demands that in the course of any overlapping exercise of the 
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three branches’ powers, no branch may significantly impair the ability 

of any other in its performance of its essential functions.

19. ____. While longstanding practices of government may not be determinative of a constitutional question, they can inform a determination of 

whether a particular delegation of power is constitutional.

20. Constitutional Law: Criminal Law: Courts: Sentences. Under the 

Nebraska Constitution, the power to define criminal conduct and fix its 

punishment is vested in the legislative branch, whereas the imposition of 

a sentence within these legislative limits is a judicial function.

21. Constitutional Law: Prosecuting Attorneys. The role of the prosecutor, and its executive function, is severely diminished upon a finding 

of guilt.

22. Prosecuting Attorneys: Sentences. While the prosecutor may participate in the sentencing proceedings, the prosecutor may not control or 

decide what a guilty offender’s punishment shall be.

23. Criminal Law: Courts: Sentences. In Nebraska, after a criminal 

defendant is found guilty of an offense, it is then solely the role of the 

judiciary to sentence the defendant.

24. Criminal Law: Courts. Once a criminal defendant’s guilt is established, control over the disposition of the criminal proceeding falls 

exclusively within the judiciary.

25. Constitutional Law. The deferred judgment scheme enacted by the 

Legislature in 2019 Laws, L.B. 686, does not violate the separation of 

powers guaranteed in article II, § 1, of the Nebraska Constitution.

Appeal from the District Court for Madison County: James 

G. Kube, Judge. Judgment reversed, sentence vacated, and 

cause remanded for further proceedings.

Chelsey R. Hartner, Chief Deputy Madison County Public 

Defender, for appellant.

Michael T. Hilgers, Attorney General, and Jordan Osborne 

and Erin E. Tangeman for appellee.

Christopher L. Eickholt, of Eickholt Law, L.L.C., for amicus 

curiae Nebraska Criminal Defense Attorneys Association.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.
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Heavican, C.J.

I. INTRODUCTION

Nathaniel Loren Gnewuch (the record indicates that court 

documents erroneously have Gnewuch’s middle initial as 

“M.”) appeals from his sentence of 18 months’ probation 

after the district court refused to consider his motion for a 

deferred sentence under Neb. Rev. Stat. § 29-2292 (Cum. 

Supp. 2022) because the court concluded that the statute was 

unconstitutional. We granted Gnewuch’s petition to bypass 

the Nebraska Court of Appeals to address the constitutionality 

of § 29-2292.

Article V, § 2, of the Nebraska Constitution provides in 

part: “No legislative act shall be held unconstitutional except 

by the concurrence of five judges.” Because five judges of 

this court do not hold that § 29-2292 is unconstitutional, it 

is constitutional. Accordingly, the district court’s judgment 

is reversed, Gnewuch’s sentence is vacated, and the cause is 

remanded for the district court to consider Gnewuch’s motion 

for deferred judgment.

II. BACKGROUND

In accordance with a plea agreement, Gnewuch pleaded 

guilty to an amended information charging a single count of 

operating a motor vehicle to avoid arrest—willful reckless, 

a Class IV felony, 1 and the State recommended a sentence 

of probation. The charge stemmed from an attempted traffic 

stop, wherein law enforcement officers in marked cruisers 

attempted to stop Gnewuch. Although the officers’ attempt to 

stop Gnewuch was apparent to him, he attempted to outrun 

the officers.

The record and presentence investigation report reflect 

that Gnewuch is a U.S. Marine Corps veteran who moved 

from California to Nebraska to care for his aging grandparents approximately 3 months before the incident. Before his 

1 See Neb. Rev. Stat. § 28-905(3)(a)(iii) (Reissue 2016).
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relocation, Gnewuch was being treated and medicated for 

post-traumatic stress disorder with schizophrenic symptoms 

resulting from his deployment in Afghanistan, where he suffered a traumatic brain injury. However, once in Nebraska, 

Gnewuch was denied such medication by the Department 

of Veterans Affairs until after the incident leading to the 

instant conviction.

Between the plea hearing and sentencing hearing, Gnewuch 

filed a motion for deferred sentence under § 29-2292, and the 

district court took up the motion at the sentencing hearing. In 

support of his motion, Gnewuch emphasized the “mental health 

overlay” in the case and contended that he was a good candidate for a deferred judgment.

The State did not “necessarily believe that [deferred judgment was] a fit for this particular case.” Yet, “[a]bove and 

beyond that,” the State expressed its “serious constitutional 

concerns regarding the deferred sentence statute.” The State 

expressed concern that “there are separation of power issues” 

with the deferred judgment statutes; however, it did not elaborate further on its constitutional concerns. As to sentencing, the State recommended that Gnewuch receive a sentence 

of probation.

The district court denied Gnewuch’s request for a deferred 

judgment, concluding that § 29-2292 was unconstitutional. 

The court reasoned that the deferred judgment statutes violate 

the Nebraska Constitution because the court would be imposing a sentence of probation before the entry of a judgment of 

conviction, and thus, the court lacked jurisdiction to do so 

despite the Legislature’s statutory authorization. Therefore, 

the court did not consider whether a deferred judgment was 

appropriate in this case.

The court proceeded to find that Gnewuch was a qualified candidate for probation and sentenced him to 18 months’ 

probation.

Gnewuch filed a timely appeal and notice of a constitutional question and petitioned this court to bypass the Court 
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of Appeals. 2 We granted his petition. In addition, because 

the State failed to address the constitutionality of § 29-2292 

in its initial brief, we ordered the State to submit a supplemental brief addressing the constitutional question and 

provided Gnewuch with the opportunity to file a supplemental reply brief. Both parties filed supplemental briefs. 

Further, the Nebraska Criminal Defense Attorneys Association 

filed a timely motion to file an amicus brief, 3 which we 

granted. We have considered these briefs in our resolution of 

Gnewuch’s appeal.

III. ASSIGNMENT OF ERROR

Gnewuch’s sole assignment of error is that the lower court 

erred in overruling his motion for deferred sentence pursuant 

to § 29-2292.

IV. STANDARD OF REVIEW

[1,2] The constitutionality of a statute presents a question of 

law, which an appellate court is obligated to review independent of the conclusion reached by the court below. 4 No legislative act shall be held unconstitutional except by the concurrence of five judges of the Supreme Court. 5

V. ANALYSIS

In its initial brief, the State contended that we need not 

reach the constitutionality of § 29-2292 on appeal because it 

is not properly before us due to Gnewuch’s failure to timely 

request a deferred judgment. We first address this contention, 

and because we conclude that it is without merit, we then turn 

to the constitutionality of § 29-2292.

2 Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2022); Neb. Ct. R. App. P. 

§ 2-102(B) (rev. 2022).

3 Neb. Ct. R. App. P. § 2-109(A)(4) (rev. 2023)

4 See State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).

5 Neb. Const. art. V, § 2.
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1. Timeliness of Motion

In its initial brief on appeal, the State argues that the constitutionality of § 29-2292 is not properly before us because 

a deferred judgment “was not available to [Gnewuch] at the 

time he filed his motion.” 6 As the State reads § 29-2292, a 

request for a deferred sentence must be made before the court 

accepts a guilty or no contest plea. The State reasons that 

Gnewuch’s request was not timely because it was made after 

the plea hearing and that thus, the constitutional question is 

not properly before us.

The State did not raise the timeliness of Gnewuch’s motion 

before the district court. As a general rule, an appellate court 

will not consider an argument or theory that is raised for the 

first time on appeal. 7 However, because we have not previously 

interpreted § 29-2292, we determine that it is prudent to consider the State’s argument to ensure that we have jurisdiction 

over Gnewuch’s appeal. 8

The relevant provision is found in § 29-2292(1), which 

states:

Upon a finding of guilt for which a judgment of conviction may be rendered, a defendant may request the 

court defer the entry of judgment of conviction. Upon 

such request and after giving the prosecutor and defend

ant the opportunity to be heard, the court may defer the 

entry of a judgment of conviction and the imposition 

of a sentence and place the defendant on probation, 

upon conditions as the court may require under section 29-2262.

The State focuses on the first clause of the subsection and 

contends that the plain language requires a criminal defendant 

6 Brief for appellee at 8.

7 State v. Kruse, 303 Neb. 799, 931 N.W.2d 148 (2019).

8 Swicord v. Police Stds. Adv. Council, 314 Neb. 816, 822, 993 N.W.2d 

327, 332 (2023) (“[i]f the court from which an appeal was taken lacked 

jurisdiction, then the appellate court acquires no jurisdiction”).
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to request a deferred judgment “at the time of the finding of 

guilt” 9; otherwise, the State reasons, the court cannot “defer 

both the entry of the judgment of conviction and the imposition of a sentence.” 10 Thus, the State asserts that because 

the court “entered the judgment of conviction by finding 

Gnewuch guilty beyond a reasonable doubt[,] . . . Gnewuch 

was no longer eligible to receive a deferred judgment under 

the plain meaning of the statute because it contemplates deferring both the entry of the conviction as well as the imposition 

of the sentence.” 11

The State interprets “judgment of conviction” in § 29-2292(1) 

to be synonymous with the rendering of a finding of guilt. In 

support, the State included the following citation: “See State 

v. Muratella, 314 Neb. 463, 470 (2023) ([n]oting that an entry 

of a judgment of conviction follows the acceptance of a guilty 

or no contest plea).” 12

In State v. Muratella,

 13 we considered whether a new trial 

may be granted under Neb. Rev. Stat. § 29-2101 (Reissue 

2016) to a criminal defendant who pleads guilty or no contest 

when, due to the plea, no trial occurred in the first instance. 

The relevant portion of that statute states that “[a] new trial, 

after a verdict of conviction, may be granted, on the application of the defendant, for any of the [enumerated] grounds . . 

. .” 14 The State’s interpretation seems to arise from our recognition in that case of our longstanding precedent: “[W]hen 

a guilty or no contest plea is accepted and the court enters a 

9 Brief for appellee at 9 (emphasis supplied).

10 Id. at 10.

11 Brief for appellee at 10 (citing State v. Muratella, 314 Neb. 463, 991 

N.W.2d 25 (2023)).

12 Brief for appellee at 10.

13 State v. Muratella, supra note 11.

14 § 29-2101(1).
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judgment of conviction thereon, that is a ‘verdict of conviction’ 

for the purposes of a motion for a new trial.” 15

This particular proposition flows from our decision in State 

v. Lacy.

 16 There, the defendant did not file his motion for a 

new trial within 10 days from the date of the verdict but did 

file it within 10 days from the date of his sentencing. We 

expressly disapproved of prior language that suggested the 

timing requirements could run either “‘after the verdict or 

judgment is rendered.’” 17 We clarified that under the relevant 

statute, see Neb. Rev. Stat. § 29-2103 (Reissue 2016), the timing requirements for a motion for new trial are mandatory and 

run from the date the verdict was rendered, not from the date 

of sentencing, “unless, of course, the verdict and sentencing 

occur on the same day.” 18 Simply, the proposition recognizes 

that even when a judgment of conviction was entered, as was 

the case in State v. Muratella, a motion for new trial is an 

avenue of relief available to a criminal defendant. Furthermore, 

the State overlooks the specific holding of State v. Muratella

that “accepted pleas that result in an adjudgment of guilty are 

‘verdicts of conviction’ under § 29-2101.” 19

[3] Moreover, in its reading of § 29-2292, the State ignores 

the statute’s language qualifying “conviction.” Long ago, we 

recognized that “conviction,” standing alone, can mean either a 

15 State v. Muratella, supra note 11, 314 Neb. at 470, 991 N.W.2d at 30 

(emphasis supplied) (citing State v. Daly, 227 Neb. 633, 418 N.W.2d 767 

(1988)). See State v. Beans, 199 Neb. 807, 261 N.W.2d 749 (1978).

16 State v. Lacy, 195 Neb. 299, 237 N.W.2d 650 (1976). See, also, State v. 

Betts, 196 Neb. 572, 244 N.W.2d 195 (1976).

17 Vacek v. Marburger, 188 Neb. 180, 183, 195 N.W.2d 515, 517 (1972) 

(emphasis supplied) (quoting Stanosheck v. State, 168 Neb. 43, 95 N.W.2d 

197 (1959)).

18 State v. Lacy, supra note 16, 195 Neb. at 305, 237 N.W.2d at 654.

19 State v. Muratella, supra note 11, 314 Neb. at 470, 991 N.W.2d at 31 

(emphasis supplied).
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finding of guilt or a judgment and sentence of the court. 20 But 

“conviction” does not stand alone in § 29-2292. It is not within 

the province of the courts to read direct and plain language out 

of a statute. 21 No word should be rejected as meaningless or 

superfluous if it can reasonably be avoided. 22

[4] In § 29-2292, the Legislature has distinguished between 

the finding of guilt and a judgment of conviction. 23 As Black’s 

Law Dictionary defines “judgment of conviction,” it may 

mean either “[t]he written record of a criminal judgment, 

consisting of the plea, the verdict or findings, the adjudication, and the sentence,” or “[a] sentence in a criminal case.” 24

Likewise, we have held that the “acceptance of a guilty [or 

no contest] plea and [the] entry of a judgment of conviction 

are two separate actions of the court.” 25 Although in certain 

circumstances “conviction” may mean a finding of guilty, 26

20 See Marion v. State, 16 Neb. 349, 20 N.W. 289 (1884). See, also, Yale 

v. City of Independence, 846 S.W.2d 193 (Mo. 1993); Commonwealth v. 

Gorham, 99 Mass. 420 (1868). Cf. Neb. Rev. Stat. § 29-2264 (Cum. Supp. 

2022).

21 See, State v. Godek, 312 Neb. 1004, 981 N.W.2d 810 (2022); City of 

Grand Island v. County of Hall, 196 Neb. 282, 242 N.W.2d 858 (1976); 

Mook v. City of Lincoln, 146 Neb. 779, 21 N.W.2d 743 (1946).

22 See, State v. Yzeta, 313 Neb. 202, 983 N.W.2d 124 (2023); State v. 

Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018); State, ex rel. Marrow, v. 

City of Lincoln, 101 Neb. 57, 162 N.W. 138 (1917); Hagenbuck v. Reed, 3 

Neb. 17 (1873).

23 See, Cascio v. State, 147 Neb. 1075, 25 N.W.2d 897 (1947) (verdict of 

conviction must be supported by competent evidence, if not, appellate 

court sets aside judgment of conviction); Bohanan v. State, 18 Neb. 57, 

24 N.W. 390 (1885) (by jury verdict convicting defendant of lower grade 

of crime, defendant acquitted of higher grade, and judgment of conviction 

was final judgment of case). See, also, Neb. Rev. Stat. §§ 29-1820, 

29-1821, and 29-2201 (Reissue 2016) and 29-2202 (Cum. Supp. 2022).

24 Black’s Law Dictionary 1009 (11th ed. 2019).

25 Jacobson v. Higgins, 243 Neb. 485, 488, 500 N.W.2d 558, 562 (1993). Cf. 

Seling v. State, 18 Neb. 548, 26 N.W. 254 (1886).

26 See, State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001); State v. Kramer, 

231 Neb. 437, 436 N.W.2d 524 (1989).
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the judgment in a criminal case is, or necessarily includes, 

the sentence. 27

[5] We reject the State’s contention that the court rendered 

a judgment of conviction by accepting Gnewuch’s plea. The 

plain language of § 29-2292(1) requires that the defendant be 

found guilty before making a request of the court to defer the 

entry of the judgment of conviction and that the prosecutor 

and the defendant have an opportunity to be heard regarding the request. Because these two requirements were met, 

the question of the constitutionality of § 29-2292 is properly 

before us. Hence, we now turn to the merits of the constitutional question.

2. Constitutionality of Deferred 

Judgment Statutes

[6,7] The principles guiding our review of the constitutionality of a legally enacted statute are well-established. A statute 

is presumed to be constitutional, and all reasonable doubts are 

resolved in favor of its constitutionality. 28 The party challenging the constitutionality of a statute bears the burden to clearly 

establish the unconstitutionality of a statutory provision. 29 It 

is not the province of a court to annul a legislative act unless 

it clearly contravenes the constitution and no other resort 

remains. 30 A penal statute must be construed so as to meet 

constitutional requirements if such can reasonably be done. 31

Where a statute is susceptible of two constructions, under 

one of which the statute is valid while under the other it 

27 See State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000). See, also, 

State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006). Cf. Neb. Rev. Stat. 

§§ 23-919 and 28-306 (Reissue 2016), 28-416 (Supp. 2023), and 29-2546 

(Cum. Supp. 2022).

28 State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021).

29 Id.

30 Id. See Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).

31 State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019).
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is unconstitutional or of doubtful validity, that construction 

which gives it validity should be adopted. 32

We begin with a review of the deferred judgment scheme 

enacted by the Legislature before addressing the district court’s 

conclusion that, under the Nebraska Constitution, it did not 

have jurisdiction to enter an order placing Gnewuch on probation and the State’s argument in its supplemental brief that 

§ 29-2292 violates the separation of powers clause found in 

article II, § 1, of the Nebraska Constitution.

(a) Deferred Judgment Statutes

The Legislature enacted L.B. 686 in 2019, in part, “to 

provide for deferred judgments by courts as prescribed.” 33

Sections 9 to 11 of 2019 Neb. Laws, L.B. 686, now codified 

at § 29-2292 and Neb. Rev. Stat. §§ 29-2293 and 29-2294 

(Cum. Supp. 2022), contain the substantive content regarding 

deferred judgments.

Section 29-2292 provides the procedure for a deferred 

judgment—from the defendant’s request to defer the entry of 

judgment to the criminal action’s final disposition. Section 

29-2292 provides in full:

(1) Upon a finding of guilt for which a judgment of 

conviction may be rendered, a defendant may request the 

court defer the entry of judgment of conviction. Upon 

such request and after giving the prosecutor and defend

ant the opportunity to be heard, the court may defer the 

entry of a judgment of conviction and the imposition of a 

sentence and place the defendant on probation, upon conditions as the court may require under section 29-2262.

(2) The court shall not defer judgment under this section if:

(a) The offense is a violation of section 42-924;

(b) The victim of the offense is an intimate partner as 

defined in section 28-323;

32 In re Interest of T.W., 314 Neb. 475, 991 N.W.2d 280 (2023).

33 2019 Neb. Laws, L.B. 686.
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(c) The offense is a violation of section 60-6,196 

or 60-6,197 or a city or village ordinance enacted in 

conformance with section 60-6,196 or 60-6,197; or

(d) The defendant is not eligible for probation.

(3) Whenever a court considers a request to defer 

judgment, the court shall consider the factors set forth 

in section 29-2260 and any other information the court 

deems relevant.

(4) Except as otherwise provided in this section and 

sections 29-2293 and 29-2294, the supervision of a 

defendant on probation pursuant to a deferred judgment shall be governed by the Nebraska Probation 

Administration Act and sections 29-2270 to 29-2273.

(5) After a hearing providing the prosecutor and defend

ant an opportunity to be heard and upon a finding that a 

defendant has violated a condition of his or her probation, the court may enter any order authorized by section 

29-2268 or pronounce judgment and impose such new 

sentence as might have been originally imposed for the 

offense for which the defendant was convicted.

(6) Upon satisfactory completion of the conditions of 

probation and the payment or waiver of all administrative 

and programming fees assessed under section 29-2293, 

the defendant or prosecutor may file a motion to withdraw any plea entered by the defendant and to dismiss the 

action without entry of judgment.

(7) The provisions of this section apply to offenses 

committed on or after July 1, 2020. For purposes of this 

section, an offense shall be deemed to have been committed prior to July 1, 2020, if any element of the offense 

occurred prior to such date.

In addition, § 29-2293 provides that “[u]pon entry of a 

deferred judgment . . . , the court shall order the defendant to 

pay all administrative and programing fees . . . , unless waived 

. . . .” Finally, § 29-2294 provides that “[a]n entry of deferred 

judgment . . . is a final order as defined in section 25-1902.”
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The Legislature also addressed deferred judgments by way 

of amending three other statutory sections. First:

For purposes of the Nebraska Probation Administration 

Act . . . , unless the context otherwise requires:

. . . .

(4) Probation means a sentence under which a person 

found guilty of a crime . . . is released by a court subject 

to conditions imposed by the court and subject to supervision. Probation includes post-release supervision and 

supervision ordered by a court pursuant to a deferred 

judgment . . . . 34

In addition, the Legislature provided that “[w]hen charges 

are filed, but the case is dismissed by the court . . . after a 

deferred judgment . . . the criminal history record information shall not be part of the public record immediately upon 

notification . . . .” 35 And finally, the Legislature provided that 

a person “on probation pursuant to a deferred judgment for a 

felony” is a prohibited person for the purposes of the offense 

of possession of a deadly weapon by a prohibited person. 36

(b) Jurisdiction of Sentencing Court

In this case, the district court concluded that under the 

Nebraska Constitution, the Legislature could not provide it 

with jurisdiction to impose a sentence of probation before 

the entry of a judgment of conviction. However, the record is 

devoid of any indication as to what led the court to its conclusion. The State did not raise a constitutional jurisdictional argument at the hearing on Gnewuch’s motion, nor has it offered 

any support for the district court’s conclusion on appeal.

34 Neb. Rev. Stat. § 29-2246 (Cum. Supp. 2022) (emphasis supplied). See, 

also, § 29-2246(13) (defining post-release supervision as “portion of a 

split sentence”).

35 Neb. Rev. Stat. § 29-3523(3)(c) (Cum. Supp. 2022) (emphasis supplied).

36 Neb. Rev. Stat. § 28-1206(1)(a)(iv) (Cum. Supp. 2022) (emphasis 

supplied).
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We find nothing in the Nebraska Constitution that prevents 

the Legislature from imbuing the district court with the jurisdiction, upon request by a defendant, to enter an order placing 

the defendant on probation subject to court supervision prior 

to the entry of a final judgment. To the contrary, the Nebraska 

Constitution specifically provides that “district courts shall 

have both chancery and common law jurisdiction, and such 

other jurisdiction as the Legislature may provide.” 37

It may be that in reaching its conclusion, the district court 

relied, at least in part, on our longstanding precedent that a 

sentence validly imposed takes effect from the time it is pronounced, and any subsequent sentence fixing a different term 

is a nullity. 38 This proposition is guided by three distinct principles of law—two constitutional and one statutory.

The first constitutional principle is that “[n]o person shall 

. . . be twice put in jeopardy for the same offense.” 39

[A] district court . . . has no jurisdiction to vacate a 

judgment in a criminal case after the same has gone into 

effect by commitment of the defendant under it, and substitute for it another sentence . . . . To sustain the second 

judgment would be to hold that a person can be twice 

punished by judicial proceedings for the same offense. 

The fundamental law of the state[,] as well as that of the 

United States, forbids that one shall be put twice in jeopardy for the same act. 40

37 Neb. Const. art. V, § 9 (emphasis supplied).

38 E.g., State v. Sullivan, 313 Neb. 293, 983 N.W.2d 541 (2023). See, 

e.g., State v. Williams, 194 Neb. 483, 233 N.W.2d 772 (1975); State v. 

Carpenter, 186 Neb. 605, 185 N.W.2d 663 (1971); Moore v. State, 125 

Neb. 565, 251 N.W. 117 (1933).

39 Neb. Const. art. I, § 12.

40 In re Jones, 35 Neb. 499, 502, 53 N.W. 468, 469 (1892). See, Myers v. 

Fenton, 121 Neb. 56, 236 N.W. 143 (1931); Hickman v. Fenton, 120 Neb. 

66, 231 N.W. 510 (1930). See, also, Ex parte Lange, 85 U.S. 163, 21 L. 

Ed. 872 (1873).
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The second constitutional principle is that a sentencing court’s 

jurisdiction to amend a sentence terminates after judgment, 

the sentence then being within the purview of the Board 

of Parole. 41

[8] However, neither of these constitutional principles are 

violated by the deferred judgment statute. As the Oklahoma 

Court of Criminal Appeals has detailed: “In a deferred sentence, the district court retains jurisdiction and only a conditional order, not a judgment and sentence, is entered; therefore, 

there is no ‘final judgment’ in the usual sense . . . .” 42 Because 

§ 29-2292 authorizes the sentencing court to defer the entry 

of a judgment of conviction and the imposition of a sentence, 

the district court had jurisdiction to enter an order placing the 

defendant on probation.

[9] The Legislature revised our probation statutes in 1971 

and provided that probation is a sentence. 43 However, in its 

2019 enactment of L.B. 686, the Legislature amended the 

definition of “[p]robation” to include “supervision ordered 

by a court pursuant to a deferred judgment” to facilitate the 

employment of deferred judgments in Nebraska. 44 Under the 

current deferred judgment procedure of § 29-2292, the court 

defers the entry of a judgment of conviction and imposition 

of a sentence and instead enters a conditional order placing 

41 See, Neb. Const. art. IV, § 13; State v. Carpenter, supra note 38. See, also, 

State v. Spady, 264 Neb. 99, 645 N.W.2d 539 (2002).

42 Nguyen v. State, 772 P.2d 401, 403 (Okla. Crim. App. 1989), overruled 

on other grounds, Gonseth v. State, 871 P.2d 51 (Okla. Crim. App. 1994). 

See, also, Black’s Law Dictionary 1007 (11th ed. 2019) (term “deferred 

judgment” defined as “[a] conditional judgment placing a convicted 

defendant on probation, the successful completion of which will prevent 

entry of the underlying judgment of conviction”).

43 1971 Neb. Laws, L.B. 680, § 15(4); § 29-2246(4) (Reissue 2016). See 

State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975), overruled on other 

grounds, State v. Kramer, 231 Neb. 437, 436 N.W.2d 524 (1989).

44 2019 Neb. Laws, L.B. 686, § 7; § 29-2246(4) (Cum. Supp. 2022). Cf. 

§ 29-2246(13) (post-release supervision is portion of split sentence).
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the defendant on probation. 45 It does not sentence the defend

ant to probation, as it does when it enters a judgment of conviction and imposes sentence. 46

In this manner, deferred judgments operate in the same 

way as probation had in Nebraska from its inception in 1913 

(1913 Probation Act), until the 1971 revisions. 47 Under the 

1913 Probation Act, any court could, “in its discretion, enter 

an order, without pronouncing sentence, suspending further 

proceedings and placing the accused on probation under the 

charge and supervision of a probation officer.” 48 When the 

“court suspend[ed] sentence and place[d] a defendant on 

probation,” it had to “determine the conditions and period 

of probation, which [could] not exceed, in the case of any 

defendant convicted of an offense less than a felony, two 

years; and in the case of any defendant convicted of a felony, 

five years.” 49

Notably, we held that a district court was empowered by 

statute to exercise its discretion, upon the plea of guilty and 

before pronouncing sentence, and enter an order suspending 

further proceedings, place a defendant on probation, and in 

the event of a violation of probationary conditions, impose 

sentence. 50 But this is only before pronouncing sentence. We 

recognized that under that act, the word “suspend” meant to 

delay or withhold because “upon a revocation of the probationary order the court may impose any sentence which it 

45 See § 29-2292(1).

46 See Neb. Rev. Stat. §§ 29-2262(1) (Cum. Supp. 2022) and 29-2263(2) 

(Reissue 2016). Cf. Neb. Rev. Stat. § 28-105(4) (Cum. Supp. 2022).

47 See, Rev. Stat. §§ 9149 and 9150 (1913); Casper v. State, 100 Neb. 367, 

160 N.W. 92 (1916). See, also, Sellers v. State, 105 Neb. 748, 181 N.W. 

862 (1921). Cf. State v. Randolph, 183 Neb. 506, 162 N.W.2d 123 (1968).

48 § 9149 (emphasis supplied). See, Moore v. State, supra note 38; Sellers v. 

State, supra note 47.

49 § 9150.

50 See Sellers v. State, supra note 47.
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might have imposed prior to placing defendant on probation.” 51

Accordingly, a sentencing court was empowered to place a 

defendant on probation only before imposing sentence, and 

it was statutorily divested of its jurisdiction after a sentence 

had been pronounced. Thus, under that act, it was improper 

to pronounce the sentence first and then place the defendant 

on probation.

Certainly, “defer” is a synonym of “suspend” 52 and means 

“to put off” or “delay.” 53 As it had done with the 1913 

Probation Act, “[t]he [L]egislature had in mind that, upon 

a showing made, the court might place the defendant upon 

probation without passing sentence.” 54 In authorizing deferred 

judgments, the Legislature has once again provided sentencing courts with jurisdiction to enter an order and place a 

defendant on probation without imposing sentence, just as 

they had from 1913 to 1971.

We have not been directed to, nor have we found, any 

constitutional provision that precludes the Legislature from 

providing the sentencing court with jurisdiction to defer the 

entry of judgment of conviction and the imposition of a 

sentence and place the defendant on probation as it has in 

§ 29-2292. Ultimately, the Nebraska Constitution provides 

the Legislature with the authority to provide the district courts 

with jurisdiction. 55 Therefore, it is unnecessary for us to 

51 Moore v. State, supra note 38, 125 Neb. at 568, 251 N.W. at 118.

52 “Defer,” Merriam Webster.com, https://www.merriam-webster.com/

thesaurus/defer (last visited Feb. 23, 2024).

53 “Defer,” Merriam Webster.com, https://www.merriam-webster.com/

dictionary/defer (last visited Feb. 23, 2024).

54 Moore v. State, supra note 38, 125 Neb. at 568, 251 N.W. at 118. See, 

also, Roberts v. United States, 320 U.S. 264, 272, 64 S. Ct. 113, 88 L. 

Ed. 41 (1943) (“Congress conferred upon the courts the power to decide 

in each case . . . depend[ing] upon the character and circumstances of the 

individual offender”).

55 See, also, State v. Nuss, 190 Neb. 755, 212 N.W.2d 565 (1973).
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address whether such a conditional order would fall under the 

district courts’ chancery or common-law jurisdiction.

Yet, our determination that the district court erroneously 

concluded that it did not have jurisdiction and failed to consider 

whether a deferred judgment was appropriate in Gnewuch’s 

case does not end our analysis. As the State points out, a correct result will not be set aside merely because the lower court 

applied the wrong reasoning in reaching that result. 56 Hence, 

we now consider the State’s argument that § 29-2292 violates 

article II, § 1, of the Nebraska Constitution.

(c) Separation of Powers

The State contends that § 29-2292 is unconstitutional 

because it violates the separation of powers clause of the 

Nebraska Constitution by allowing the judiciary to impermissibly invade one of the key aspects of the executive function 

of prosecutorial discretion: the charging function. The State 

reasons that § 29-2292 is constitutionally infirm because the 

satisfactory completion of the court’s conditions of probation may result in the dismissal of the action without entry 

of judgment under § 29-2292(6); thus, the statute impermissibly allows a court to prevent the prosecution of an offense 

by authorizing, as the State characterized at oral argument, 

“unjustified judicial interference.”

Yet, Gnewuch maintains that § 29-2292 presents no constitutional issue. He asserts that after a criminal defendant is 

found guilty of a charge, “any prosecutorial discretion power 

is now complete and the decision to defer judgment and possibly dismiss the charge rests with the judiciary as part of its 

sentencing discretion.” 57 The State agreed at oral argument 

that the determinative fact of § 29-2292’s constitutionality 

is whether deferring judgment and potentially dismissing the 

56 State v. Devers, 313 Neb. 866, 986 N.W.2d 747 (2023).

57 Supplemental reply brief for appellant at 9.
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action upon a criminal defendant’s successful completion of 

probationary terms and conditions constitutes a judicial sentencing decision.

Thus, to resolve this appeal, we consider whether a sentencing court’s deferral of the entry of a judgment of conviction 

and imposition of a sentence and potential dismissal of the 

action falls within the sentencing function of the judiciary, or 

whether such action invades the executive charging function in 

violation of article II, § 1, of the Nebraska Constitution.

(i) Cited Extrajurisdictional Case Law

In support of their opposing positions, the parties each cite 

one judicial decision from different states. The State points 

us to a decision of the Supreme Court of Kentucky, 58 whereas 

Gnewuch points us to a decision of the Nevada Supreme 

Court. 59

In Flynt v. Com.,

 60 the issue before the Supreme Court of 

Kentucky was a narrow question of statutory interpretation. The 

statutory provision at issue stated that “[t]he Commonwealth’s 

attorney shall make a recommendation upon each application 

for pretrial diversion to the Circuit Judge in the court in which 

the case would be tried. The court may approve or disapprove 

the diversion.” 61 Under Kentucky’s pretrial diversion program, 

“[i]f the defendant successfully completes the provisions of the 

pretrial diversion agreement, the charges against the defendant 

shall be listed as ‘dismissed-diverted’ and shall not constitute 

a criminal conviction.” 62

58 See Flynt v. Com., 105 S.W.3d 415 (Ky. 2003).

59 See State v. Second Judicial District Court, 134 Nev. 783, 432 P.3d 154 

(2018).

60 Flynt v. Com., supra note 58.

61 See Ky. Rev. Stat. Ann. § 533.250(6) (LexisNexis 2014).

62 Ky. Rev. Stat. Ann. § 533.258 (LexisNexis 2014).
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The Supreme Court of Kentucky framed the question presented in that case as whether “a circuit court has the authority 

to approve a pretrial diversion application over the Common

wealth’s objection.” 63 It ultimately reasoned that “unlike a 

sentence of imprisonment, probation, or conditional discharge, 

admission into a diversion program permits a defendant who 

successfully completes diversion to avoid a felony conviction 

entirely,” and it concluded that the judiciary cannot interrupt 

a prosecution prior to a final disposition and that allowing 

a court to approve a pretrial diversion application over the 

prosecution’s objection “would upset the separation of powers 

mandated by Kentucky’s Constitution.” 64

By contrast, in State v. Second Judicial District Court,

 65

the Nevada Supreme Court considered a statutory provision “which provide[d] that a district court may not assign a 

defendant to [a veterans court] program without the prosecutor’s agreement.” Similar to our deferred judgment statute, 

after a finding of guilty, the statute at issue provided that 

a court may, “[w]ithout entering a judgment of conviction 

and with the consent of the defendant, suspend or defer further proceedings and place the defendant on probation upon 

terms and conditions . . . .” 66 Upon fulfillment of the terms 

and conditions, the court shall or may “discharge the defend

ant and dismiss the proceedings,” depending on particular 

circumstances. 67

The Nevada Supreme Court reasoned that “once a defend

ant’s guilt has been determined, the prosecutor’s charging discretion is complete and the judiciary’s sentencing discretion, 

63 Flynt v. Com., supra note 58, 105 S.W.3d at 423.

64 Id. at 424. See Ky. Const. §§ 27 and 28.

65 State v. Second Judicial District Court, supra note 59, 134 Nev. at 785, 

432 P.3d at 157-58.

66 See Nev. Rev. Stat. § 176A.290 (2021).

67 Nev. Rev. Stat. § 176A.290(3).
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if any, is all that remains.” 68 It concluded that “a court’s decision to assign a defendant to the veterans court program is a 

sentencing decision—it is a statutorily approved alternative 

to entering a judgment of conviction and imposing a term 

of incarceration.” 69

Like our deferred judgment statute, both Kentucky’s and 

Nevada’s statutes require a finding of guilt, and if the court’s 

terms and conditions of probation are completed, both statutory 

schemes can result in the dismissal of the proceedings, allowing the defendant to avoid a felony conviction.

However, despite the courts’ ultimate holdings in these cases, 

neither decision persuasively answers the question before us. 

We note that in Kentucky:

If the defendant fails to complete the provisions of the 

pretrial diversion agreement within the time specified, or 

is not making satisfactory progress toward the completion of the provisions of the agreement, . . . the attorney 

for the Commonwealth . . . may apply to the court for a 

hearing to determine whether or not the pretrial diversion 

agreement should be voided [and,] [i]f the court voids the 

pretrial diversion agreement, . . . [t]he prosecutor shall 

decide whether or not to proceed on the plea of guilty in 

accordance with the law. 70

Whereas, Nevada’s veterans program statutes, like our 

deferred judgment statute, provide that when a defendant 

violates a term or condition of the probation order the court

68 Second Judicial District Court, supra note 59, 134 Nev. at 787, 432 P.3d 

at 159 (citing State v. Ramsey, 171 Ariz. 409, 831 P.2d 408 (Ariz. App. 

1992)). See, State v. Prentiss, 163 Ariz. 81, 786 P.2d 932 (1989); People 

v. Navarro, 7 Cal. 3d 248, 497 P.2d 481, 102 Cal. Rptr. 137 (1972); State 

v. Olson, 325 N.W.2d 13 (Minn. 1982). See, also, Stromberg v. Second 

Judicial District Court, 125 Nev. 1, 200 P.3d 509 (2009).

69 Second Judicial District Court, supra note 59, 134 Nev. at 787, 432 P.3d 

at 159. See, also, Locker v. State, ___ Nev. ___, 516 P.3d 149 (2022).

70 Ky. Rev. Stat. Ann. § 533.256 (LexisNexis 2014) (emphasis supplied).
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may “impose sanctions” or “enter a judgment of conviction.” 71

This distinction was not mentioned in either case.

Moreover, in Flynt v. Com., the Supreme Court of Kentucky 

did not identify why a prosecution must result in a felony 

conviction or acquittal and why “‘dismissed-diverted’” did 

not qualify as a final disposition. 72 Nor did it address its prior 

precedent suggesting that the prosecutor’s function concludes 

upon the finding of a verdict and its recognition that a court 

could defer or suspend the imposition of a sentence. 73 Nor 

did the Nevada Supreme Court provide any authority analogous to Nebraska law for its conclusion that the prosecutor’s 

charging discretion is complete once a defendant’s guilt has 

been determined.

While these courts reached conclusions favorable to the parties’ respective arguments, neither court provided reasoning 

that answers the question as to where the executive charging 

function ends and the judicial sentencing function begins under 

Nebraska law.

(ii) Nebraska Separation of 

Powers Principles

[10] The purpose of the Nebraska Constitution is to prescribe the permanent framework of our system of government, to assign to the three departments their respective 

71 Nev. Rev. Stat. § 176A.290(2).

72 See Flynt v. Com., supra note 58, 105 S.W.3d at 426.

73 See, Prater v. Com., 82 S.W.3d 898 (Ky. 2002); Com. v. Corey, 826 

S.W.2d 319 (Ky. 1992); Allen v. Walter, 534 S.W.2d 453 (Ky. 1976);

Commonwealth v. Fanelli, 445 S.W.2d 126 (Ky. 1969); Huggins v. 

Caldwell, 223 Ky. 468, 3 S.W.2d 1101 (1928); Commonwealth v. Hughes, 

153 Ky. 34, 154 S.W. 399 (1913); Commonwealth v. Cundiff, 149 Ky. 37, 

147 S.W. 767 (1912). See, also, Jones v. Commonwealth, 319 S.W.3d 295 

(Ky. 2010); Ratliff v. Commonwealth, 719 S.W.2d 445 (Ky. App. 1986), 

overruled on other grounds, Commonwealth v. Ramsey, 920 S.W.2d 526 

(Ky. 1996).
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powers and duties, and to establish certain fixed principles 

upon which our government is to be conducted. 74 Under Neb. 

Const. art. II, § 1:

The powers of the government of this state are divided 

into three distinct departments, the legislative, executive, 

and judicial, and no person or collection of persons being 

one of these departments shall exercise any power properly belonging to either of the others except as expressly 

directed or permitted in [the] Constitution. 75

[11] The purpose of this section was to establish and maintain the independence of “the three branches” of the government. 76 It is the beam from which our system of checks and 

balances is suspended. 77 “This arrangement gives each department a certain independence, which operates as a restraint 

upon such action of the others as might encroach on the rights 

and liberties of the people, and makes it possible to establish 

and enforce guaranties against attempts at tyranny.” 78 Under 

Nebraska’s plan of government, although the three departments are separate, none can overlook the authority of another 

department, for all three departments are mutually dependent, which fact guarantees that governmental machinery will 

run smoothly. 79

[12,13] We have recognized that the Legislature is in 

many ways the strongest of the three departments, being 

restrained only by the Constitution of our state. 80 We have also 

74 State, ex rel. Randall, v. Hall, 125 Neb. 236, 249 N.W. 756 (1933).

75 Neb. Const. art. II, § 1.

76 State, ex rel. Randall, v. Hall, supra note 74, 125 Neb. at 242, 249 N.W. at 

759.

77 Polikov v. Neth, 270 Neb. 29, 699 N.W.2d 802 (2005).

78 Thomas M. Cooley, The General Principles of Constitutional Law in the 

United States of America 43 (1880).

79 State, ex rel. Randall, v. Hall, supra note 74.

80 Id.
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recognized that the legislative department enacts the laws 

by which both of the other departments are controlled and 

bound. 81 It is the function of the Legislature, through the 

enactment of statutes, to declare what is the law and public 

policy of this state. 82 However, the Legislature is “‘not the 

sovereign authority, and[,] though vested with the exercise of 

one branch of the sovereignty, they are nevertheless, in wielding it, hedged in [on] all sides by important limitations, some 

of which are imposed in express terms, and others by implications which are equally imperative.’” 83

[14,15] Meanwhile, the chief executive function is to “take 

care that the laws be faithfully executed.” 84 The State is correct in that prosecutorial discretion is an inherent executive 

power and one of the key aspects of prosecutorial discretion 

is the charging function, which is the power to determine 

what, if any, charges should be brought against a person 

accused of committing a crime. 85 We have recognized that 

as a result of the charging function, the prosecutor has the 

discretion to choose to charge any crime that probable cause 

will support or, if the prosecutor chooses, not to charge the 

accused at all. 86

81 Id.

82 Bogue v. Gillis, 311 Neb. 445, 973 N.W.2d 338 (2022). See Henni v. 

Fidelity Building. & Loan Ass’n, 61 Neb. 744, 86 N.W. 475 (1901). See, 

also, Neb. Const. art. III.

83 In re House Roll 284, 31 Neb. 505, 510, 48 N.W. 275, 276 (1891) (quoting 

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which 

Rest Upon the Legislative Power of the States of the American Union 102 

(6th ed. 1890)).

84 Neb. Const. art. IV, § 6.

85 See Polikov v. Neth, supra note 77. See, also, State v. Moore, 210 Neb. 

457, 316 N.W.2d 33 (1982); State v. Grayer, 191 Neb. 523, 215 N.W.2d 

859 (1974).

86 See Polikov v. Neth, supra note 77.
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[16,17] It is expressly a judge’s function to “admit persons 

charged with felony to a plea of guilty and pass such sentence as may be prescribed by law.” 87 It is well established 

that sentencing is an inherent judicial function and can in no 

way be transferred to a prosecutor. 88 Sentencing is necessarily 

a subjective judgment left mainly to the trial court’s discretion, and the boundaries of that discretion are a matter for 

the Legislature. 89 The imposition of punishment is a nondelegable authority. 90

[18] The three branches sometimes overlap in the exercise 

of their constitutionally delegated powers. 91 This overlap may 

sometimes result in the three departments having a limited 

partial agency in or control over the acts of each other. 92 But 

the constitutional principle of separation of powers demands 

that in the course of any overlapping exercise of the three 

branches’ powers, no branch may significantly impair the ability of any other in its performance of its essential functions. 93

An analysis of the overlapping exercise of constitutionally 

delegated powers focuses on the extent to which one branch 

is prevented from accomplishing its constitutionally assigned 

87 Neb. Const. art. V, § 9.

88 See State v. Griger, 190 Neb. 405, 208 N.W.2d 672 (1973). See, also, 

State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018); State v. Von Dorn, 

234 Neb. 93, 449 N.W.2d 530 (1989); State v. Evans, 194 Neb. 559, 234 

N.W.2d 199 (1975), disapproved on other grounds, State v. Minshall, 227 

Neb. 210, 416 N.W.2d 585 (1987). Cf., Neb. Const. art. V, § 9; State v. 

Reeves, supra note 27.

89 State v. Ezell, 314 Neb. 825, 993 N.W.2d 449 (2023). See Geiger v. The 

State, 6 Neb. 545 (1877).

90 See State v. Lee, 237 Neb. 724, 467 N.W.2d 661 (1991).

91 State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017).

92 Id.

93 Id.
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functions, balanced against the other branch’s need to promote 

the objectives within its constitutional authority. 94

Ultimately, it is the nature of the function that determines 

whether a particular function is legislative, executive, or 

judicial. 95

(iii) Nature of Function

Although logic would seem to dictate that a prosecutor’s 

discretion to bring charges is complete once those charges 

are proved, the State asserts that a delay in judgment and the 

potential later dismissal of those charges invades the purview 

of the executive function. In essence, the State’s position is 

that the Legislature is empowered to enact statutes providing 

for “deferred prosecution” but not “deferred judgment.” The 

definitions of these terms found in Black’s Law Dictionary 

illuminate the distinction. The term “deferred prosecution” 

is defined as “(1946) 1. [a]n agreement between the prosecution and a defendant to either drop or delay prosecution in 

exchange for some type of cooperation.” 96 The term “deferred 

judgment” is defined as “(1896) [a] conditional judgment placing a convicted defendant on probation, the successful completion of which will prevent entry of the underlying judgment 

of conviction.” 97

[19] Although the fact that probation operated as a deferred 

judgment scheme for almost 60 years in Nebraska, it appears 

that the 1913 Probation Act was never subject to a constitutional challenge. While longstanding practices of government may not be determinative of a constitutional question, 

as the U.S. Supreme Court has recognized, they can inform 

94 Id.

95 See Lux v. Mental Health Board of Polk County, 202 Neb. 106, 274 

N.W.2d 141 (1979).

96 Black’s Law Dictionary 533 (11th ed. 2019).

97 Id. at 1007.
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a determination of whether a particular delegation of power 

is constitutional. 98

We also note that the U.S. Supreme Court has long held that 

Congress has the power to confer jurisdiction on the court to 

defer the imposition of a sentence, as well as suspend a sentence’s execution. 99

[T]he basic purpose of probation [is] namely to provide 

an individualized program offering a young or unhardened offender an opportunity to rehabilitate himself 

[or herself] without institutional confinement under the 

tutelage of a probation official and under the continuing power of the court to impose institutional punishment for his [or her] original offense in the event that 

he [or she] abuse this opportunity. To accomplish this 

basic purpose Congress vested wide discretion in the 

courts. See Burns v. United States, 287 U.S. 216. Thus[,] 

Congress conferred upon the courts the power to decide 

in each case whether to impose a definite term of imprisonment in advance of probation or to defer the imposition of sentence, the alternative to be adopted to depend 

upon the character and circumstances of the individual 

offender. 100

We observe, and the State also notes, that unlike the 

U.S. Constitution, the Nebraska Constitution contains an 

98 See, Trump v. Mazars USA, LLP, ___ U.S. ___, 140 S. Ct. 2019, 207 L. 

Ed. 2d 951 (2020); NLRB v. Noel Canning, 573 U.S. 513, 134 S. Ct. 2550, 

189 L. Ed. 2d 538 (2014); The Pocket Veto Case, 279 U.S. 655, 49 S. Ct. 

463, 73 L. Ed. 894 (1929); M’Culloch v. State of Maryland, 17 U.S. (4 

Wheat.) 316, 4 L. Ed. 579 (1819).

99 Roberts v. United States, supra note 54. See, United States v. Murray, 275 

U.S. 347, 48 S. Ct. 146, 72 L. Ed. 309 (1928); Ex parte United States, 242 

U.S. 27, 37 S. Ct. 72, 61 L. Ed. 129 (1916); Ex parte Lange, supra note 

40.

100Roberts v. United States, supra note 54, 320 U.S. at 272. See United States 

v. Murray, supra note 99.
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express separation of powers provision. Unlike the Nebraska 

Constitution, the federal Constitution has no express provision 

that prohibits the officials of one branch of government from 

exercising the functions of the other branches. 101 The federal 

separation of powers principle is inferred from the overall 

structure of the U.S. Constitution. 102 In contrast, Neb. Const. 

art. II, § 1, prohibits one department of government from 

encroaching on the duties and prerogatives of the others or 

from improperly delegating its own duties and prerogatives, 

except as the Constitution itself otherwise directs or permits. 103

Thus, the federal doctrine is not as rigorous as that imposed by 

the Constitution of this state. 104

[20] Under our constitution, the power to define criminal 

conduct and fix its punishment is vested in the legislative 

branch, whereas the imposition of a sentence within these 

legislative limits is a judicial function. 105 It has been long 

established and well settled that the defining of a criminal act 

is purely a legislative function. 106 Similarly, the Legislature 

has the authority to fix the penalty range that can be imposed 

for the crimes it has defined. 107 The Legislature determines 

the nature of the penalty imposed, and so long as that 

101 State v. Philipps, 246 Neb. 610, 521 N.W.2d 913 (1994). See, also, Polikov 

v. Neth, supra note 77.

102 Id.

103 Id.

104 Id.

105 State v. Knight, 311 Neb. 485, 973 N.W.2d 356 (2022). See, State v. 

Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016); State v. Divis, 256 Neb. 

328, 589 N.W.2d 537 (1999). See, also, Painter v. Ives, 4 Neb. 122 (1875).

106 State v. Divis, supra note 105. See, State v. Burlison, 255 Neb. 190, 

583 N.W.2d 31 (1998); State v. Tatreau, 176 Neb. 381, 126 N.W.2d 157 

(1964); State, ex rel. Nelson, v. Smith, 114 Neb. 653, 209 N.W. 328 (1926); 

McMahon v. State, 70 Neb. 722, 97 N.W. 1035 (1904); Davis v. State, 

supra note 30.

107 Id.
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determination is consistent with the Constitution, it will not 

be disturbed by the courts on review. 108 Once the Legislature 

has defined the crime and the corresponding punishment for 

a violation of the crime, it is the responsibility of the judicial 

branch to apply those punishments according to the nature 

and range established by the Legislature. 109

Even though the Legislature has defined that after an order 

of deferred judgment, the court may “dismiss” the action, the 

conditional order placing the offender on probation still subjects that offender to a form of criminal punishment, subjecting 

the offender to a deprivation of his or her personal liberty. 110

We read the deferred judgments statutes as an attempt to further the same purpose that we recognized the 1913 Probation 

Act served:

Obviously[,] the intent of the Legislature is to give the 

sentencing judge, when he [or she] suspends sentence, 

appropriate latitude to tailor individualized conditions of 

probation with the objective of accomplishing the rehabilitative purposes of the probationary act. . . . To interpret 

[the act] otherwise would be to emasculate the purposes 

of a probation act and return it to the limbo of the archaic 

notion that probation constituted merely an act of clemency or mercy. 111

In addition, the U.S. Supreme Court has recognized that 

a felony judgment of conviction means a felon is “subject 

to all the disabilities flowing from such a judgment.” 112

108 State v. Divis, supra note 105.

109 See id.

110 See Sellers v. State, supra note 47, 105 Neb. at 750, 181 N.W. at 863 

(noting defendant placed on probation under deferred judgment was 

“in the constructive custody of the district court with restrictions on his 

liberty”).

111 State v. Duitsman, 186 Neb. 39, 41, 180 N.W.2d 685, 686 (1970).

112 Berman v. United States, 302 U.S. 211, 213, 58 S. Ct. 164, 166, 82 L. Ed. 

204 (1937). See, also, United States v. Murray, supra note 99.
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Certainly, the Legislature has provided for a variety of civil 

penalties to flow from a judgment of conviction. 113 As it is 

within the Legislature’s power to institute these penalties, it 

is only logical that it is within its power to provide that in 

an appropriate case, a guilty defendant can avoid them. We 

note that in providing for deferred judgments, the Legislature 

considered that a felony judgment of conviction subjects an 

individual to

social ills that follow [a convicted felon] for the rest of 

[his or her] life. This [bill] is a way to remove some of 

that. [It would] provide opportunities for those who make 

mistakes one or two times, particularly the first time, to 

not have a felony around them, holding them back for the 

rest of their life. 114

Despite the Legislature’s choice to term one potential final 

disposition of the criminal action after the deferral of judgment a “dismissal,” an offender does not escape all criminal 

punishment under § 29-2292. Instead, the Legislature has 

provided an opportunity for an offender to show that he or she 

is capable of rehabilitation before the entry of a judgment of 

conviction and made it possible for that offender to potentially 

avoid being subject to the legislatively instituted legal disabilities that flow from a felony conviction.

We cannot subscribe to the theory that the mere use of 

the term “dismiss” in relation to criminal charges creates a 

constitutional problem. In utilizing the term “dismissal” as a 

possible judicial final disposition in § 29-2262, Nebraska has 

113 See, e.g., § 29-2264. Cf., e.g., State v. Dolinar, 315 Neb. 257, 995 N.W.2d 

18 (2023); State v. Brunsen, 311 Neb. 368, 972 N.W.2d 405 (2022); State 

v. Spady, supra note 41; State v. Holmes, 221 Neb. 629, 379 N.W.2d 765 

(1986); McHenry v. Nebraska Liquor Control Comm., 5 Neb. App. 95, 555 

N.W.2d 350 (1996).

114 Judiciary Committee Hearing, L.B. 91, 106th Leg., 1st Sess. 64 (Mar. 20, 

2019).
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joined, in addition to Nevada, at least 21 other states 115 and 

the federal government 116 in authorizing a court to “dismiss” 

proceedings without the consent of the prosecution.

Moreover, we note that under § 29-2292, after a defend

ant is found guilty, the final disposition of the criminal case 

remains with the sentencing court and subject to its discretion. 

Despite a defendant’s request, whether a deferred judgment is 

appropriate in any case is a sentencing decision. So, too, is the 

final determination of whether an action should be dismissed 

or a judgment of conviction entered, no matter which party 

files a motion. At each stage of the deferred judgment process, 

the parties can present their arguments to the court, but the 

sentencing decision remains with the court. In all respects, 

this is what happens during any sentencing hearing.

[21] Thus, the question ultimately before us is whether the 

Nebraska Constitution requires a judgment of conviction to 

be entered upon a finding of guilt as a protection of executive power and its charging function. However, the State does 

not point us to, nor can we find, any such requirement in the 

constitution. Furthermore, our precedent recognizes that the 

115 See, e.g, Ark. Code Ann. § 16-93-303 (2006); Colo. Rev. Stat. Ann. 

§ 19-2.5-1003 (West Supp. 2023); Del. Code Ann. tit. 16, § 4767 (Supp. 

2012); Ga. Code Ann. § 16-13-2 (2007); Haw. Rev. Stat. §§ 712-1255 and 

853-1 (2014); 720 Ill. Comp. Stat. Ann. §§ 550/10, 570/410, and 646/70 

(LexisNexis Cum. Supp. 2009); Mich. Comp. Laws Ann. §§ 750.350a and 

750.451c (West Cum. Supp. 2023); Minn. Stat. § 152.18 (2022); N.M. Stat. 

Ann. § 30-31-28 (Cum. Supp. 2008); N.C. Gen. Stat. § 14-50.29 (Supp. 

2008); N.D. Cent. Code 12.1-32-07.1 (Supp. 2017); 22 Okla. St. Ann. tit. 

22, §§ 991c (West Cum. Supp. 2024) and 996.3 (West 2021); S.C. Code 

Ann. § 44-53-450 (Cum. Supp. 2011); S.D. Codified Laws § 23A-27-53 

(Cum. Supp. 2023); Tenn. Code Ann. §§ 37-1-702 (2001) and 40-35-313 

(Supp. 2009); Tex. Code Crim. Proc. Ann. art. 45.051 (Cum. Supp. 2023); 

Va. Code Ann. §§ 18.2-57.3 and 18.2-251 (Supp. 2009) and 19.2-303.2 

(2008); Wash. Rev. Code Ann. §§ 3.50.320. and 3.66.067 (West 2017); W. 

Va. Code Ann. § 60A-4-407 (LexisNexis 2005); Wis. Stat. Ann. § 961.47 

(West 2023); Wyo. Stat. Ann. §§ 7-13-301 and 7-20-103 (2013).

116 See 18 U.S.C. § 3607 (2018).
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role of the prosecutor, and its executive function, is severely 

diminished upon a finding of guilt.

For example, in criminal prosecutions, the withdrawal of a 

rest by the prosecution in its case at trial is within the discretion of the trial court. 117 Similarly, before sentencing, it is a 

matter of the court’s discretion whether to sustain a motion 

of a defendant to withdraw a plea of guilt or no contest 

that has been accepted by the court. 118 The court’s discretion is not curtailed by an objection to the withdrawal by 

the prosecution. 119

[22,23] In addition, while the prosecutor may participate 

in the sentencing proceedings, the prosecutor may not control 

or decide what a guilty offender’s punishment shall be. 120 In 

Nebraska, a court is never bound by the plea agreement made 

between a defendant and the government. 121 The discretion 

to determine the appropriate sentence is vested in the judici

ary. 122 We have refused to hold otherwise specifically because 

it would constitute a transfer of a function of the court to 

the prosecutor. 123 In Nebraska, after a criminal defendant is 

117 See, State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015); State v. 

Putnam, 178 Neb. 445, 133 N.W.2d 605 (1965); Kurpgeweit v. State, 97 

Neb. 713, 151 N.W. 172 (1915); Clough v. The State, 7 Neb. 320 (1878).

118 See, State v. Boone, 314 Neb. 622, 992 N.W.2d 451 (2023); State v. 

Warner, 312 Neb. 116, 977 N.W.2d 904 (2022); State v. Miller, 202 Neb. 

443, 275 N.W.2d 614 (1979); Jurgenson v. State, 166 Neb. 111, 88 N.W.2d 

129 (1958).

119 See id.

120 See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998) (quoting State 

v. Dykes, 163 Ariz. 581, 789 P.2d 1082 (Ariz. App. 1990)), modified on 

denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999).

121 State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013). See State v. 

Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).

122 Id.

123 See State v. Griger, supra note 88.
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found guilty of an offense, it is then solely the role of the judiciary to sentence the defendant. 124

[24] The Nebraska Constitution expressly provides that it 

is a judicial function to “admit persons charged with felony to 

a plea of guilty and pass such sentence as may be prescribed 

by law.” 125 It follows that once a criminal defendant’s guilt 

is established, control over the disposition of the criminal 

proceeding falls exclusively within the judiciary. For almost 

60 years, deferred judgments existed in Nebraska under the 

1913 Probation Act as a matter of judicial sentencing. In 

enacting 2019 Neb. Laws, L.B. 686, the Legislature has once 

again declared the law and public policy of this state to allow 

judges to exercise their sentencing discretion to defer judgment and impose a conditional order of probation before 

determining the final disposition of a criminal case.

The State has not pointed us to, nor have we found, any 

express or implied provision in the Nebraska Constitution 

that suggests a deferred judgment creates any impairment to 

the executive’s function to faithfully execute the laws of this 

state. The deferred judgment statutes have no effect on a prosecutor’s power to determine what, if any, charges should be 

brought against a person accused of committing a crime.

Although the State did not raise the argument, our dissenting colleagues also take the position that the deferred 

judgment statutes somehow run afoul of the executive power 

found in Neb. Const. art. IV, § 13, which gives the Board of 

Pardons the “power to remit fines and forfeitures and to grant 

respites, reprieves, pardons, or commutations in all cases of 

conviction for offenses against the laws of the state, except 

treason and cases of impeachment.” But such a viewpoint runs 

against our precedent.

We have long held that the commutation power is not 

implicated unless a criminal sentence has been imposed and 

124 See Neb. Const. art. V, § 9. See, also, State v. Lee, supra note 90.

125Neb. Const. art. V, § 9.
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a judgment of conviction entered. 126 The exercise of this 

power is an act of grace, which nullifies a judgment of conviction and exempts or fully relieves the individual from the 

punishment the law has inflicted. 127 Simply, until a judgment of conviction has been entered, nothing exists for the 

executive to nullify. This interpretation predated, and was not 

affected by, the 1919-20 Nebraska Constitutional Convention, 

nor by the 1969 constitutional amendment.

Likewise, in State v. Spady,

 128 we held that the setting aside 

of a judgment of conviction under § 29-2264 is not a pardon 

or a “‘partial pardon.’” We reasoned that in setting aside a 

judgment of conviction, the court does not substitute a milder 

punishment for that which was imposed. We recognized that a 

judgment of conviction cannot be set aside unless the offender 

was previously placed on probation or sentenced to a fine and 

that a setting aside does not nullify all the legal consequences 

that were imposed upon the offender. As we succinctly stated, 

“[t]he party is not exempted from the punishment imposed 

for the crime.” 129

Although the executive branch is constitutionally able to 

relieve offenders from legal consequences, it does not follow 

that the executive branch has a constitutional interest in the 

imposition of legal consequences for those offenders chosen 

to be prosecuted. It is the Legislature that defines criminal 

conduct and fixes the boundaries of criminal punishment, 

which necessarily includes the nature of the penalty imposed. 

In enacting the deferred judgment statutes, the Legislature has 

provided offenders with the possibility to avoid civil penalties that the Legislature determined they should otherwise be 

subjected to.

126 See Campion v. Gillan, 79 Neb. 364, 112 N.W. 585 (1907).

127 See id. See, also, State v. Spady, supra note 41; State v. Philipps, supra

note 101.

128 See State v. Spady, supra note 41, 264 Neb. at 105, 645 N.W.2d at 543.

129 Id. at 104, 645 N.W.2d at 543.
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The Legislature has redefined the lower boundary of criminal punishment and left the determinations of whether a 

deferred judgment and, later, whether dismissal of the action 

is appropriate for an individual offender within the trial court’s 

discretion. An offender whose judgment is deferred and is 

placed on probation, who successfully completes the conditions of probation and whose action is ultimately dismissed, is 

not exempted from the punishment the law inflicts 130; rather, 

the individual has been subjected to all the punishment the law 

has required. In this way, as the deferred judgment statutes 

do not prevent or impair the executive branch from choosing 

which offenders to prosecute, it does not prevent or impair it 

from relieving the legal consequences of a crime when they are 

imposed upon those offenders.

The Legislature has defined deferred judgments as a possible corresponding punishment for a criminal violation. In 

doing so, it gave sentencing judges appropriate latitude to tailor individualized punishments to further the penal purpose of 

rehabilitation. Deferred judgments have been declared the law 

and a public policy of this state. Therefore, it is the responsibility and duty of the judicial branch to consider whether such 

a punishment is appropriate in each applicable case.

[25] Having found no constitutional inhibition against the 

kind, character, and purpose of § 29-2292, and having not 

had our attention directed to any such inhibitory provision or 

provisions, we conclude that the deferred judgment scheme 

enacted by the Legislature does not violate the separation 

of powers guaranteed in article II, § 1, of the Nebraska 

Constitution.

VI. CONCLUSION

The district court erroneously concluded that it did not have 

jurisdiction and failed to consider whether a deferred judgment was appropriate in Gnewuch’s case. Under § 29-2292, 

130 See State v. Spady, supra note 41. See Campion v. Gillan, supra note 126.
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Gnewuch was entitled to the court’s due consideration of his 

request for a deferred judgment. Hence, we reverse the district 

court’s judgment, vacate Gnewuch’s sentence, and remand the 

cause for the court to fulfill its duty to do so. In so doing, we 

make no statement as to whether a deferred judgment is appropriate in Gnewuch’s case.

Judgment reversed, sentence vacated, and 

cause remanded for further proceedings.

Cassel, J., dissenting in part, and in part concurring in the 

result.

I join the portion of Justice Papik’s dissenting opinion concluding that Neb. Rev. Stat. § 29-2292 (Cum. Supp. 2022) 

violates the Nebraska Constitution.

Unlike the situation in Thompson v. Heineman,

 1 there is no 

doubt here that this court has jurisdiction. However, like in 

Thompson, there is not a supermajority of this court’s members to declare the statute unconstitutional. 2 For that reason, 

I concur in the result reversing the district court’s judgment, 

vacating the sentence, and remanding the cause for further 

proceedings.

1 Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 (2015) (Heavican, 

C.J., and Stephan and Cassel, JJ., dissenting in part, and in part concurring 

in the result).

2 See Neb. Const. art. V, § 2.

Papik, J., dissenting in part.

A recently enacted Nebraska statute permits a judge to 

fully dismiss a filed criminal charge without a finding that 

the charge is legally or factually insufficient or that the prosecutor failed to comply with legal requirements. Because I 

believe it is a violation of the separation of powers clause of 

the Nebraska Constitution to give such power to the judicial 

branch, I would affirm the district court’s decision to deny the 

motion for a deferred judgment in this case.
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Certain fundamental principles do not appear to be in dispute in this case. Among those principles is the idea that under 

the separation of powers clause of the Nebraska Constitution, 

a statute may not delegate to one branch of government powers that the constitution delegates to another. See, e.g., State v. 

Philipps, 246 Neb. 610, 521 N.W.2d 913 (1994).

There also appears to be no dispute in this case that, at least 

generally speaking, the power to determine whether and what 

criminal charges should be brought against a person, and the 

power to dismiss those same charges once brought, is a prosecutorial power that rests with the executive branch. Indeed, 

one could hold otherwise only in the face of ample authority 

to the contrary. See, e.g., United States v. Valle, 697 F.2d 152, 

154 (6th Cir. 1983) (“[t]he decision to maintain a prosecution 

is exclusively within the discretion of the executive branch of 

government”); Newman v. United States, 382 F.2d 479, 480 

(D.C. Cir. 1967) (“[f]ew subjects are less adapted to judicial 

review than the exercise by the Executive of his discretion in 

deciding when and whether to institute criminal proceedings, 

or what precise charge shall be made, or whether to dismiss 

a proceeding once brought”); State v. Morton, 310 Neb. 355, 

367, 966 N.W.2d 57, 66-67 (2021) (“[p]rosecutorial discretion 

is an inherent executive power under which the prosecutor 

has the discretion to choose to charge any crime that probable 

cause will support or, if the prosecutor chooses, not to charge 

the accused at all”); People v. Dist. Ct., 186 Colo. 335, 339, 

527 P.2d 50, 52 (1974) (“[a] prosecutor’s discretion in charging, deferring or requesting dismissal is limited by pragmatic 

factors, but not by judicial intervention”). While the judicial 

branch obviously retains the power to dismiss charges as part 

of its adjudicative function, such as when charges are legally 

or factually insufficient or when there is an abuse of the prosecutorial function, it is the prosecution that can make the discretionary decision that charges should simply be dismissed. 

See Valle, 697 F.2d at 154 (“[t]he fundamental principle of 

separation of powers requires that the executive branch alone, 
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not the judiciary, wield the authority to dismiss prosecutions 

for reasons other than legal insufficiency or an abuse of the 

prosecutorial function”).

It is these fundamental principles—that the Legislature is 

constitutionally prohibited from giving executive powers to 

the judiciary and that the power to dismiss charges outside of 

the adjudicative process is an executive power—that lead me 

to conclude Neb. Rev. Stat. § 29-2292 (Cum. Supp. 2022) is 

unconstitutional. As everyone involved in this case appears to 

accept, § 29-2292 provides an avenue for a court to dismiss, 

over the prosecution’s objection, charges that are not legally 

or factually insufficient or the result of prosecutorial abuse. 

In fact, § 29-2292 goes even further, by allowing the court to 

dismiss charges that have been proved beyond a reasonable 

doubt. In my view, the statute thereby delegates to the judiciary powers belonging exclusively to the executive branch.

On this point, I find cogent and applicable the reasoning of the Kentucky Supreme Court in Flynt v. Com., 105 

S.W.3d 415 (Ky. 2003). Although there are some differences 

between § 29-2292 and the pretrial diversion statute at issue 

in Flynt, the court in Flynt determined that if the Kentucky 

pretrial diversion statute was interpreted to permit a defendant 

to participate in pretrial diversion without the consent of the 

prosecutor, it would allow a court to entirely dismiss charges 

over the prosecutor’s objection and would thus confer upon 

the court “discretionary authority that we have previously held 

to be within the exclusive province of the executive branch.” 

Id. at 426. I understand § 29-2292 to do the same: It delegates to the judiciary the power to dismiss charges outside 

of the court’s adjudicative function and over the objection of 

the prosecution.

The court’s controlling opinion offers a number of reasons 

why, despite the foregoing, § 29-2292 passes constitutional 

muster. The opinion mentions some prior use of some form 

of deferred sentencing in Nebraska and includes some discussion of deferred sentencing in a U.S. Supreme Court case, it 
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characterizes a judge’s decision to defer judgment and to later 

dismiss charges as sentencing decisions, and it observes that 

there is nothing in the Nebraska Constitution that “requires a 

judgment of conviction to be entered upon a finding of guilt 

as a protection of executive power and its charging function.” 

Respectfully, I am not persuaded by this analysis.

First, I do not believe much can be derived from the fact 

that Nebraska previously used some form of deferred sentencing. Although the 1913 Probation Act permitted courts to delay 

sentencing and place a defendant on probation, it is not clear 

that the same statute permitted courts to dismiss charges if 

that probation was successfully completed. And, even if courts 

could dismiss charges upon successful completion of probation under the 1913 Probation Act, the controlling opinion 

acknowledges there was no constitutional challenge to any 

such authority. I also glean little from the citation to Roberts 

v. United States, 320 U.S. 264, 64 S. Ct. 113, 88 L. Ed. 41 

(1943). That case held that a federal district court could not 

sentence a defendant to a definite term of imprisonment, suspend the sentence and impose probation, and then later revoke 

probation and increase the term of imprisonment. I do not 

understand it to speak to the issues in this case.

I am likewise not persuaded by the controlling opinion’s 

conclusion that when a court defers judgment or later dismisses 

charges entirely, it is merely making a sentencing decision. 

As recognized elsewhere in the same opinion, when a court 

defers judgment and places a defendant on probation under 

§ 29-2264, it is not imposing a sentence, but is instead deferring entry of a sentence. Neither, in my view, can a court’s 

ultimate dismissal of charges after successful completion of 

probation be fairly considered a sentencing decision: When a 

court dismisses charges, it imposes no sentence at all.

Finally, while the controlling opinion is correct that there 

is no specific provision in the Nebraska Constitution stating 

that a judgment of conviction must be entered upon a finding of guilt, I do not believe we can reduce our separation of 
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powers analysis to that question. The Nebraska Constitution 

does include an express separation of powers provision. And, 

for reasons I have explained, I believe a statute that gives 

the judicial branch the authority to dismiss charges for reasons other than factual or legal insufficiency or prosecutorial 

abuse violates that provision by delegating executive power to 

the judiciary.

A piece of legislative history cited by the controlling opinion suggests that, for at least some, § 29-2292 was seen as a 

means by which certain criminal offenders who successfully 

complete probation could avoid the stigma of a criminal conviction. That is an understandable policy goal, but, in my view, 

accomplished at the expense of the Nebraska Constitution. 

Under the Constitution, the executive branch has the power 

to decide not to pursue criminal charges or to dismiss charges 

already filed. Section 29-2292, however, allows a judge to 

unilaterally decide that, although a defendant’s guilt has been 

proved, the charge should be dismissed. Because I believe this 

violates the Nebraska Constitution, I dissent from the controlling opinion concluding otherwise. I recognize, however, that 

under Neb. Const. art. V, § 2, there are an insufficient number 

of judges to hold the statute unconstitutional and thus do not 

question the reversal and remand for further proceedings.

Funke and Freudenberg, JJ., join in this dissent.

Freudenberg, J., dissenting.

I fully join in Justice Papik’s dissent and write separately to 

highlight an additional basis of constitutional concern regarding the judicial branch’s trespass upon an implicitly created 

exclusive executive branch function.

The separation of powers clause found in Neb. Const. art. II, 

§ 1 provides:

The powers of the government of this state are divided 

into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons 

being one of these departments shall exercise any power 
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properly belonging to either of the others except as [otherwise] expressly directed or permitted . . . .

This language “prohibits one branch of government from 

encroaching on the duties and prerogatives of the others or 

from improperly delegating its own duties and prerogatives.” 1

It is the beam from which our system of checks and balances 

is suspended. 2

Article IV, § 13, of the Nebraska Constitution entrusts the 

clemency power exclusively in the executive branch of government. 3 Under article IV, § 13, “[t]he Governor, Attorney 

General and Secretary of State, sitting as a board, shall have 

power to remit fines and forfeitures and to grant respites, 

reprieves, pardons, or commutations in all cases of conviction

for offenses against the laws of the state, except treason and 

cases of impeachment.” (Emphasis supplied.)

We have said that a pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, 

which exempts the individual on whom it is bestowed from 

the punishment the law inflicts for a crime that individual has 

committed and affects only the public interest in the conviction. 4 We have held that finding a person guilty by a verdict 

of a jury is not a conviction within the meaning of article IV, 

§ 13, 5 even though it might be considered a conviction in a 

general sense in ordinary speech. 6 The executive branch can 

pardon only after conviction. 7 It cannot disrupt the orderly 

1 State ex rel. Spire v. Conway, 238 Neb. 766, 773, 472 N.W.2d 403, 408 

(1991).

2 Polikov v. Neth, 270 Neb. 29, 699 N.W.2d 802 (2005).

3 Otey v. State, 240 Neb. 813, 485 N.W.2d 153 (1992); Pleuler v. The State, 

11 Neb. 547, 10 N.W. 481 (1881).

4 Campion v. Gillan, 79 Neb. 364, 112 N.W. 585 (1907).

5 Id.

6 But see Vandyke v. State, 538 S.W.3d 561, 572 (Tex. Crim. App. 2017) 

(“‘after conviction’” means “after the entry of a guilty verdict”).

7 See Vandyke v. State, supra note 6.
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course of judicial proceedings. 8 Conversely, we have held 

that it violates separation of powers for the judiciary to grant 

clemency after a conviction or to reduce a sentence already 

imposed. 9 This understanding of when executive clemency 

begins, and when the power of the judiciary ends, envisions 

an orderly course of judicial proceedings that Neb. Rev. Stat. 

§ 29-2292 (Cum. Supp. 2022) intentionally circumvents.

Through § 29-2292, the Legislature has created a process 

of judicial clemency artificially structured to avoid overlap 

with the exclusive executive clemency power mandated by 

the Nebraska Constitution. Section 29-2292(1) allows courts 

to halt the ordinary process of a criminal case and, despite a 

“finding of guilt for which a judgment of conviction may be 

rendered,” never enter a judgment of conviction. Despite a 

finding of guilt for which a judgment of conviction may be 

rendered, it dismisses the action brought by the State.

At the same time, as the controlling opinion states, the 

“offender does not escape all criminal punishment.” The statutory scheme permits the trial court to deprive the defendant 

of liberty without ever entering a judgment of conviction. 

To sentence a defendant for a crime for which the defendant 

has not been convicted is a violation of due process that “no 

amount of . . . balancing can excuse.” 10 But the majority 

distinguishes between punishment and a sentence, and the 

defendant enjoying deferred sentencing does not complain. 

While we traditionally have said that probation is a sentence, 

the controlling opinion reasons that under Neb. Rev. Stat. 

§ 29-2246(4) (Cum. Supp. 2022), supervision ordered by 

a court pursuant to a deferred judgment is not a sentence. 

8 See id.

9 See, State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996); State v. 

Jones, 248 Neb. 117, 532 N.W.2d 293 (1995); State v. Philipps, 246 Neb. 

610, 521 N.W.2d 913 (1994).

10 Christopher Nalls, Bait and Switch: Criminal Sentencing From a Due 

Process Perspective, 27 T. Jefferson L. Rev. 159, 161 (2004).
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Deferred judgment under § 29-2292(1) merely “place[s]” the 

defendant on probation. Nevertheless, this placement of the 

defendant on probation is pursuant to inherent judicial powers 

of passing a sentence as may be prescribed by law.

I do not contest the majority’s reading of the statutory 

scheme but find it abhorrent to permit such a convoluted 

legislative workaround to the mandates of our Constitution. 

The Legislature has created a conviction without a conviction and a sentence without a sentence to give the judicial 

branch the power to pardon a person who has been charged 

with and found guilty of a crime. Indeed, as “a pardon implies 

guilt and does not obliterate the fact of the commission of 

the crime and the conviction,” 11 by allowing a court to erase 

its prior finding of guilt and dismiss the case before a conviction, Nebraska’s deferred judgment statutes grant greater 

clemency powers to the judiciary than what the Constitution 

exclusively confers to the executive branch. The statutory 

scheme of deferred judgments gives powers to the judiciary 

that our founders never intended the judiciary, or any branch 

of government, to have. It breaks the beam from which our 

system of checks and balances is suspended and should not 

be tolerated.

11 Vandyke v. State, supra note 6, 538 S.W.3d at 574.