NE Code § 29-110 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-110 - Prosecutions; complaint, indictment, or information; filing; time limitations; exceptions.

29-110.  Prosecutions; complaint, indictment, or information; filing; time limitations; exceptions.(1) Except as otherwise provided by law, no person shall be prosecuted for any felony unless the indictment is found by a grand jury within three years next after the offense has been done or committed or unless a complaint for the same is filed before the magistrate within three years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.(2) Except as otherwise provided by law, no person shall be prosecuted, tried, or punished for any misdemeanor or other indictable offense below the grade of felony or for any fine or forfeiture under any penal statute unless the suit, information, or indictment for such offense is instituted or found within one year and six months from the time of committing the offense or incurring the fine or forfeiture or within one year for any offense the punishment of which is restricted by a fine not exceeding one hundred dollars and to imprisonment not exceeding three months.(3) Except as otherwise provided by law, no person shall be prosecuted for kidnapping under section 28-313, false imprisonment under section 28-314 or 28-315, child abuse under section 28-707, pandering under section 28-802, debauching a minor under section 28-805, or an offense under section 28-813 when the victim is under sixteen years of age at the time of the offense (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's sixteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's sixteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.(4) Except as otherwise provided by law, no person shall be prosecuted for a violation of subsection (2) or (3) of section 28-831 (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.(5) Except as otherwise provided by law, no person shall be prosecuted for an offense under section 28-813.01 or 28-1463.05 (a) unless the indictment for such offense is found by a grand jury within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within seven years next after the offense has been committed or within seven years next after the victim's eighteenth birthday, whichever is later, and a warrant for the arrest of the defendant has been issued.(6) No person shall be prosecuted for a violation of the Securities Act of Nebraska under section 8-1117 unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.(7) No person shall be prosecuted for criminal impersonation under section 28-638, identity theft under section 28-639, or identity fraud under section 28-640 unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.(8) No person shall be prosecuted for a violation of section 68-1017 if the aggregate value of all funds and other benefits obtained or attempted to be obtained is five hundred dollars or more unless the indictment for such offense is found by a grand jury within five years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within five years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.(9) No person shall be prosecuted for knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult under section 28-386 unless the indictment for such offense is found by a grand jury within six years next after the offense has been done or committed or unless a complaint for such offense is filed before the magistrate within six years next after the offense has been done or committed and a warrant for the arrest of the defendant has been issued.(10) Except as otherwise provided by law, no person shall be prosecuted for an offense under section 28-717 (a) unless the indictment for such offense is found by a grand jury within one year and six months next after the offense has been committed or within one year and six months next after the child reaches the age of majority, whichever is later, or (b) unless a complaint for such offense is filed before the magistrate within one year and six months next after the offense has been committed or within one year and six months next after the child reaches the age of majority, whichever is later, and a warrant for the arrest of the defendant has been issued.(11) There shall not be any time limitations for prosecution or punishment for treason, murder, arson, forgery, sexual assault in the first or second degree under section 28-319 or 28-320, sexual assault of a child in the second or third degree under section 28-320.01, incest under section 28-703, sexual assault of a child in the first degree under section 28-319.01, labor trafficking of a minor or sex trafficking of a minor under subsection (1) of section 28-831, or an offense under section 28-1463.03; nor shall there be any time limitations for prosecution or punishment for sexual assault in the third degree under section 28-320 when the victim is under sixteen years of age at the time of the offense.(12) The time limitations prescribed in this section shall include all inchoate offenses pursuant to the Nebraska Criminal Code and compounding a felony pursuant to section 28-301.(13) The time limitations prescribed in this section shall not extend to any person fleeing from justice.(14) When any suit, information, or indictment for any crime or misdemeanor is limited by any statute to be brought or exhibited within any other time than is limited by this section, then the suit, information, or indictment shall be brought or exhibited within the time limited by such statute.(15) If any suit, information, or indictment is quashed or the proceedings set aside or reversed on writ of error, the time during the pendency of such suit, information, or indictment so quashed, set aside, or reversed shall not be reckoned within this statute so as to bar any new suit, information, or indictment for the same offense.(16) The changes made to this section by Laws 2004, LB 943, shall apply to offenses committed prior to April 16, 2004, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.(17) The changes made to this section by Laws 2005, LB 713, shall apply to offenses committed prior to September 4, 2005, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.(18) The changes made to this section by Laws 2009, LB 97, and Laws 2006, LB 1199, shall apply to offenses committed prior to May 21, 2009, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.(19) The changes made to this section by Laws 2010, LB809, shall apply to offenses committed prior to July 15, 2010, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.(20) The changes made to this section by Laws 2016, LB934, shall apply to offenses committed prior to April 19, 2016, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.(21) The changes made to this section by Laws 2019, LB519, shall apply to offenses committed prior to September 1, 2019, for which the statute of limitations has not expired as of such date and to offenses committed on or after such date.Source   G.S.1873, c. 58, § 256, p. 783;   R.S.1913, § 8910;   C.S.1922, § 9931;   C.S.1929, § 29-110;   R.S.1943, § 29-110;   Laws 1965, c. 147, § 1, p. 489;   Laws 1989, LB 211, § 1;   Laws 1990, LB 1246, § 10;   Laws 1993, LB 216, § 10;  Laws 2004, LB 943, § 8;  Laws 2005, LB 713, § 2;  Laws 2006, LB 1199, § 10;  Laws 2009, LB97, § 21;  Laws 2009, LB155, § 17;  Laws 2010, LB809, § 1;  Laws 2016, LB934, § 10;  Laws 2019, LB519, § 13;  Laws 2020, LB881, § 13.  Cross References   Nebraska Criminal Code, see section 28-101.  Securities Act of Nebraska, see section 8-1123. Annotations  1. Limitation of action 2. Fleeing from justice 1. Limitation of action A complaint charging the defendant with second-offense driving under the influence was "pending" for statute of limitations purposes during the time period in which the State appealed to the district court and to the Supreme Court the county court's order granting the defendant's motion to quash. State v. Loyd, 275 Neb. 205, 745 N.W.2d 338 (2008). In order for the tolling provision under subsection (1) of this section to apply, a subsequent indictment, information, or suit must charge the "same offense" as the prior indictment, information, or suit. State v. Loyd, 275 Neb. 205, 745 N.W.2d 338 (2008). This section is inapplicable to evidence of prior bad acts. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). Pursuant to subsection (1) of this section, postconviction proceedings fall within the ambit of the phrase "proceedings . . . on writ of error". State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997). Pursuant to subsection (1) of this section, the words "proceedings . . . set aside . . . on writ of error" mean proceedings set aside on appeal. State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997). Chapter 29 applies only to criminal procedure, and therefore, the statute of limitations in this section has no application to civil cases. LaBenz Trucking v. Snyder, 246 Neb. 468, 519 N.W.2d 259 (1994). Five-year period of limitations became effective August 25, 1989; act became effective 3 months after Legislature adjourned in absence of emergency clause. State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994). The 3-year statute of limitations generally applicable to felony prosecutions does not apply to the crime of first degree murder. State v. White, 239 Neb. 554, 477 N.W.2d 24 (1991). When in a prosecution for murder the statute of limitations bars a conviction for manslaughter, the defendant is not entitled to an instruction for manslaughter as a lesser-included offense of murder unless he or she elects to waive the defense of the statute of limitations. State v. Keithley, 236 Neb. 631, 463 N.W.2d 329 (1990). Statute does not apply to cases involving termination of parental rights, as they are not criminal in nature. In re Interest of Hollenbeck, 212 Neb. 253, 322 N.W.2d 635 (1982). The provision for issuance of an arrest warrant, in this section, is not a condition precedent to a prosecution. State v. Eynon, 197 Neb. 734, 250 N.W.2d 658 (1977). The filing of a felony complaint before a magistrate charging embezzlement and the issuance of an arrest warrant within three years after date of offense tolls the statute of limitations. State v. Donoho, 190 Neb. 593, 210 N.W.2d 851 (1973). A charge of failing to pay an installment of child support which accrued more than three years earlier was subject to defense of statute of limitations. State v. Journey, 186 Neb. 556, 184 N.W.2d 616 (1971). Criminal prosecution for violation of statute based on illegal interest of city officer in contract with city must be brought within time prescribed in this section. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959). Prosecution for violation of Blue Sky Law was barred by statute of limitations. Jacox v. State, 154 Neb. 416, 48 N.W.2d 390 (1951). Three-year period of limitations does not apply to prosecutions for murder. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946). With exception of certain crimes, prosecution is barred unless brought within time limited by this section, and pendency of prosecution in another county does not toll statute. State ex rel. Johnson v. Goble, 136 Neb. 242, 285 N.W. 569 (1939). Statute does not bar action for criminal contempt though criminal prosecution for the same act would be barred. State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937). An information charging forgery in language of statute charges a crime that is not barred by the three-year statute of limitations. Flannigan v. State, 127 Neb. 640, 256 N.W. 321 (1934). Information charging embezzlement continuously over a period commencing over three years previously was good as to part of period within three years of filing information, but conviction reversed because both information and verdict failed to show amount embezzled within statute of limitations. Hogoboom v. State, 120 Neb. 525, 234 N.W. 422, 79 A.L.R. 1171 (1931). Indictment must be found, or information filed, within time fixed. Gragg v. State, 112 Neb. 732, 201 N.W. 338 (1924); Boughn v. State, 44 Neb. 889, 62 N.W. 1094 (1895). Prosecution for rape must be commenced in three years, and assault and battery in one year. Kramer v. Weigand, 91 Neb. 47, 135 N.W. 230 (1912). Forgery falls within exception in section. State v. Leekins, 81 Neb. 280, 115 N.W. 1080 (1908). Prosecution for selling intoxicating liquors must be brought within eighteen months. McArthur v. State, 60 Neb. 390, 83 N.W. 196 (1900). Arrest and preliminary examination arrest running of statute only if magistrate had jurisdiction. State v. Robertson, 55 Neb. 41, 75 N.W. 37 (1898). Crime of murder is regarded as committed at time fatal blow was struck though death results on subsequent date. Debney v. State, 45 Neb. 856, 64 N.W. 446 (1895). Acts of first degree sexual assault committed on or before August 24, 1986, were time barred on August 25, 1989, the effective date of the 1989 amendment to this section and, therefore, were not subject to the extended statute of limitations implemented by the amendment. State v. Wiemer, 3 Neb. App. 821, 533 N.W.2d 122 (1995). While the Legislature has the power to enact retroactive changes in a statute of limitations, it cannot remove a bar or limitation which has already become complete. State v. Hirsch, 1 Neb. App. 1120, 510 N.W.2d 534 (1993). In habeas corpus proceeding where claim was made that court lacked jurisdiction because prosecution was barred by statute of limitations, adjudication in original prosecution that petitioner tolled statute by fleeing from justice is binding upon petitioner and federal court. Taylor v. O'Grady, 113 F.2d 798 (8th Cir. 1940). 2. Fleeing from justice The phrase "fleeing from justice" means to leave one's usual abode or to leave the jurisdiction where an offense has been committed, with intent to avoid detection, prosecution, or punishment for some public offense. State v. Thomas, 236 Neb. 84, 459 N.W.2d 204 (1990). Fleeing from justice contemplates that the accused has departed from his usual place of residence to a place where he cannot be found in the exercise of reasonable diligence by the officers. Emery v. State, 138 Neb. 776, 295 N.W. 417 (1940). Fleeing from justice means a departure by a person from his usual place of abode, or from the place where he has committed an offense, with intent to avoid detection and prosecution for such public offense. Taylor v. State, 138 Neb. 156, 292 N.W. 233 (1940); Colling v. State, 116 Neb. 308, 217 N.W. 87 (1927).