28-1206 Possession of a deadly weapon by a prohibited person; penalty. - Nebraska Statutes

28-1206. Possessionof a deadly weapon by a prohibited person; penalty.(1)(a)Any person who possesses a firearm, a knife, or brass or iron knuckles andwho has previously been convicted of a felony, who is a fugitive from justice,or who is the subject of a current and validly issued domestic violence protectionorder and is knowingly violating such order, or (b) any person who possesses a firearm or brass or iron knuckles and whohas been convicted within the past seven years of a misdemeanor crime of domesticviolence, commits the offense of possession of a deadly weapon by a prohibitedperson.(2) The felony conviction may have been had in any courtin the United States, the several states, territories, or possessions, orthe District of Columbia.(3)(a) Possession of a deadly weapon which is not a firearmby a prohibited person is a Class III felony.(b) Possession of a deadly weapon which is a firearm by aprohibited person is a Class ID felony for a first offense and a Class IBfelony for a second or subsequent offense.(4)(a)(i) For purposes of this section, misdemeanor crimeof domestic violence means:(A)(I) A crime that is classified as a misdemeanor underthe laws of the United States or the District of Columbia or the laws of anystate, territory, possession, or tribe;(II) A crime that has, as an element, the use or attempteduse of physical force or the threatened use of a deadly weapon; and(III) A crime that is committed by another against his orher spouse, his or her former spouse, a person with whom he or she has a childin common whether or not they have been married or lived together at any time,or a person with whom he or she is or was involved in a dating relationshipas defined in section 28-323; or(B)(I) Assault in the third degree under section 28-310,stalking under subsection (1) of section 28-311.04, false imprisonment inthe second degree under section 28-315, or first offense domestic assaultin the third degree under subsection (1) of section 28-323 or any attemptor conspiracy to commit one of these offenses; and(II) The crime is committed by another against his or herspouse, his or her former spouse, a person with whom he or she has a childin common whether or not they have been married or lived together at any time,or a person with whom he or she is or was involved in a dating relationshipas defined in section 28-323.(ii) A person shall not be considered to have been convictedof a misdemeanor crime of domestic violence unless:(A) The person was represented by counsel in the case orknowingly and intelligently waived the right to counsel in the case; and(B) In the case of a prosecution for a misdemeanor crimeof domestic violence for which a person was entitled to a jury trial in thejurisdiction in which the case was tried, either:(I) The case was tried to a jury; or(II) The person knowingly and intelligently waived the rightto have the case tried to a jury.(b) For purposes of this section, subject of a current andvalidly issued domestic violence protection order pertains to a current courtorder that was validly issued pursuant to section 28-311.09 or 42-924 or thatmeets or exceeds the criteria set forth in section 28-311.10 regarding protectionorders issued by a court in any other state or a territory, possession, or tribe. SourceLaws 1977, LB 38, § 238; Laws 1978, LB 748, § 19; Laws 1995, LB 371, § 9; Laws 2009, LB63, § 15; Laws 2010, LB771, § 10.Effective Date: July 15, 2010Annotations1. Felon in possession2. Miscellaneous1. Felon in possessionUse of a prior conviction to establish status as a felon and then enhance a sentence does not constitute impermissible double enhancement. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).Possession of a knife by a convicted felon is not unlawful under the plain language of this section. State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).Nebraska law explicitly and unequivocally prohibits a felon from being in possession of a firearm. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).This section punishes the specific conduct of possession of a firearm by a person previously convicted of a felony, not the underlying felony. State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001).In order to use a prior conviction as proof that a defendant has been convicted of a felony for purposes of the felon in possession statute, the State must establish that at the time of the prior conviction, the defendant had or waived counsel. State v. Portsche, 258 Neb. 926, 606 N.W.2d 794 (2000).The release of a convicted felon from probation and the restoration of his or her civil rights does not nullify the conviction under the terms of subsection (1) of this section. State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991).Pursuant to subsection (1) of this section, a convicted felon may not possess a firearm for purposes of self-defense. State v. Harrington, 236 Neb. 500, 461 N.W.2d 752 (1990).Possession of a firearm by a felon on two separate days, absent any evidence of an interruption in that possession, is a single continuing offense where the statute does not specify any means for dividing an uninterrupted possession into separate offenses, and the former instance of possession is included in the offense for the latter. State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).To have "previously been convicted of a felony", as the phrase is used in subsection (1) of this section, a defendant need not have commenced serving his or her sentence for the previous conviction. State v. Moore, 3 Neb. App. 417, 527 N.W.2d 223 (1995).2. MiscellaneousProsecution for both unlawful discharge of a firearm under section 28-1212.02 and possession of a deadly weapon by a felon under this section does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).A pistol is a firearm. State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992).This section is held not to be invalid as in conflict with Neb. Const. art. I, section 1. State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).Evidence which was seized during a search based solely on an illegal wiretap must be suppressed and a conviction based on that evidence reversed, where it was agreed that the defendant had waived his rights under the fourth amendment to the U.S. Constitution, but had not waived his rights under section 86-701 et seq. (recodified in 2002 as section 86-271 et seq.). State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981).Pursuant to subsection (1) of this section, the doctrine of constructive possession applies to the possession of a firearm by a felon or a fugitive from justice, and the fact of possession may be proved by circumstantial evidence. State v. Long, 8 Neb. App. 353, 594 N.W.2d 310 (1999).