29-2268 Probation; violation; court; determination. - Nebraska Statutes

29-2268. Probation; violation; court; determination.(1) If the court finds that the probationer did violate a condition of his probation, it may revoke the probation and impose on the offender such new sentence as might have been imposed originally for the crime of which he was convicted.(2) If the court finds that the probationer did violate a condition of his probation, but is of the opinion that revocation of probation is not appropriate, the court may order that:(a) The probationer receive a reprimand and warning;(b) Probation supervision and reporting be intensified;(c) The probationer be required to conform to one or more additional conditions of probation which may be imposed in accordance with the provisions of sections 29-2246 to 29-2268; and(d) The probationer's term of probation be extended, subject to the provisions of section 29-2263. SourceLaws 1971, LB 680, § 23.AnnotationsThis section permits a court, upon determining that a probationer has violated a condition of probation, to revoke the probation and impose on the offender such new sentence as might have been imposed originally for the crime of which he was convicted; violation of a single condition of probation is sufficient. State v. Finnegan, 232 Neb. 75, 439 N.W.2d 496 (1989).Where the defendant violates a condition of his probation, the court may extend the terms of the probation, provided that the total length of probation does not exceed two years for a first offense misdemeanor or five years for a second offense misdemeanor or felony. State v. Ladehoff, 229 Neb. 111, 425 N.W.2d 352 (1988).In order to revoke probation for nonpayment of restitution, the evidence must clearly and convincingly show that the probationer has willfully refused to make restitution when he or she has the resources to pay or has failed to make sufficient bona fide efforts to find employment and otherwise legally acquire the resources to pay restitution. State v. Heaton, 225 Neb. 702, 407 N.W.2d 780 (1987).The violation of probation is not itself a crime, but merely a mechanism which may trigger the revocation of a previously granted probation. Once a court determines that a condition of probation has been violated and that the probation should be revoked, this section provides that the court is to impose a new sentence for the crime of which the defendant was originally convicted. State v. Painter, 223 Neb. 808, 394 N.W.2d 292 (1986).Upon revocation of probation, the court may impose such punishment as may have been imposed originally for the crime of which such defendant was convicted. Defendant who was convicted of third offense driving while intoxicated in 1980 and who violated his probation in 1984 was subject to sentencing under the penal statute in effect at the time of his conviction. State v. Jacobson, 221 Neb. 639, 379 N.W.2d 772 (1986).The court, under the language of this section, was free to require the defendant, after the revocation of probation, to serve the thirty days of jail time mandated by section 28-106 without regard to the forty-eight hours he had already served. State v. Schulz, 221 Neb. 473, 378 N.W.2d 165 (1985).If the court finds that the probationer violated a condition of his probation, it may revoke the probation and impose such new sentence as might have been imposed originally for the crime of which he was convicted. State v. Osterman, 197 Neb. 727, 250 N.W.2d 654 (1977); State v. Williams, 194 Neb. 483, 233 N.W.2d 772 (1975).Violation of a single condition of probation established by clear and convincing evidence can support revocation. State v. Clark, 197 Neb. 42, 246 N.W.2d 657 (1976).An amendment to a probation order which was not made in conformance with subsection (2)(c) of this section is void. State v. Pawling, 9 Neb. App. 824, 621 N.W.2d 821 (2000).