State v. Gnewuch

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GNEWUCH
Cite as 316 Neb. 47
State of Nebraska, appellee, v.
Nathaniel L. Gnewuch, appellant.
___ N.W.3d ___
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 appel-
late court is obligated to review independent of the conclusion reached
by the court below.
2. Constitutional Law: Statutes. No legislative act shall be held unconsti-
tutional 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 meaning-
less 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 dis-
trict court retains jurisdiction and only a conditional order, not a
Nebraska Supreme Court Online Library
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Nebraska Supreme Court Advance Sheets
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STATE v. GNEWUCH
Cite as 316 Neb. 47
judgment and sentence, is entered; therefore, there is no “final judg-
ment” 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 depart-
ments are separate, none can overlook the authority of another depart-
ment, 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GNEWUCH
Cite as 316 Neb. 47
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 determi-
native 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 prosecu-
tor, and its executive function, is severely diminished upon a finding
of guilt.
22. Prosecuting Attorneys: Sentences. While the prosecutor may partici-
pate 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 estab-
lished, 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GNEWUCH
Cite as 316 Neb. 47
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 grandpar-
ents approximately 3 months before the incident. Before his
1 See Neb. Rev. Stat. § 28-905(3)(a)(iii) (Reissue 2016).

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STATE v. GNEWUCH
Cite as 316 Neb. 47
relocation, Gnewuch was being treated and medicated for
post-traumatic stress disorder with schizophrenic symptoms
resulting from his deployment in Afghanistan, where he suf-
fered 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 candi-
date for a deferred judgment.
The State did not “necessarily believe that [deferred judg-
ment 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 elabo-
rate further on its constitutional concerns. As to sentenc-
ing, 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 impos-
ing 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 quali-
fied candidate for probation and sentenced him to 18 months’
probation.
Gnewuch filed a timely appeal and notice of a constitu-
tional question and petitioned this court to bypass the Court

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GNEWUCH
Cite as 316 Neb. 47
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 sup-
plemental brief addressing the constitutional question and
provided Gnewuch with the opportunity to file a supple-
mental 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 indepen-
dent of the conclusion reached by the court below. 4 No legis-
lative act shall be held unconstitutional except by the concur-
rence 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GNEWUCH
Cite as 316 Neb. 47
1. Timeliness of Motion
In its initial brief on appeal, the State argues that the con-
stitutionality 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 con-
sider 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 con-
viction 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 sec-
tion 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GNEWUCH
Cite as 316 Neb. 47
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 impo-
sition 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 defer-
ring 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 applica-
tion of the defendant, for any of the [enumerated] grounds . .
. .” 14 The State’s interpretation seems to arise from our rec-
ognition 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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Nebraska Supreme Court Advance Sheets
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STATE v. GNEWUCH
Cite as 316 Neb. 47
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 tim-
ing 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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STATE v. GNEWUCH
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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 adjudica-
tion, 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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Nebraska Supreme Court Advance Sheets
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STATE v. GNEWUCH
Cite as 316 Neb. 47
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 regard-
ing 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 constitu-
tional question.
2. Constitutionality of Deferred
Judgment Statutes
[6,7] The principles guiding our review of the constitution-
ality 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 challeng-
ing 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 pro-
bation 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 con-
ditions as the court may require under section 29-2262.
(2) The court shall not defer judgment under this sec-
tion 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 judg-
ment 	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 proba-
tion, 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 with-
draw 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 commit-
ted 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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STATE v. GNEWUCH
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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 super-
vision. 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 informa-
tion 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 conclu-
sion. The State did not raise a constitutional jurisdictional argu-
ment 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 juris-
diction, 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 pro-
nounced, and any subsequent sentence fixing a different term
is a nullity. 38 This proposition is guided by three distinct prin-
ciples 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 sub-
stitute 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 jeop-
ardy 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.
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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 sen-
tence, the district court retains jurisdiction and only a condi-
tional 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 con-
viction 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 proba-
tionary 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 sentenc-
ing 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 cor-
rect 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 impermis-
sibly 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 proba-
tion may result in the dismissal of the action without entry
of judgment under § 29-2292(6); thus, the statute impermis-
sibly 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 con-
stitutional 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 pos-
sibly 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 sen-
tencing decision.
Thus, to resolve this appeal, we consider whether a sentenc-
ing 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 pre-
sented 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 provi-
sion “which provide[d] that a district court may not assign a
defendant to [a veterans court] program without the prosecu-
tor’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 fur-
ther 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 dis-
cretion 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 deci-
sion 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, allow-
ing 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 comple-
tion 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 analo-
gous 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 par-
ties’ 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 pre-
scribe the permanent framework of our system of govern-
ment, 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 prop-
erly 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 main-
tain the independence of “the three branches” of the govern-
ment. 76 It is the beam from which our system of checks and
balances is suspended. 77 “This arrangement gives each depart-
ment 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 depart-
ments are separate, none can overlook the authority of another
department, for all three departments are mutually depen-
dent, 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 wield-
ing it, hedged in [on] all sides by important limitations, some
of which are imposed in express terms, and others by implica-
tions 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 cor-
rect 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 sen-
tence 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 discre-
tion, and the boundaries of that discretion are a matter for
the Legislature. 89 The imposition of punishment is a nondel-
egable 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 abil-
ity 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 prosecu-
tion 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 plac-
ing a convicted defendant on probation, the successful comple-
tion 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 consti-
tutional challenge. While longstanding practices of govern-
ment 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 sen-
tence’s execution. 99
[T]he basic purpose of probation [is] namely to provide
an individualized program offering a young or unhard-
ened offender an opportunity to rehabilitate himself
[or herself] without institutional confinement under the
tutelage of a probation official and under the continu-
ing power of the court to impose institutional punish-
ment 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 impris-
onment in advance of probation or to defer the imposi-
tion 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.
100 Roberts 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 sub-
jects 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 fur-
ther 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 rehabil-
itative 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 clem-
ency 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 judg-
ment 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 dis-
abilities 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 execu-
tive 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 discre-
tion 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 discre-
tion 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 judi-
ciary 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 judg-
ment 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 pros-
ecutor’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 dis-
senting 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.
125 Neb. 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 con-
viction and exempts or fully relieves the individual from the
punishment the law has inflicted. 127 Simply, until a judg-
ment 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 penal-
ties 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 crim-
inal 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 condi-
tions 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 pos-
sible corresponding punishment for a criminal violation. In
doing so, it gave sentencing judges appropriate latitude to tai-
lor 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 responsi-
bility 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 judg-
ment 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 appro-
priate 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 con-
cluding 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 mem-
bers 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 pros-
ecutor 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
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Certain fundamental principles do not appear to be in dis-
pute 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 pow-
ers 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 pros-
ecutorial 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 charg-
ing, 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 pros-
ecutorial function, it is the prosecution that can make the dis-
cretionary 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 judi-
ciary powers belonging exclusively to the executive branch.
On this point, I find cogent and applicable the reason-
ing 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 del-
egates 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 discus-
sion 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 sentenc-
ing. 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 proba-
tion 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, sus-
pend 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 defer-
ring 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 find-
ing 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 rea-
sons 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 opin-
ion 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 con-
viction. 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 control-
ling 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 regard-
ing 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, execu-
tive, 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 [oth-
erwise] 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 gov-
ernment. 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, proceed-
ing 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 convic-
tion. 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 statu-
tory 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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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE v. GNEWUCH
Cite as 316 Neb. 47
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 convic-
tion 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 con-
viction, 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.