Saturday, January 26, 2008

Nebraska Supreme Court rejects defendant's double jeopardy argument against using his prior felony convictions to find him guilty as both a felon possessing a firearm and as an habitual offender. State v. Ramirez, S-06-920, 274 Neb. 873. Defendant was convicted by the district court in 2004 with use of a firearm to commit a felony, being a felon in possession of a firearm, and terroristic threats. The court also found Defendant was an habitual criminal. Defendant was acquitted by a jury of a count of possession of methamphetamine. Defendant was sentenced, collectively, to terms of imprisonment totaling not less than 25 nor more than 50 years. His trial counsel also served as counsel on direct appeal, and the only issue raised in his brief was whether his sentences were excessive. The Nebraska Court of Appeals summarily affirmed. Defendant loses his ineffective counsel action because his double jeopardy argument would fail. The fact that the predicates for §§ 28-1206 (felon in possession of a firearm) and 29-2221 (habitual offender) are defined in different terms suggests that the same conviction can be used for both status and enhancement if that conviction meets the independent requirements of each statute. it is apparent, from Nebraska’s statutory scheme, that the Legislature intended for habitual criminals to be sentenced pursuant to § 29-2221, even when convicted of violating § 28-1206. The statutes define their necessary predicate elements using different standards. Therefore the trial court did not violate the defendant's Fifth Amendment right against Double Jeopardy.

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