Nebraska Supreme Court upholds Internet enticement law and rejects defendant's challenge to Section § 28-320.02 RRS Neb. on equal protection, free speech, over breadth and vagueness grounds. State v. Rung, S-08-878, 278 Neb. 855 "Defendant appeals his conviction for use of a computer to entice a child or a peace officer believed to be a child for sexual purposes, a violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2008). Defendant challenges the constitutionality of § 28-320.02 and asserts that his sentence is excessive. We reject Defendant’s constitutional challenges, and we affirm his conviction and sentence. Defendant asserts no suspect classification and because the statute does not jeopardize a fundamental right, the classification in § 28-320.02 is subject to a rational basis review for equal protection purposes. When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.§ 28-320.02, is geared toward enticement of minors to engage in sexual conduct that would violate specified statutes, and as such, § 28-320.02 does not jeopardize the fundamental right recognized in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Defendant argued that § 28-320.02 is over broad because it targets speech regarding acts that would not otherwise be illegal. This argument, similar to his other arguments, is based on his misreading of the statute. Defendant lacks standing to challenge § 28-320.02 for vagueness

Petition for further review to the Nebraska Supreme Court sustained in No. S-08-959: State v. Simnick, 17 Neb. App. 766 (2009). Petition of appellant for further review sustained on September 16, 2009 {the finding that Defendant committed an aggravated offense for the purpose of lifetime community supervision should have been submitted to a jury, but the error was harmless }.

Nebraska Supreme Court allows sentencing court to correct mistaken calculation of time served after sentencing. State v. Clark, S-08-735, 278 Neb. 557 The Lancaster County District Court judge gave an defendant more credit for time served than he actually served and the court attempted to correct the sentence for Class I misdemeanor sexual assault by noting the appropriate amount of credit. On May 19, 2008, the district court attempted to sentence defendant to 360 days in jail but incorrectly credited Defendant with 361 days’ time served. On June 12, the court entered a written sentencing order granting Defendant credit for 61 days’ time served, the amount of time actually served and reflected by the record. Defendant appealed, and the Nebraska Court of Appeals affirmed. We granted Defendant’s petition for further review. For different reasons, we affirm. A sentencing court must under Neb. Rev. Stat. § 47-503 (Reissue 2004), separately determine, state, and grant credit for time served, and must the court must set form those times as a part of the sentence, State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999). The judge was without discretion to award Defendant more credit for time served than he actually served. Accordingly the district court had authority to correct the erroneous portion of its sentencing pronouncement by giving Defendant the accurate amount of credit for time served as reflected by the record.

Eighth Circuit Court of Appeals affirms conviction for child pornography; defendant's claim that governments search of his computer that was hooked up peer to peer with other computers through Lime Wire program was not an illegal warrantless search. 083183P.pdf 08/14/2009 United States v. Harold Stults U.S. Court of Appeals Case No: 08-3183 District of Nebraska - Omaha [PUBLISHED] [Smith, Author, with Riley and Colloton, Circuit Judges] Criminal case - criminal law and sentencing. Users of peer-to-peer file sharing software like LimeWire do not have a reasonable expectation of privacy in files they make available to others using the software, and the warrantless search of defendant's computer through LimeWire did not violate his Fourth Amendment rights; affidavit the police used to obtain a warrant to search defendant's home and seize his computer established probable cause to believe child pornography would be found; defendant's prior conviction for attempted sexual assault on a child was sufficient to invoke the ten-year mandatory minimum sentence under 18 U.S.C. Sec. 2252(b)(2); under this court's precedents, the district court did not err in applying the five-level enhancement under Guidelines Sec. 2G2.2(b)(3)(B) as the government produced sufficient circumstantial evidence to meet its burden of proving defendant expected to receive child pornography when he used LimeWire; sentence was not unreasonable; special conditions of supervised release which controlled defendant's contact with children, access to pornography and use of the Internet and cameras were related to his offense and were reasonable measures to protect the public.

Eighth Circuit Court of Appeals affirms without comment Nebraska convict's civil rights complaint against requiring him to register as a sex offender for pandering a minor. 081629U.pdf 08/21/2009 Richard Hansen v. John Doe U.S. Court of Appeals Case No: 08-1629 District of Nebraska - Lincoln [UNPUBLISHED] [Per Curiam - Before Loken, Chief Judge, and Hansen and Colloton, Circuit Judges] Civil case - civil rights. Order dismissing suit claiming issuance of a citation for violation of SORNA's (Neb. Rev. Stat. §§ 29-4001-14.) reporting requirements violated plaintiff's civil rights affirmed without comment.

Defendant convicted of sex crime who was not in custody, probation or parole could not challenge requirement he register as a sex offender through post-conviction proceedings. State v. York, S-08-884, 278 Neb. 306 Defendant claims that this requirement renders him "in custody under sentence" such that he should be permitted to seek relief under the Nebraska Postconviction Act. See § 29-3001. We conclude that an individual who is subject to the registration requirements under the SORA (Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2008)) is not "in custody under sentence" for purposes of the Nebraska Postconviction Act. See § 29-3001.

Nebraska Supreme Court holds double jeopardy does not require reversal and dismissal of criminal charges when the defendant's counsel provides some of the evidence offered and received at trial that provided the court with evidence to avoid a directed verdict. State v. McCulloch, S-06-275, 274 Neb. 636. In a follow up to the Nebraska Court of Appeals' Mrs. Robinson case, the Nebraska Supreme Court rules that the Court of Appeals should not have reversed the defendant's conviction for sexual assault of a child younger than 13 when the defendant was older than 19 when the defendant's counsel provided some of the evidence that helped prove. State v. McCulloch, 15 N eb. A pp. 381, 727 N .W.2d 717 (2007) (McCulloch I) rehearing granted, opinion vacated and replaced with State v. McCulloch, 15 N eb. A pp. 616, 733 N.W.2d 586 (2007) (McCulloch II). The appeals court should not have ruled on direct appeal that defense counsel was ineffective for offering the crucial evidence that defendant was older than 19 at the time of the sexual assaults. Further Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. E d. 2d 265 (1988), does not confine the reviewing court's double jeopardy analysis to whether evidence the court receives solely from the State's offer was sufficient to avoid a directed verdict. "The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict...To the extent cases such as State v. Anderson, 258 Neb. 627, 605 N .W.2d 124 (2000) may be read as limiting Double Jeopardy consideration to only evidence offered by the State, they are disapproved.