State v. Kennedy

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/23/2018 08:12 AM CDT

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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

State of Nebraska, appellant, v.
Chad T. K ennedy, appellee.
___ N.W.2d ___

Filed March 16, 2018. No. S-17-703.

 1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
 2. Sentences: Appeal and Error. Whether an appellate court is reviewing
a sentence for its leniency or its excessiveness, a sentence imposed by
a district court that is within the statutorily prescribed limits will not
be disturbed on appeal unless there appears to be an abuse of the trial
court’s discretion.
 3. Statutes. It is a general principle of statutory construction that to the
extent there is a conflict between two statutes, the specific statute con-
trols over the general statute.
 4. Statutes: Intent: Appeal and Error. When interpreting a statute, effect
must be given, if possible, to all the several parts of a statute; no sen-
tence, clause, or word should be rejected as meaningless or superflu-
ous if it can be avoided. An appellate court must look to the statute’s
purpose and give to the statute a reasonable construction which best
achieves that purpose, rather than a construction which would defeat it.
 5. Probation and Parole. Neb. Rev. Stat. § 29-2268(2) (Reissue 2016)
does not authorize a probationer to be “unsatisfactorily” discharged
or terminated from post-release supervision early as the result of
a violation.
 6. Courts: Probation and Parole. Once a district court finds a viola-
tion of post-release supervision, it is authorized by Neb. Rev. Stat.
§ 29-2268 (Reissue 2016) to take one of two paths: It can either revoke
post-release supervision and impose a term of imprisonment up to the
remaining period of post-release supervision under subsection (2), or it
can find that revocation is not appropriate and order one or more of the
dispositions authorized by subsection (3).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

 7. Sentences. Pursuant to Neb. Rev. Stat. § 29-2323(1) (Reissue 2016), if
an appellate court determines a sentence is excessively lenient, it may
set aside the sentence and either (a) remand the case for imposition of a
greater sentence, (b) remand the case for further sentencing proceedings,
or (c) impose a greater sentence.
 8. Due Process: Sentences: Probation and Parole. The same hearing pro-
cedures and due process protections that apply when a court considers
a motion to revoke probation apply when a court considers a motion to
revoke post-release supervision.

Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Vacated and remanded for further
proceedings.
Lee Polikov, Sarpy County Attorney, and Nicole R. Hutter
for appellant.
Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Stacy, J.
After finding Chad T. Kennedy had violated his post-release
supervision, the district court terminated it “unsatisfactorily.”
The State appeals, claiming this resulted in an excessively
lenient sentence that was not authorized by law. We vacate
the district court’s order and remand the cause for further pro-
ceedings consistent with this opinion.
FACTS
Kennedy was charged in the Sarpy County District Court
with one count of operating a motor vehicle to avoid arrest
(Class IV felony)1 and one count of willful reckless driving
(Class III misdemeanor). On February 9, 2017, he pled guilty
to an amended information charging him with only the felony
offense. Kennedy requested immediate sentencing and waived

 1
Neb. Rev. Stat. § 28-905(3)(a)(iii) (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

his right to a presentence investigation. He asked not to be
placed on probation. The court imposed a sentence of 240
days in jail and 9 months of post-release supervision. He was
given credit for 150 days already served, and it appears he was
released from jail the same day he was sentenced.2
In April 2017, the State filed what it captioned a “Motion for
Revocation of Probation.” It is clear from the record the intent
was to seek revocation of Kennedy’s post-release supervision.
The motion to revoke stated that Kennedy was “in violation
of his probation order dated February 9, 2017” in that he had
“failed to show for his scheduled probation appoint[ment]s and
has failed to provide probation with a valid address or con-
tact information.”
At the hearing on the motion to revoke, Kennedy admitted
he had violated the conditions of his post-release supervision
and explained he had done so because he was incarcerated
in Douglas County on an unrelated matter. He told the court
he had been in custody in Douglas County for 40 days and
expected to be released “in another 32” and given 6 months’
probation in a “rehab and halfway house.” The court accepted
Kennedy’s admission and found he had violated the terms and
conditions of his post-release supervision.
The court then asked counsel how they wished to pro-
ceed. Defense counsel advised “the cleanest thing would just
be to terminate him unsuccessfully from supervision” and
“they’ll take that into consideration in sentencing in Douglas
County.” The State disagreed. It argued the court lacked statu-
tory authority to unsuccessfully terminate post-release supervi-
sion and suggested instead that “a sentencing order consist­
ent with his [remaining] post release supervision term would
be appropriate.”
The court stated:
I’m going to note for the record a couple things:
. . . Kennedy is under the jurisdiction and custody of

 2
See Neb. Rev. Stat. §§ 47-502 and 47-503 (Reissue 2010).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

the fourth judicial district at this point in time and pend-
ing charges there. Certainly we did the transport order
to get him here. And the point and purpose of post
release supervision is to provide guidance and/or track
for defendants to be able to follow that is being currently
set up with Douglas County. And as a result of that he
can’t comply with our post release supervision because
he’s in custody in Douglas County. So, based upon the
admission, the court is going to find . . . Kennedy has
violated the terms and conditions of his post release
supervision.
The court is going to terminate probation [as being]
unsatisfactory. And that will be the judgment and order
[of] the court. [Kennedy is] remanded to the custody of
the sheriff.
The court’s minute entry specifically noted that the court was
not “revok[ing]” Kennedy’s probation. The following day, on
June 20, 2017, the court entered what it styled a “Judgment and
Sentence” that provided in relevant part:
[Kennedy] was personally advised of his conviction
for the crime of Count 1: Operating a motor vehicle to
avoid arrest, felony offense, a class IV felony, pursuant
to his plea of guilty and judgment of conviction entered
on February 9, 2017, and [Kennedy’s] admission to the
Motion to Revoke Probation entered on June 19, 2017
and offered no good or sufficient reason why a sentence
should not be imposed for such crime. The Court termi-
nated the Post Release Supervision.
IT IS THEREFORE ORDERED that the Post Release
Supervision is hereby terminated as unsatisfactorily.
The Sarpy County Attorney, with the consent of the Attorney
General (State), timely appealed, alleging the sentence imposed
was excessively lenient.3 We moved the case to our docket on
our own motion and set it for oral argument.

 3
See Neb. Rev. Stat. §§ 29-2320 and 29-2321 (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

ASSIGNMENTS OF ERROR
The State assigns, restated, that the district court (1) abused
its discretion in imposing an excessively lenient sentence not
authorized by Neb. Rev. Stat. § 29-2268 (Reissue 2016) and
(2) committed plain error by imposing a sentence outside the
statutory limits.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination.4
[2] Whether an appellate court is reviewing a sentence for
its leniency or its excessiveness, a sentence imposed by a dis-
trict court that is within the statutorily prescribed limits will
not be disturbed on appeal unless there appears to be an abuse
of the trial court’s discretion.5
ANALYSIS
Post-release supervision is a relatively new concept in
Nebraska sentencing law.6 Last year, in State v. Phillips,7 this
court had its first opportunity to address the procedure for
imposing a term of post-release supervision under § 29-2204.02.
The issues presented in the instant appeal provide our first
opportunity to address the procedure when moving to revoke
such a term.
As a threshold matter, we observe that the Legislature
has defined “[p]robationer” to mean “a person sentenced
to probation or post-release supervision.”8 Similarly, it has

 4
State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015); State v. Draper,
289 Neb. 777, 857 N.W.2d 334 (2015).
 5
State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008).
 6
See Neb. Rev. Stat. §§ 28-105 (Supp. 2017) and 29-2204.02 (Reissue
2016).
 7
State v. Phillips, 297 Neb. 469, 900 N.W.2d 522 (2017).
 8
Neb. Rev. Stat. § 29-2246(5) (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

defined “[p]robation” to “include[] post-release supervision.”9
“Post-release supervision” is defined to mean “the portion
of a split sentence following a period of incarceration under
which a person found guilty of a crime upon verdict or
plea is released by a court subject to conditions imposed
by the court and subject to supervision by the [Office of
Probation Administration].”10 The Legislature has instructed
that these statutory definitions apply for purposes of the
Nebraska Probation Administration Act11 “unless the context
otherwise requires.”12
As such, the Nebraska Probation Administration Act
sometimes refers to probation and post-release supervision
interchangeably,13 and other times, separately.14 This may
explain why, in the present case, the State filed a motion
to revoke “probation” even though Kennedy had been sen-
tenced to a term of incarceration followed by a term of post-
release supervision. The trial court used the same vernacular
in its June 20, 2017, sentencing order. Particularly because the
available disposition differs slightly based on whether a pro-
bationer is alleged to have violated the terms of his or her pro-
bation or post-release supervision,15 we encourage courts, and
officers of the courts, to be precise when taking up motions
to revoke.

§ 29-2268
Violations of probation and post-release supervision are
governed by § 29-2268, which provides:

 9
§ 29-2246(4).
10
§ 29-2246(13).
11
Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016).
12
§ 29-2246.
13
See, e.g., §§ 29-2250, 29-2251, 29-2258, 29-2262, and 29-2267.
14
See, e.g., §§ 29-2263(2) and (3) and 29-2268(1) and (2).
15
See § 29-2268(1) and (2).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

(1) If the court finds that the probationer, other than a
probationer serving a term of post-release supervision, did
violate a condition of his or her probation, it may revoke
the probation and impose on the offender such new sen-
tence as might have been imposed originally for the crime
of which he or she was convicted.
(2) If the court finds that a probationer serving a term
of post-release supervision did violate a condition of his
or her post-release supervision, it may revoke the post-
release supervision and impose on the offender a term of
imprisonment up to the remaining period of post-release
supervision. The term shall be served in an institution
under the jurisdiction of the Department of Correctional
Services or in county jail subject to subsection (2) of sec-
tion 28-105.
(3) If the court finds that the probationer did violate a
condition of his or her probation, but is of the opinion that
revocation is not appropriate, the court may order that:
(a) The probationer receive a reprimand and warning;
(b) Probation supervision and reporting be intensified;
(c) The probationer be required to conform to one
or more additional conditions of probation which may
be imposed in accordance with the Nebraska Probation
Administration Act;
(d) A custodial sanction be imposed on a probationer
convicted of a felony, subject to the provisions of section
29-2266.03; and
(e) The probationer’s term of probation be extended,
subject to the provisions of section 29-2263.
Section 29-2268(1) is not applicable to Kennedy because it
expressly excludes those on post-release supervision from the
definition of probationer. Thus, the question presented here
is whether the district court had authority, pursuant to either
§ 29-2268(2) or (3), to terminate post-release supervision
“unsatisfactorily” after finding a violation.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

The State argues that upon finding a violation of post-
release supervision, the district court had only two options
under § 29-2268: It could either revoke post-release supervi-
sion pursuant to § 29-2268(2) and impose a term of incarcera-
tion up to the remainder of the post-release supervision term
or it could find that revocation is not appropriate and enter an
order pursuant to § 29-2268(3)(a) through (e).
Kennedy argues the district court had a third option: It could
discharge him from post-release supervision altogether under
§ 29-2263. We address this argument first, and find it has
no merit.
§ 29-2263 Does Not Authorize
Unsatisfactory Discharge
Section 29-2263 addresses both probation16 and post-release
supervision,17 and provides in pertinent part:
When a court has sentenced an offender to post-release
supervision, the court shall specify the term of such
post-release supervision as provided in section 28-105.
The court, on application of a probation officer or of the
probationer or on its own motion, may discharge a proba-
tioner at any time.18
Kennedy argues the second sentence of § 29-2263(2) gave
the district court authority to enter an order terminating his
post-release supervision “unsatisfactorily” once it found a vio-
lation.19 He urges us to interpret § 29-2263(2) to apply in
circumstances where a violation of post-release supervision
has been found and asks that we equate “discharge” under
§ 29-2263(2) with being “terminated unsatisfactorily.”20 We
decline to do either.

16
§ 29-2263(1) and (3) through (5).
17
§ 29-2263(2) through (5).
18
§ 29-2263(2).
19
Brief for appellee at 6.
20
Id.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

[3] Section 29-2263 generally governs a court’s power to
impose, modify, and discharge a person from probation and
post-release supervision. In contrast, § 29-2268 specifically
governs violations of probation and post-release supervision
and thus is the more specific statute. It is a general principle
of statutory construction that to the extent there is a conflict
between two statutes, the specific statute controls over the
general statute.21
More importantly, the early discharge permitted by
§ 29-2263(2) is incompatible with “unsatisfactory” termina-
tion. Section 29-2263(4) explains that “[u]pon completion of
the term of probation, or the earlier discharge of the proba-
tioner, the probationer shall be relieved of any obligations
imposed by the order of the court and shall have satisfied the
sentence for his or her crime.”
[4] When interpreting a statute, effect must be given, if pos-
sible, to all the several parts of a statute; no sentence, clause,
or word should be rejected as meaningless or superfluous if it
can be avoided.22 An appellate court must look to the statute’s
purpose and give to the statute a reasonable construction which
best achieves that purpose, rather than a construction which
would defeat it.23
[5] Because an early discharge under § 29-2263(2) results
in satisfying the sentence imposed, it cannot be reconciled
with “unsatisfactorily” completing the sentence. We thus
hold that once the State invoked the revocation process
under § 29-2268 and the district court found a violation
of post-release supervision, the court was not empowered,

21
See State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
22
See, Keller v. Tavarone, 265 Neb. 236, 655 N.W.2d 899 (2003); Omaha
Pub. Power Dist. v. Nebraska Dept. of Revenue, 248 Neb. 518, 537
N.W.2d 312 (1995).
23
See, In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010);
TracFone Wireless v. Nebraska Pub. Serv. Comm., 279 Neb. 426, 778
N.W.2d 452 (2010).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

at that point, to invoke the early discharge provisions of
§ 29-2263(2).24
Only Dispositions for Violations
of Post-R elease Supervision
A re Those Enumerated in
§ 29-2268(2) and (3)
[6] We agree with the State that once the district court
found a violation of post-release supervision, it was autho-
rized by § 29-2268 to take one of two paths: It could either
revoke post-release supervision and impose a term of impris-
onment up to the remaining period of post-release supervision
under subsection (2), or it could find that revocation was not
appropriate and order one or more of the dispositions autho-
rized by subsection (3). Stated differently, once a violation of
post-release supervision is found, a district court may proceed
under either subsection (2) or subsection (3) of § 29-2268, but
the statutory language does not authorize any disposition not
therein enumerated.
Before considering whether the district court was proceeding
under subsection (2) or subsection (3) of § 29-2268, we pause
to address a jurisdictional question raised by Kennedy.
Jurisdiction Over This Appeal
Kennedy, relying on State v. Caniglia,25 argues this court
lacks jurisdiction over the instant appeal, because no sentence
was imposed that the State may challenge as excessively
lenient. We disagree.
In Caniglia, the defendant was convicted in Sarpy County
District Court of driving under the influence in August 2003.
At the time, she was on intensive supervision probation in
Douglas County for another conviction of driving under the

24
Accord State v. Caniglia, 272 Neb. 662, 668, 724 N.W.2d 316, 320 (2006)
(in probation revocation proceeding, § 29-2268 does not authorize district
court to order probation “terminated as unsuccessful”).
25
Caniglia, supra note 24.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

influence. The Sarpy County court sentenced her to proba-
tion, to be served concurrently with the Douglas County pro-
bation. Both probation orders required that she refrain from
using alcohol.
In December 2004, the State moved to revoke the Sarpy
County probation, alleging the defendant was using alcohol,
which the defendant admitted. At the hearing on the motion to
revoke, the evidence showed the defendant already had been
terminated from her Douglas County probation for using alco-
hol. The revocation in Douglas County resulted in her serving
15 days in jail and having her driver’s license revoked for
15 years. After noting what had occurred in Douglas County,
the Sarpy County court found a probation violation, and
then, without ruling on the motion to revoke, terminated the
defend­ant’s probation as “‘unsuccessful.’”26
The State appealed the district court’s order pursuant to a
statute authorizing the State to appeal “the sentence imposed”
if it reasonably believes the sentence is excessively lenient.27
We held the district court had not imposed a sentence at all,
thus, this statute did not authorize the State’s appeal. In doing
so, we analyzed the version of § 29-2268 in effect at the time
(which is substantially similar to the current version, minus
the specific inclusion of post-release supervision). We noted
that pursuant to the terms of the statute, once the district court
found a violation of probation it
was authorized to revoke probation and impose a sen-
tence, to reprimand and warn the probationer, to intensify
supervision, to impose additional terms of probation, or
to extend the term of probation. The district court did
none of the above. Instead, the district court ordered the
probation “terminated as unsuccessful.” This was neither
an authorized order nor a sentence.28

26
Id. at 665, 724 N.W.2d at 318.
27
See § 29-2320.
28
Caniglia, supra note 24, 272 Neb. at 667-68, 724 N.W.2d at 320.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

Based on this rationale, we found there was no appel-
late jurisdiction, because no “sentence” had been imposed
that could be challenged as excessively lenient pursuant to
§ 29-2320.
Here, the State also seeks to challenge the sentence as
excessively lenient and relies on the same statute at issue
in Caniglia, which requires a challenge from “the sentence
imposed.”29 But unlike in Caniglia, the district court here ruled
on the motion to revoke by determining revocation was not
appropriate, and then proceeded to enter a sentencing order
which purported to modify the sentence of post-release super-
vision by terminating it unsatisfactorily. As such, the jurisdic-
tional concerns present in Caniglia are not present here. We
conclude that the district court’s order of June 20, 2017, is
a sentencing order from which the prosecuting attorney may
appeal under § 29-2320. We proceed to consider the merits
of the State’s contention that the sentencing order was exces-
sively lenient.
Court Was Not Proceeding
Under § 29-2268(2)
In the present case, after finding Kennedy had violated his
post-release supervision, the district court made clear it was
not revoking that supervision as authorized by § 29-2268(2).
However, Kennedy suggests the court’s sentencing order
should be construed to have had the practical effect of revok-
ing probation and imposing a term of “zero months” of
imprisonment.30
We rejected a similar argument in Caniglia. In that case,
we refused to infer a term of imprisonment when one was not
expressly stated, reasoning that when imposing a sentence, a
court must state with care the precise terms of the sentence
and that imposition of a sentence in a revocation of probation

29
See § 29-2320.
30
Brief for appellee at 9.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. KENNEDY
Cite as 299 Neb. 362

context is deserving of the same clarity expected when the
initial sentence is imposed.31
We apply the same reasoning here and conclude the district
court’s order cannot reasonably be interpreted to have revoked
probation and imposed a term of “zero months” of imprison-
ment, when the court expressly held it was not revoking super-
vision and expressed no precise term of sentence. The district
court was not proceeding under § 29-2268(2) when it opted not
to revoke Kennedy’s post-release supervision, but, rather, to
terminate it unsatisfactorily.
Court Attempted to Proceed Under
§ 29-2268(3), But Erred
Subsection (3) of § 29-2268 allows a court, after finding a
violation of probation or post-release supervision, to decide
that revocation is not appropriate, and instead order:
(a) The probationer receive a reprimand and warning;
(b) Probation supervision and reporting be intensified;
(c) The probationer be required to conform to one
or more additional conditions of probation which may
be imposed in accordance with the Nebraska Probation
Administration Act;
(d) A custodial sanction be imposed on a probationer
convicted of a felony, subject to the provisions of section
29-2266.03; and
(e) The probationer’s term of probation be extended,
subject to the provisions of section 29-2263.
Here, after finding a violation, the court made clear it was
not revoking Kennedy’s post-release supervision. We find that
portion of the district court’s decision was authorized by
§ 29-2268(3). But having elected not to revoke post-release
supervision, the court was limited to the dispositions enu-
merated in § 29-2268(3). Because the sentencing order did
not impose any disposition authorized by subsection (3), that

31
Caniglia, supra note 24.
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Nebraska Supreme Court A dvance Sheets
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STATE v. KENNEDY
Cite as 299 Neb. 362

portion of the court’s order was erroneous and resulted in an
excessively lenient sentence.

Vacate With Directions
[7] For all of these reasons, the portion of the sentencing
order which purported to terminate unsatisfactorily Kennedy’s
post-release supervision as a result of a violation was not
authorized by statute, was erroneous, and resulted in an
excessively lenient sentence.32 Pursuant to Neb. Rev. Stat.
§ 29-2323(1) (Reissue 2016), if an appellate court determines
a sentence is excessively lenient, it may set aside the sentence
and either (a) remand the case for imposition of a greater sen-
tence, (b) remand the case for further sentencing proceedings,
or (c) impose a greater sentence. We conclude it is appropri-
ate to remand the cause for further sentencing proceedings
consistent with the applicable statutes33 and Kennedy’s due
process rights.34
[8] For the sake of completeness, we remind the parties and
the court that the Legislature has established the procedure to
be followed when a motion to revoke probation is filed,35 and
this court has identified the minimum due process protections
required at probation revocation hearings.36 We now expressly
hold these same hearing procedures and due process protec-
tions apply when the court is considering a motion to revoke
a term of post-release supervision. On remand, these proce-
dures should be followed.

32
See, State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997); State v.
Bensing, 249 Neb. 900, 547 N.W.2d 464 (1996); State v. Campbell, 247
Neb. 517, 527 N.W.2d 868 (1995).
33
§§ 29-2267 and 29-2268.
34
See, e.g., State v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014); State v.
Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011).
35
See § 29-2267(1) and (2).
36
See, e.g., Johnson, supra note 34; Shambley, supra note 34.
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Nebraska Supreme Court A dvance Sheets
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STATE v. KENNEDY
Cite as 299 Neb. 362

CONCLUSION
Once the district court found a violation of post-release
supervision and decided it was not appropriate to revoke
supervision, it was authorized by § 29-2268(3) to either (a)
order a reprimand or warning, (b) intensify supervision or
reporting, (c) impose additional conditions of probation, (d)
impose custodial sanctions, or (e) extend the term of proba-
tion. Because it did none of these and instead erroneously
terminated post-release supervision altogether, we vacate the
sentencing order of June 20, 2017, as excessively lenient, and
remand the cause for further proceedings not inconsistent with
this opinion.
Vacated and remanded for
further proceedings.
K elch, J., not participating in the decision.
Wright, J., not participating.