dissenting.
In State v. Holmes, 221 Neb. 629, 379 N.W.2d 765 (1986), this court held that restitution (the retaining of drug-buy money) pursuant to Neb. Rev. Stat. § 28-427 (Reissue 1985) was in the nature of a civil or administrative penalty, not a criminal penalty imposed as punishment for the crime.
In State v. Heaton, 225 Neb. 702, 407 N.W.2d 780 (1987), where restitution was ordered under the probation statute, Neb. Rev. Stat. § 29-2262 (Reissue 1985), this court held that the trial court could not impose a jail sentence for a failure to pay restitution absent an evidentiary hearing clearly and convincingly showing the failure to pay was willful.
In State v. Duran, 224 Neb. 774, 401 N.W.2d 482 (1987), a restitution order under Neb. Rev. Stat. § 29-2280 (Cum. Supp. *6831988), a statute allowing restitution to be ordered which is not part of the probation order, was held to impose a criminal penalty rather than a civil penalty.
The court seems to be putting form ahead of substance. All restitution ordered in a criminal case should be declared to be a civil penalty. Furthermore, trial judges should not be required to parrot various restitution holdings before accepting a plea of guilty.
I respectfully dissent from the majority holding.