dissenting.
I respectfully dissent from the majority’s decision, which reversed Manzer’s convictions for second degree murder and use of a firearm to commit a felony because the information upon which Manzer was convicted and sentenced did not allege malice as a specific element of the crime of second degree murder.
Manzer was originally charged by information with first degree murder, first degree assault, and two counts of use of a firearm to commit a felony. At a May 27, 1993, hearing, the district court was advised of a plea agreement. Manzer’s counsel informed the court that Manzer would plead guilty to second degree murder, first degree assault, and one count of use of a deadly weapon. The court asked both Manzer and the prosecution whether this was their understanding of the plea agreement, and they answered in the affirmative. Thereafter, an amended information was filed with the court, and Manzer waived his right to the service of the amended information and his right to the reading of the amended information.
According to the court’s journal entry of the proceedings, Manzer was advised of the nature of the charges and the possible penalties, including an explanation of concurrent and consecutive sentences. He was informed that he was presumed innocent until proven guilty, and his constitutional rights were *540explained to him. Manzer acknowledged that he understood the nature of the charges, the possible penalties, and his constitutional rights. He also informed the court that he had had sufficient time to consult with his attorneys before proceeding.
Manzer advised the court that he wished to enter pleas of guilty and that no force, threats of force, or inducements of any kind, other than the plea agreement, were made to cause him to plead guilty. The court was then given a factual basis for the taking of the pleas. Manzer stated that he was satisfied with the representation provided by his attorneys and that he understood he was waiving his rights by pleading guilty to the offenses in the amended information.
The court accepted Manzer’s pleas of guilty, finding them to be freely, voluntarily, and intelligently made with full knowledge of the nature of the charges, the possible penalties, and his constitutional rights. Manzer was adjudged guilty of the offenses of second degree murder, first degree assault, and use of a firearm to commit a felony, as alleged in the State’s amended information.
From my review of the record, I find no reason to reverse the convictions for second degree murder and use of a firearm to commit a felony. The amended information charged that
Christopher J. Manzer, late of the county aforesaid, did, on or about the 15th day of November, A.D. 1992, in the County of Pierce, and State of Nebraska aforesaid, intentionally, but without premeditation, kill Mark Manzer; and
COUNT II - did then and there intentionally or knowingly cause serious bodily injury to Joy Manzer; and
COUNT III - did then and there use a firearm or other deadly weapon to commit a felony which may be prosecuted in the court of this State, to wit: shotgun used in shooting Mark Manzer.
The majority has found that the amended information was insufficient because it did not include malice as an element of second degree murder.
In State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), the court held that malice is an essential element of second degree *541murder and that it was plain error for the trial court to omit the element of malice from the jury instructions defining second degree murder. Subsequently, in State v. Grimes, ante p. 473, 519 N.W.2d 507 (1994), and in the case at bar, the majority has held that an information which fails to include malice as an element of second degree murder is plain error requiring reversal of a defendant’s conviction for second degree murder. I dissented in State v. Grimes, and for the reasons set forth in that dissent, I again disagree with the holding that malice is an essential element of second degree murder. I also disagree with the majority’s opinion that failure to include malice in an information charging second degree murder is plain error.
Basic to procedural due process is that the party charged be notified of the charge and given a reasonable opportunity to be heard and to present any defense to the charge. See State ex rel. Labedz v. Beermann, 229 Neb. 657, 428 N.W.2d 608 (1988). The underlying issue presented in this case is whether Manzer was reasonably notified of the crime for which he was charged so that he had a reasonable opportunity to present a defense to the charge. Manzer’s guilty plea to the charge of second degree murder was the result of an agreement in which the offense of first degree murder was reduced to second degree murder and one count of use of a firearm to commit a felony was dismissed. Manzer’s sole assignment of error on appeal was that the sentences he received in connection with his guilty pleas were excessive.
Manzer acknowledged that he understood the nature of the charges, the possible penalties, and his constitutional rights. He informed the court that he had had sufficient time to consult with his attorneys before proceeding, and he advised the court that he wished to enter pleas of guilty. The court was given the factual basis that Manzer shot his father three times with a shotgun — the last time at pointblank range. Mistaking his sister for his mother, Manzer shot and wounded his sister. The court then accepted Manzer’s pleas of guilty and found them to be freely, voluntarily, and intelligently made with full knowledge of the nature of the charges and the possible penalties. For these reasons, I believe the amended information, set forth in the language of the second degree murder statute, complied with *542procedural due process.
In my opinion, Manzer was given reasonable notice and an opportunity to be heard and to present any defense to the charges set forth in the amended information. There is no doubt in my mind that Manzer knew the crime for which he was charged. I would, therefore, affirm the convictions and sentences of Manzer in all respects.