State v. Buescher

485 N.W.2d 192, 240 Neb. 908, 1992 Neb. LEXIS 196

• Court: Nebraska Supreme Court
• Decided: June 12, 1992
• Docket: S-91-285
• Status: Published

Opinions

Per Curiam.

Defendant-appellant, Dale W. Buescher, was charged in the county court with violating various ordinances of the city of Lincoln by operating a motor vehicle while under the influence of alcoholic liquor, by operating a motor vehicle under a suspended license, by driving an improperly registered motor vehicle, and by resisting arrest. Following a bench trial, the trial court dismissed the driving while under the influence and improper registration charges and found Buescher guilty of driving a motor vehicle under a suspended license and of resisting arrest. He was then fined $150 and had his operator’s license suspended for a year on the driving conviction, and he was fined $100 and ordered to spend 14 days in jail on the resisting arrest conviction. The district court affirmed, whereupon the appeal to this court ensued. Buescher asserts that the district court erred in failing to find that the county court erred in (1) denying him a jury trial, (2) finding the evidence sufficient to support the charges, and (3) imposing excessive sentences. We affirm.

No useful purpose would be served by detailing the circumstances leading to Buescher’s arrest and convictions, for the ordinances under which he was charged are not in the record. We recently, in State v. King, 239 Neb. 853, 479 N.W.2d 125 (1992), reaffirmed that an analysis of assignments of error claiming that the evidence is insufficient to support a conviction under a municipal ordinance and that the sentence is excessive requires an examination of the specific ordinance involved. It is well established that an appellate court will not take judicial notice of an ordinance not in the record but assumes that a valid ordinance creating the offense charged exists, that the evidence sustains the findings of the trial court, and that the sentence is within the limits set by the ordinance. State v. King, supra. See, also, State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980); State v. Korf, 201 Neb. 64, 266 N.W.2d 86 (1978); State v. Sator, 194 Neb. 120, 230 N.W.2d 224 (1975); Foley v. State, 42 Neb. 233, 60 N.W. 574 (1894).

Without benefit of the ordinances in question, neither can we determine whether the trial court should have granted a jury trial. As noted in Hawkins Constr. Co. v. Director, ante p. 1, 480 N.W.2d 183 (1992), courts are in no better position to declare the rights of the parties under an ordinance not in the record than they would be to declare the rights of parties to a contract not in the record.

What ought to be more than abundantly clear by this time is that a party charged under a municipal ordinance who seriously contemplates an appeal in the event of an adverse result needs to see to it that the trial record properly contains a copy of the ordinance under which the proceedings are conducted. In the absence of such a record, an appeal only wastes time and money — in this instance, as this appeal was taken in forma pauperis, the public’s time and money.

Affirmed.