State v. Nelson

759 N.W.2d 260, 276 Neb. 997
CourtNebraska Supreme Court
DecidedJanuary 2, 2009
DocketS-08-203
StatusPublished
Cited by36 cases

This text of 759 N.W.2d 260 (State v. Nelson) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nelson, 759 N.W.2d 260, 276 Neb. 997 (Neb. 2009).

Opinion

759 N.W.2d 260 (2009)
276 Neb. 997

STATE of Nebraska, appellee,
v.
Ricky D. NELSON, appellant.

No. S-08-203.

Supreme Court of Nebraska.

January 2, 2009.

*262 Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant.

*263 Jon Bruning, Attorney General, and George R. Love for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Ricky D. Nelson's motor vehicle operator's license was revoked in 1992 for a period of 15 years, after Nelson was convicted of third-offense driving under the influence (DUI). Nearly 15 years later, Nelson was pulled over for speeding. He was convicted and sentenced for driving during his 15-year license revocation period.

Nelson alleges that his license revocation had expired by the time of the violation. Specifically, Nelson argues that he should have been given credit for the period he was not allowed to drive while on bail awaiting sentencing for the 1992 DUI, because the 15-year revocation period actually began to run during that time. Nelson also argues that although he was sentenced to 3 months' imprisonment in 1992 and a license revocation period does not run concurrently with a jail sentence, his jail sentence should not be excluded from his revocation period in this case because there is no evidence of how much time he actually spent in jail.

BACKGROUND

On March 6, 1992, Nelson was arrested for driving under the influence. This was his third-offense DUI. The statute under which Nelson was charged in 1992 provided that a person who had two or more prior convictions was guilty of a Class W misdemeanor and that "as part of the judgment of conviction," the court "shall"

order such person not to drive any motor vehicle in the State of Nebraska for any purpose for a period of fifteen years from the date ordered by the court and shall order that the operator's license of such person be revoked for a like period. Such revocation shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. Such revocation shall not run concurrently with any jail term imposed.[1]

On May 29, 1992, Nelson pled guilty to the charges.

Sentencing was postponed due to Nelson's request that a presentence investigation be prepared. Pending sentencing, the court ordered Nelson released on a $2,500 bond. The court also ordered that Nelson turn his license over to the probation office and that he not drive a motor vehicle for any reason during the period he was on bail.

The record contains a journal entry dated September 4, 1992, reflecting that the court sentenced Nelson to 3 months' imprisonment, a $500 fine, and a 15-year license revocation. The jail term was originally typed as "____ days," but this was crossed out and handwritten over as "3 months," and Nelson admits he was sentenced to 3 months in jail. The court did not specifically set forth a date from which Nelson's revocation period would begin to run.

The record is unclear, however, as to how much of the jail sentence was actually served. An official abstract of record by *264 the Nebraska Department of Motor Vehicles (DMV) printed in June 2007 appears to show that Nelson served 3 days' jail time for his third-offense DUI. The record also contains a certified "Order of Suspension" by the DMV sent to Nelson on September 15, 1992, stating that his license was revoked for a period of 15 years to begin on September 6, 1992-3 days after Nelson was sentenced—and to end on September 6, 2007.

Almost 15 years after the 1992 sentence for third-offense DUI, on June 18, 2007, Nelson was stopped for speeding. He was driving his employer's vehicle and did not have a license. Nelson had not, at that point, applied for reinstatement of his revoked license. When the officer ran Nelson's name, he was informed that Nelson's license had been suspended and that Nelson was not eligible for reinstatement until September 6, 2007.

Nelson was charged with operating a motor vehicle during a period of revocation, in violation of Neb.Rev.Stat. § 60-6,197.06 (Cum. Supp. 2006). That section deals specifically with revocations pursuant to DUI offenses and states in relevant part that any person operating a vehicle on the highways or streets of this state while his or her operator's license has been revoked, pursuant to third-offense DUI, shall be guilty of a Class IV felony. A Class IV felony carries a maximum of 5 years' imprisonment, a $10,000 fine, or both, and has no minimum sentence.[2] It further provides that "the court shall, as part of the judgment of conviction, revoke the operator's license of such person for a period of fifteen years."[3]

In a bench trial on a stipulated record, Nelson argued that because of the period during which his license had been suspended while he was on bail in 1992, the 15-year suspension period had ended by the time he was pulled over in 2007. While he admitted he was driving without a license, he argued that he should be subject only to a misdemeanor offense of driving after a period of revocation but before issuance of a new license.[4] The district court rejected this argument and found Nelson guilty under § 60-6,197.03.

Nelson's counsel argued for leniency at the sentencing hearing, asking for probation instead of incarceration. In particular, counsel argued that another 15-year suspension would be unduly harsh, and counsel asserted that under § 60-6,197.06, Nelson would not be subject to another mandatory 15-year license suspension if he were only sentenced with probation instead of jail time. The Nebraska Probation System presentence investigation report (PSI) prepared for Nelson's sentencing for violating § 60-6,197.03, reveals three DUI convictions that occurred in 1987, 1990, and 1992. In addition, the PSI shows one conviction for possession of drug paraphernalia in 1985, a conviction of possession of controlled substance in 1989, possession of marijuana in 1992, attempted conspiracy to deliver a controlled substance in 1993, and various misdemeanors up through 1992. The PSI also shows that Nelson was convicted of driving without a license in 1986. In 1993, he was convicted of driving under a suspended license and sentenced to 3 years' probation, from which he was unsatisfactorily released. According to the PSI, in 2006, Nelson *265 was found guilty of violating a protection order issued on behalf of his former common-law wife and her family.

On January 29, 2008, the court sentenced Nelson to 300 days in the county jail and ordered his driver's license revoked for a period of 15 years consecutive to the successful completion of his incarceration. The court deferred execution of the jail sentence until February 3, so that Nelson could seek a work release. The court further ordered that, upon appropriate application, it would consider granting a portion of the sentence under house arrest. The court explained that the sentence of imprisonment was necessary for the protection of the public because the risk was substantial that Nelson would reoffend during any period of probation. The court also reasoned that a lesser sentence would depreciate the seriousness of the crime committed and promote disrespect for the law.

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Cite This Page — Counsel Stack

Bluebook (online)
759 N.W.2d 260, 276 Neb. 997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nelson-neb-2009.