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02/01/85 STATE NEBRASKA v. JAY D. JOST

February 1, 1985

STATE OF NEBRASKA, APPELLEE,
v.
JAY D. JOST, APPELLANT



Appeal from the District Court for Keya Paha County: Edward E. Hannon, Judge.

Krivosha, C.j., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ.

SYLLABUS BY THE COURT

1. Motor Vehicles: Licenses and Permits: Revocation. The gravamen of or the misconduct prohibited by Neb. Rev. Stat. §§ 60-418 and 39-669.30 (Reissue 1984) is operation of a motor vehicle after judicial or administrative deprivation of the operator's privilege or license to operate a motor vehicle on the public highways of the State of Nebraska.

2. Constitutional Law: : Right to Counsel: Waiver. An accused is entitled to be represented by counsel in all critical stages of a criminal proceedings against him, but the right to counsel may be waived, if such waiver is made intelligently and understandingly with the knowledge of an accused's right to counsel.

3. Constitutional Law: : Right to Counsel: Waiver. A defendant has a constitutional right of self-representation and may proceed to defend himself without counsel, when he voluntarily, understandingly, and intelligently elects to do so.

4. Pleas: Appeal and Error. Mere failure to comply with precise ceremonial or verbal formality in arraignment and entry of a plea is not so prejudicial as to require setting aside a defendant's guilty plea which is otherwise entered in accordance with statutory and constitutional requirements.

The opinion of the court was delivered by: Shanahan

In the county court for Keya Paha County, Jay D. Jost was convicted of the offense of operating a motor vehicle during a period when the operator's license of Jost was suspended. See Neb. Rev. Stat. §§ 60-418 and 60-430.01 (Reissue 1984). On appeal to the district court Jost's conviction was affirmed. We affirm.

Jost assigns as error the county court's (1) failure to obtain from Jost and expressly find a voluntary, understood, and intelligent waiver of the right to counsel; (2) failure to provide an attorney for Jost; and (3) acceptance of a plea of guilty to an act not committed, namely, Jost's guilty plea to the charge of operating a motor vehicle during a period of his suspended operator's license, whereas the driver's license of Jost had been revoked, not suspended.

Jost was initially charged with driving under suspension and driving under the influence of alcohol (Neb. Rev. Stat. § 39-669.07 (Reissue 1984)). Both counts arose as a result of one driving incident in which the Keya Paha County sheriff arrested Jost on May 16, 1982. The facts set forth were elicited when the county court sought a factual basis for Jost's "guilty" plea.

On October 22, 1980, and pursuant to the "point system" authorized by Neb. Rev. Stat. §§ 39-669.26 and 39-669.27 (Reissue 1984), the director of the Department of Motor Vehicles of the State of Nebraska revoked Jost's operator's license on account of a proscribed accumulation of points for traffic offenses.

In the early hours of May 16, 1982, and while the revocation of the Department of Motor Vehicles was still effective, Jost was seated in the right front seat of an automobile in the middle of the main street of Springview, Nebraska. The person who drove the auto to such location was not in the car with Jost at this time. Upon observing a car's headlights approaching from the rear, Jost slid behind the steering wheel and drove the car to the side of the street. The car approaching from the rear was driven by the sheriff, who saw Jost operating the automobile. Because he was not in uniform at this time, the sheriff returned to his home, changed into his uniform, and set out to find Jost. Jost and his driver-companion had traveled south out of Springview for several miles, where the driver stopped the car when its headlights failed. Approximately one-half hour after his initial contact with Jost, the sheriff arrived at the unlighted and parked vehicle containing Jost and his companion. The sheriff then issued a "Uniform Citation and Complaint" charging Jost with two offenses, namely, "Driving under Suspension § 60-430.01," and "Driving under Influence of Alcohol 2nd offense § 39-669.07."

Jost's attorney arranged a plea bargain with the county attorney, that is, dismissal of the charge of driving while under the influence of alcoholic liquor in exchange for Jost's plea of guilty to the charge of driving under suspension. After obtaining the plea agreement but before Jost's arraignment, the attorney for Jost withdrew. Jost was arraigned on December 17, 1982, in the county court. At the arraignment the court reminded Jost that his attorney had withdrawn and told Jost that if Jost wanted to be represented by an attorney, such wish should be indicated to the court. The court also informed Jost about the availability of court-appointed counsel, if Jost was "unable to afford own attorney." The court then elaborated the rights accorded Jost, including the right to a jury trial, confrontation of witnesses, and the privilege against self-incrimination. Next, the court explained the consequences of the various pleas which Jost could enter and the penalty which could be imposed on conviction. See § 60-430.01 and Neb. Rev. Stat. § 28-106 (Reissue 1979) (Class III misdemeanor). The county Judge informed Jost that he was charged with "driving under suspension" and that the State was required to prove by evidence beyond a reasonable doubt that Jost was "driving an automobile on May 16, 1982, after your license was suspended." After the court's inquiry about the nature of his plea to the charge of driving under suspension, Jost entered a plea of guilty. When the court asked the county attorney about the factual basis for the charge against Jost, the county attorney recited the previously described events of May 16 and referred to an abstract of Jost's driving record reflecting revocation of Jost's driver's license "for points" on October 22, 1980, with no reinstatement of Jost's operator's privileges at the time the sheriff saw Jost drive the car on the Springview street. The court then inquired of Jost: "Is it all correct what he [the county attorney] said, basically?" Jost responded: "Yeah. What he says is correct." The court deferred sentencing until April 15, 1983. At the sentence hearing Jost was asked by the Judge whether he had decided to have an attorney present. Jost responded: "Yes, I don't need one present." The county Judge then imposed sentence on Jost, who appealed to the district court and ultimately to this court.

At the time Jost operated the auto on the public street in Springview, pertinent statutes of Nebraska provided:

Any resident or nonresident whose operator's license or right or privilege to operate a motor vehicle in this state has been suspended or revoked as provided in this act, shall not operate a motor vehicle in this state under a license, permit or registration certificate issued by any other jurisdiction or otherwise during such suspension or after such revocation until a new license is obtained when and if permitted under this act, except that such ...


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