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State v. Watts

Court of Appeals of Nebraska

November 4, 2014

STATE OF NEBRASKA, APPELLEE,
v.
ELIJAH D. WATTS, APPELLANT

Appeal in No. A-13-1105 from the District Court for Lancaster County, PAUL D. MERRITT, JR., Judge, on appeal thereto from the County Court for Lancaster County, JEAN A. LOVELL, Judge. Judgment of District Court affirmed. Appeal in No. A-13-1136 from the District Court for Lancaster County: JODI NELSON, Judge.

Chad J. Wythers, of Berry Law Firm, for appellant.

Jon Bruning, Attorney General, and James D. Smith for appellee.

INBODY, RIEDMDMANN, and BISHOP, Judges.

OPINION

Page 152

[22 Neb.App. 506] Riedmann, Judge.

INTRODUCTION

This is a consolidated appeal in which Elijah D. Watts challenges two separate orders of the district court for Lancaster County involving two separate convictions for driving under the influence (DUI). In case No. A-13-1105, he appeals the district court's dismissal of his appeal from his 2005 county court conviction for DUI. In case No. A-13-1136, he appeals his most recent conviction for DUI, third offense, asserting that the district court erred in finding that his 2005 DUI conviction was a valid prior conviction for purposes of enhancement. These cases have been consolidated for briefing and disposition to address whether Watts' 2005 DUI conviction, which is on appeal in case No. A-13-1105,

Page 153

can be used to enhance his present DUI conviction, which is on appeal in case No. A-13-1136.

BACKGROUND

Watts was convicted of DUI after pleading guilty in the county court for Lancaster County in 2005. He was sentenced to probation, and he completed his probation in early 2007. Watts did not attempt to appeal his conviction or sentence at that time.

Watts was arrested for the present DUI on January 18, 2013. He was charged in the district court for Lancaster County with DUI, third offense, with a breath alcohol concentration of .15 of a gram of alcohol per 210 liters of breath or greater. Watts entered a guilty plea to the underlying offense on [22 Neb.App. 507] October 11. The district court accepted his plea and found him guilty beyond a reasonable doubt.

An enhancement hearing was held immediately following the acceptance of Watts' plea, during which hearing the State offered certified copies of the court files containing Watts' prior DUI convictions from 2005 and 2009. None of the court records associated with the 2005 conviction contained a file stamp.

Watts objected to the use of the 2005 conviction on the basis that it was not a final conviction, because it was currently pending on appeal. Defense counsel advised the court that he had filed a notice of appeal from the 2005 conviction that morning. Watts took the stand and testified as to the filing of the notice of appeal that morning as well. The district court found that both of Watts' prior ...


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