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State v. Mendoza-Bautista

Supreme Court of Nebraska

September 25, 2015

STATE OF NEBRASKA, APPELLEE,
v.
CHRISTIAN A. MENDOZA-BAUTISTA, APPELLANT

Appeal from the District Court for Hall County, WILLIAM T. WRIGHT, Judge, on appeal thereto from the County Court for Hall County, PHILIP M. MARTIN, JR., Judge.

Jeff E. Loeffler and Matthew A. Works, Deputy Hall County Public Defenders, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love for appellee.

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

OPINION

Heavican, C.J.

INTRODUCTION

Christian A. Mendoza-Bautista was convicted of one count of violating Neb. Rev. Stat. § 60-4,108(1)(b) (Cum. Supp. 2014), third offense, and was sentenced to 30 days' imprisonment. The district court, sitting as an intermediate court of appeals, affirmed. Mendoza-Bautista appeals to this court. At issue on appeal is whether Mendoza-Bautista's two prior [291 Neb. 877] convictions for driving under suspension under § 60-4,108(2) were sufficient to enhance to a third offense his current conviction for driving under revocation.

FACTUAL BACKGROUND

Mendoza-Bautista was charged in Hall County Court by complaint on August 7, 2014. That complaint alleged a violation of " driving during suspension 2nd or 3rd offense 60-4,108(1)(b)" and alleged that Mendoza-Bautista had previously been convicted of operating a motor vehicle during

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a period that his license had been " suspended or revoked."

Although the complaint references the crime of driving under suspension, the charged subsection of § 60-4,108(1) is the crime of driving under revocation. Mendoza-Bautista does not assign this inaccuracy in the complaint as error, and there is no assertion by either party that the current charge against Mendoza-Bautista, or his conviction thereon, was for anything other than driving under revocation.

Mendoza-Bautista pled no contest to the August 7, 2014, complaint, and an enhancement hearing was held on September 19. At that hearing, exhibits 1 and 2 were introduced. Exhibit 1 was a September 5, 2013, conviction for violations of Neb. Rev. Stat. § 60-6,196 (Reissue 2010) (aggravated driving under influence), § 60-4,108(2) (driving under suspension), and Neb. Rev. Stat. § 28-905 (Reissue 2008) (operating motor vehicle to avoid arrest), all arising from events occurring on August 5, 2013. On the driving under the influence conviction, Mendoza-Bautista was sentenced to 2 days in jail and fined $500, and his driver's license was revoked for 1 year. He was sentenced to a $100 fine for each of the other two convictions, including the conviction under § 60-4,108(2). Exhibit 2 reflects another September 5 conviction, under a separate docket number, for a violation of § 60-4,108(2) (driving under suspension) arising from events occurring on May 23, 2013. In that case, Mendoza-Bautista was fined $100.

[291 Neb. 878] Mendoza-Bautista objected to the admission of exhibits 1 and 2, arguing they were convictions for driving under suspension under ยง 60-4,108(2) and could not be used to enhance his current ...


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