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State v. Thompson

Supreme Court of Nebraska

July 15, 2016

State of Nebraska, appellee,
v.
Robert C. Thompson, appellant.

         1. Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.

         2. Statutes: Legislature: Intent. The fundamental objective of statutory interpretation is to ascertain and carry out the Legislature's intent.

         3. Criminal Law: Statutes: Legislature: Intent. In reading a penal statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

         4. Statutes. To the extent there is a conflict between two statutes, the specific statute controls over the general statute.

         5. ___. A statute may be repealed by implication if a new law contains provisions which are contrary to, but do not expressly repeal, the provisions of the former law.

         6. ___. A legislative act which is complete in itself and is repugnant to or in conflict with a prior law repeals the prior law by implication to the extent of the repugnancy or conflict. However, repeals by implication are not favored.

         7. ___. A statute will not be considered repealed by implication unless the repugnancy between the new provision and the former statute is plain and unavoidable.

         Appeal from the District Court for Madison County: James G. Kube, Judge.

          Chelsey R. Hartner, Chief Deputy Madison County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          [294 Neb. 198] Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          WRIGHT, J.

         NATURE OF CASE

         Robert C. Thompson was convicted in the district court for Madison County, Nebraska, of driving under the influence (DUI), third offense, with a blood alcohol concentration of .15 or greater, in violation of Neb. Rev. Stat. § 60-6, 197.03(6) (Cum. Supp. 2014). He was sentenced to a period of 24 months' probation and was ordered to immediately serve 60 days in the county jail as a condition of his probation. Thompson appeals, asserting that the district court erred in imposing a jail term as a condition of probation. For the reasons set forth below, we affirm.

         BACKGROUND

         On November 30, 2014, Thompson was involved in a motor vehicle accident in which he struck another vehicle from behind. He was ultimately arrested and charged with DUI, third offense, with a blood alcohol concentration of .15 or greater, in violation of § 60-6, 197.03(6). Thompson pled guilty as charged. Following an enhancement hearing, Thompson's conviction was enhanced to a third offense, making it a Class IIIA felony.

         At sentencing, the parties agreed that probation would be appropriate but disagreed as to whether a jail term could be imposed as a condition of probation. Thompson argued that a jail term could no longer be imposed as a condition of probation for any felony because 2015 Neb. Laws, L.B. 605, removed the provision in Neb. Rev. Stat. § 29-2262 (Supp. 2015) that previously allowed up to 180 days in jail as a condition of probation for felony offenses. The State acknowledged the amendment to § 29-2262, but noted that a jail term was arguably still available for a felony DUI, because § 60-6, 197.03(6), which is the more specific statute, expressly [294 Neb. 199] requires that a jail term be imposed as a condition of probation for a felony DUI.

         The district court agreed with the State and found that a jail term of 60 days was required under § 60-6, 197.03. It imposed a period of 24 months' probation in the Specialized Substance Abuse Supervision program with various conditions, including 60 ...


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