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State v. Sack

Court of Appeals of Nebraska

May 23, 2017

State of Nebraska, appellee,
v.
Judson L. Sack, appellant.

         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         2.__:__. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         Appeal from the District Court for Madison County: Mark A. Johnson, Judge. Affirmed.

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

          Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.

          Moore, Chief Judge, and Inbody and Bishop, Judges.

          Moore, Chief Judge.

         INTRODUCTION

         Judson L. Sack appeals from his plea-based conviction in the district court for Madison County for theft by shoplifting, third offense. Sack challenges the district court's use of two prior convictions for enhancement purposes. Finding no error, we affirm.

         [24 Neb.App. 722] BACKGROUND

         In June 2016, Sack was charged by information with theft by shoplifting ($500 or less), third offense, a Class IV felony. The offense occurred on March 5, 2016, after the effective date of 2015 Neb. Laws, L.B. 605, which changed the grading of theft. Sack filed a plea in abatement, arguing that his two prior convictions occurred before L.B. 605 modified the maximum value of theft from $200 to $500, see Neb. Rev. Stat. § 28-518(4) (Cum. Supp. 2014 & Reissue 2016), and therefore could not be used to enhance the current offense. The district court overruled the plea in abatement, and thereafter, Sack entered a plea of no contest to the charge pursuant to a plea agreement in which the parties agreed that if the court found that Sack had two prior convictions which were suitable for enhancement, the State would recommend a sentence of 1 year.

         On August 9, 2016, an enhancement and sentencing hearing was held. The State offered into evidence two prior convictions of theft by shoplifting of goods worth less than $200 in 2009 and 2013. Sack again challenged the use of these prior convictions. The district court found the prior convictions to be suitable for enhancement under § 28-518(6) (Reissue 2016) and found Sack guilty of theft by shoplifting, third offense, a Class IV felony. Sack was sentenced to imprisonment for a determinate term of 1 year with the Nebraska Department of Correctional Services.

         ASSIGNMENT OF ERROR

         Sack assigns that the district court erred in enhancing his ...


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