Judgments: Appeal and Error. An appellate
court independently reviews questions of law decided by a
Judgments: Jurisdiction. A jurisdictional
issue that does not involve a factual dispute presents a
question of law.
Statutes. Statutory interpretation presents
a question of law.
Statutes: Words and Phrases. As a general
rule, the word "shall" in a statute is considered
mandatory and is inconsistent with the idea of discretion.
Criminal Law: Convictions: Probation and Parole:
Motor Vehicles: Licenses and Permits: Revocation.
When a motor vehicle operator's license revocation must
be part of a court's judgment of conviction in a criminal
case, as distinguished from an authorized term of probation,
it is a distinct part of the offender's punishment for
Constitutional Law: Sentences: Probation and Parole:
Drunk Driving: Motor Vehicles: Licenses and Permits:
Revocation. Because the license revocation
requirement under Neb. Rev. Stat. § 60-6, 198 (Cum.
Supp. 2016) is not a term of probation and the statute does
not authorize a court to impose it as such, the Nebraska
Constitution prohibits a court from later commuting the
Jurisdiction: Time: Appeal and Error. To
vest an appellate court with jurisdiction, Neb. Rev. Stat.
§ 25-1912 (Reissue 2016) requires a criminal defendant
to perfect an appeal within 30 days of the judgment.
Criminal Law: Judgments: Sentences. In a
criminal case, the judgment is the sentence.
from the District Court for Madison County: Mark A. Johnson,
Neb. 62] Alan G. Stoler and Jerry M. Hug, of Alan G. Stoler,
P.C.. L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
Bryant L. Irish's appeal from the district court's
order that denied his request to modify his probation order.
We conclude that the court lacked jurisdiction to consider
his untimely challenge to its sentencing order through a
motion to amend or terminate a term of probation. We
therefore dismiss his appeal.
March 2015, Irish was convicted under Neb. Rev. Stat. §
60-6, 198 (Cum. Supp. 2016) of proximately causing serious
bodily injury to another while driving under the influence of
alcohol, a Class IIIA felony. Section 60-6, 198(1) provides
that upon conviction of this crime,
the court shall, as part of the judgment of conviction, order
the person not to drive any motor vehicle for any purpose for
a period of at least sixty days and not more than fifteen
years from the date ordered by the court and shall order that
the operator's license of such person be revoked for the
sentencing hearing, the court placed Irish on probation for a
period of 60 months and ordered him to serve the first 180
days in jail. It also revoked his driver's license for a
period of 10 years. The court then stated from the bench,
"After a 45-day period of no driving, you may apply for
an ignition interlock permit and install an ignition
interlock [298 Neb. 63] device on any motor vehicle that you
operate." But the court's written sentencing order
was silent on Irish's eligibility to drive with an
ignition interlock device.
appealed, arguing only that the evidence was insufficient to
show that he had proximately caused his passenger's
serious injuries. We rejected that argument in January
August 2016, Irish moved for a nunc pro tune order. He asked
the court to correct what he characterized as the void
sentencing order that it had issued in March 2015. He
asserted that the court had directed his eligibility for an
ignition interlock permit during his license revocation
hearing but that the Nebraska Department of Motor Vehicles
(DMV) had denied his application because no statute
authorized an ignition interlock permit for someone convicted
of Irish's crime. Irish argued that the judgment was
therefore void and requested that the court revise the
revocation period in its order to carry out the court's
intent. After a hearing, which is not part of the record, the
court overruled the motion.
then filed a motion to modify or clarify the probation order.
At the November 2016 hearing, Irish again asked the court to
revise its original probation order to carry out its
sentencing intent because the DMV would not grant him an
ignition interlock permit. He argued that a probation order
can always be modified. The court responded that § 60-6,
198 required the court to order a person not to drive for a
period of at least 60 days and not more than 15 years and to
order a license revocation for the same period. As a ...