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State v. Irish

Supreme Court of Nebraska

October 13, 2017

State of Nebraska, appellee,
v.
Bryant L. Irish, appellant.

         1. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         2. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.

         3. Statutes. Statutory interpretation presents a question of law.

         4. 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.

         5. 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 the crime.

         6. 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 original sentence.

         7. 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.

         8. Criminal Law: Judgments: Sentences. In a criminal case, the judgment is the sentence.

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

         [298 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 for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.

         INTRODUCTION

         This is 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.

         BACKGROUND

         In 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.[1] 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 same period.

         At 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.

         Irish 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 2016.[2]

         In 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.

         Irish 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 ...


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