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State v. Huston

Supreme Court of Nebraska

December 1, 2017

State of Nebraska, appellee,
v.
Brianna L. Huston, appellant.

         1. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         2. Criminal Law: Statutes: Sentences: Legislature. Where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise.

         3. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         Appeal from the District Court for Hall County, Mark J. Young, Judge, on appeal thereto from the County Court for Hall County, Philip M. Martin, Jr., Judge. Sentence vacated, and cause remanded with directions.

          Robert W. Alexander, Deputy Hall County Public Defender, for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

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

         [298 Neb. 324] KELCH, J.

         NATURE OF CASE

         Brianna L. Huston was sentenced to jail time and probation after pleading guilty to first-offense driving during revocation. In addition to this sentence, the county court for Hall County ordered a revocation of Huston's driver's license for 1 year, believing that such was required under this court's interpretation of Neb. Rev. Stat. § 60-4, 108 (Cum. Supp. 2016) set forth in State v. Frederick[1] On appeal, the district court for Hall County affirmed. Huston subsequently appealed the revocation portion of her sentence to this court.

         While Huston's appeal was pending, 2017 Neb. Laws, L.B. 263, went into effect, which amended § 60-4, 108 to allow the sentencing court discretion in ordering a revocation for first-time offenders when the offender has been placed on probation.[2] Because we determine that the amended version of § 60-4, 108 applies retroactively to Huston's sentence, we vacate Huston's sentence in its entirety and remand the cause to the district court with directions to remand it to the county court for resentencing consistent with the amended version of § 60-4, 108.

         FACTS

         In July 2016, Huston was charged with driving during revocation, second or third offense. In November, she pled guilty to an amended charge of first-offense driving during revocation. In exchange for Huston's plea, the State agreed to a sentence of 45 days' jail time and to not oppose Huston's request for house arrest. The county court sentenced Huston to 45 days' jail time and 6 months' probation and revoked her license for 1 year.

         In revoking Huston's license, the county court found that it was obligated to do so by State v. Frederick, which involved [298 Neb. 325] another appellant convicted of driving during revocation.[3] In Frederick, we found no merit to the appellant's assignment of error and affirmed his conviction. Although neither party assigned or argued it, we found that the sentencing court committed plain error when it failed to revoke the appellant's driver's license. We said that revocation was ...


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