State v. Huston, 298 Neb. 323

Background

Brianna L. Huston pled guilty in county court (Nov 2016) to first-offense driving during revocation in exchange for 45 days jail and the State’s agreement not to oppose house arrest.
The county court sentenced Huston to 45 days jail, 6 months probation, and ordered a 1-year driver’s license revocation, believing revocation was mandatory under then-existing § 60-4,108 as interpreted in State v. Frederick.
The district court affirmed the county court’s sentence on appeal; Huston then appealed to the Nebraska Supreme Court, challenging the license revocation and its immediate start date.
While Huston’s appeal was pending, the Legislature enacted L.B. 263 (effective Aug 24, 2017), amending § 60-4,108 to make revocation discretionary when the offender is placed on probation.
The Nebraska Supreme Court considered whether the amendment mitigated punishment and therefore applied retroactively under State v. Randolph, given that final judgment had not been entered.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the 2017 amendment to § 60-4,108 apply retroactively to Huston whose offense preceded the amendment but whose judgment was not final?	Huston: Amendment mitigates punishment; Randolph requires application of amended, more lenient law.	State: Implicitly contended prior law and Frederick controlled; amendment occurred during appeal so may not affect sentence.	The amendment mitigates punishment and applies retroactively because judgment was not final; Randolph governs.
Was the county court required to revoke Huston’s license for 1 year at sentencing?	Huston: Revocation should have been discretionary under the amended statute.	State: At sentencing, prior statute (as interpreted in Frederick) mandated revocation.	Because the amended statute applies, the county court should have had discretion; mandatory revocation was plain error.
Is the sentence within statutory limits such that appellate deference bars relief?	Huston: Even if within old limits, the court could not exercise discretion required by the amended law.	State: Sentence was within statutory limits and could remain under amended statute.	Although within prior statutory limits, the court’s lack of discretion (mandatory revocation) requires vacatur and resentencing.
Must the Court decide Huston’s additional assignment that revocation must start immediately?	Huston: Contested the immediate commencement of revocation.	State: Argued the sentencing order was proper under then-applicable law.	The Court did not address this issue as unnecessary after finding retroactive application and ordering resentencing.

Key Cases Cited

State v. Frederick, 291 Neb. 243, 864 N.W.2d 681 (Neb. 2015) (court previously interpreted § 60-4,108 as mandating one-year revocation for first-offense driving during revocation)
State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (Neb. 1971) (amendment mitigating punishment that occurs before final judgment applies retroactively)
State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (Neb. 2015) (application of Randolph principle)
State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (Neb. 2015) (distinguishing mitigation-of-punishment amendments from creation of new crimes)
State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (Neb. 2017) (recognizing plain-error relief in sentencing contexts)