State v. Huston, 298 Neb. 323

In July 2016, Brianna L. Huston pleaded guilty in county court to first-offense driving during revocation; the plea deal included 45 days’ jail and 6 months’ probation.
The county court also ordered a mandatory 1-year revocation of Huston’s driver’s license, relying on this court’s prior interpretation of Neb. Rev. Stat. § 60-4,108 in State v. Frederick.
The district court affirmed the county court’s sentence on appeal; Huston then appealed to the Nebraska Supreme Court.
While Huston’s appeal remained pending, the Legislature enacted L.B. 263 (effective Aug. 24, 2017), amending § 60-4,108 to make license revocation discretionary when the offender is placed on probation.
The Supreme Court considered whether the amendment mitigated punishment and thus applied retroactively under State v. Randolph, and whether Huston was entitled to resentencing under the amended statute.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2017 amendment to § 60-4,108 applies to Huston’s sentence pending appeal	Huston: L.B. 263 mitigates punishment and applies retroactively because final judgment had not issued	State: The prior statute and Frederick required mandatory 1-year revocation at sentencing	The amendment mitigates punishment and applies retroactively under Randolph because judgment was not final; Huston entitled to relief
Whether the county court was required to revoke Huston’s license despite probation	Huston: court should have discretion not to revoke when probation imposed	State: prior law (as interpreted in Frederick) required mandatory revocation	Under amended § 60-4,108, revocation is discretionary when defendant is placed on probation; county court’s mandatory revocation was error
Remedy for the sentencing error	Huston: vacate sentence and remand for resentencing under amended statute	State: original sentence was within statutory limits and could be affirmed	Court vacated Huston’s sentence in its entirety and remanded for resentencing consistent with amended § 60-4,108
Need to address other assigned errors (e.g., timing of revocation)	Huston: also challenged immediate start of revocation	State: urged affirmance	Court declined to reach other assignments as not necessary after granting retroactive relief

State v. Frederick, 291 Neb. 243, 864 N.W.2d 681 (court construed pre-amendment § 60-4,108 to require mandatory 1-year revocation)
State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971) (amendments mitigating punishment apply to cases pending on appeal absent contrary legislative intent)
State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (discusses retroactive application of ameliorative statutes to pending appeals)
State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (distinguishes amendments that create new crimes from those that only change punishment)
State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (addressing plain-error relief in sentencing context)
Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (appellate courts need not decide unnecessary issues)