State v. FullerState v. Fuller
NATURE OF CASE
Jimmel W. Fuller pled no contest to third degree assault; driving under the influence, first offense; and driving during suspension, second offense, in Lancaster County District Court. The сourt accepted Fuller‘s pleas, found him guilty, and sentenced him to prison terms of 1 year, 30 days, and 90 days, respectively, to be served concurrently. The court also revokеd his operator‘s license for 2 years beginning on the date he is released from prison or placed on parole, whichever is first.
SCOPE OF REVIEW
An appellate court will not disturb a sеntence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009).
FACTS
On April 8, 2008, Fuller caused an automobile accident in Lincoln, Nebraska, by turning in front of another vehicle. The driver of the other vehicle suffered bodily injury as a result of the accident. Fuller fled the scene оf the accident on foot but was subsequently apprehended. It was then discovered that his blood alcohol level was in excess of the legal limit for driving a motor vehicle аnd that he had been driving with a suspended license.
Fuller was initially charged with leaving the scene of an injury accident, a Class
Fuller timely appeals, Pursuant to
ASSIGNMENTS OF ERROR
Fuller claims that the district court abused its discretion by imposing excessive sentences. He also claims that the court erred in ordering that his operator‘s license revocation not begin until his release from prison or until he is placed on parole.
ANALYSIS
EXCESSIVE SENTENCES
Fuller claims that the district court abused its discretion in sentencing him to prison instead of placing him on probation, because he was already incarcerated on another offense. He argues that because he was already in prison, the sentences did not have a deterrent effect and did not strike the correct balance between the protection of the public and Fuller‘s rehabilitative needs.
The court-ordered presentence investigation report details Fuller‘s lengthy criminal history, including robbery, three convictions for false information, three convictions for possession of marijuana, possession of a stolen firearm, failure to appear, three counts of failing to carry an operator‘s liсense, driving on the sidewalk, disorderly conduct, obstructing the administration of law, open container, possession of a controlled substance, assault, third degree domestic аssault, suspended license, two counts of violation of protection order, and driving during revocation, second offense. He has served multiple jail terms, and at the time of sеntencing, he was incarcerated on charges unrelated to those at issue in this case.
Fuller was found guilty of a Class I misdemeanor, a Class W misdemeanor, and a Class II misdemeanоr. A Class I misdemeanor is punishable by up to 1 year‘s imprisonment, a $1,000 fine, or both.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009). Fuller‘s sentences are within these limits. Considering the seriousness of the charges and Fuller‘s extensive criminal history, the district court did not abuse its discretion in imposing the sentences. This assignment of error is without mеrit.
LICENSE REVOCATION
Fuller also claims that the language of
In State v. Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009), we considered the meaning of the phrase “from the date ordered by the court” with regard to
We held that the language “from the date ordered by the court” referred to the date that the court оrdered the 15-year license revocation, and not from any other date of any other order affecting the defendant‘s license. State v. Nelson, supra. Because the court in Nelson did not specify a date for the 15-year period to begin, it necessarily began on the day the court imposed the sentence and not before. Unlike Nelson, the court in this case specified that Fuller‘s license revocation is to begin on either the date he is released from prison or the date he is placed on parole, whichever is earlier.
The Nebraska Court of Appeals considered this issue with regard to
Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008). As plainly stated in the language of
Although the rule of lenity requires a court to resolve ambiguities in a penal code in the defendant‘s favor, the touchstone of the rule of lenity is statutory ambiguity, and where the legislative language is clear, a court may not manufacture ambiguity in order to defeat that intеnt.
CONCLUSION
We conclude that the district court did not abuse its discretion in sеntencing Fuller to 1 year‘s imprisonment and did not err or abuse its discretion in ordering the 2-year license revocation set forth in
AFFIRMED