*1 McDermott, Ronald Filed March
Cunningham, Blackburn, Seggern Living- Von ston, for Douglas, Attorney General, and Harold
Mosher, for J., JJ. McCown, Brodkey, Clinton, McCown, prose- This is an to the District Court cuting attorney provisions under R. R. from an order S. modifying County, Hall previously against defendant upon operating motor vehicle conviction for suspended, offense. On while his license second the District Court affirmed judg- from that appealed to this court. ment the in the Hall charge County pleaded guilty to a li- vehicle a motor while his suspended, offense. The manda- cense was second tory penalty imprison- for that offense is 6 months proba- county jail. The ment alternative op- mandatory suspension of motor vehicle tion. A *2 years required. for 2 also 60- erator’s license 430.01, R. R. S. 1943. January county court, 5, 1977, on sentenced jail, subject to to ”6 review
the defendant in months days,” release, and sus- 30 recommended work years. pended for 2 On Janu- license ary put 5, 1977, the into sentence was execution jail. to commitment of the defendant January 10, 1977, filed motion for On a ground upon the the of sentence that modification imposed errone- was an unauthorized and hearing, 1977, ous sentence. On after county granted the motion defendant’s probation period for of 1 sentenced defendant to year days period with of a condition that 89 that spent jail; gave on the credit for time served the previous sentence; release. and recommended work attorney gave prosecuting Thereafter notice the appeal pursuant intent perfected.
1943, and the April 26, 1977, that the the District Court held original in the stat- court was within utory authority limits; no court had sentence; and reinstated review May original court. On 1977, the District Court sustained defendant’s motion May rehearing, 25, 1977, for new trial. On original found Court statutory could court was within limits and changed. not be reviewed The District then reinstated referring except to a review days. in 30 consistently held that the ab-
This court has put statute, when sentence has been sence a valid prisoner, into execution commitment modify, aside, amend, court has set during sentence, revise the after either term session of at which the sentence was imposed. Any attempt do so is of effect and sentence remains force. Adamson, 2d 925. Neb. N. W. sentence here as A valid and authorized 6 months in awas valid authorized
sentence for the offense involved here. The addition “subject days by of the words in 30 Court” was unauthorized and the sentence as nounced was therefore partially valid and part erroneous. The essential punishment, including tence is the the kind and the O’Grady, amount. Ulrich v. 136 Neb. N. W. 81. The addition of surplusage.
view Where a a sentence is *3 portion erroneous, valid and a is the court invalid modify by has revise sentence moving the invalid or of the erroneous sen- remaining portion tence if the sentence consti- complete tutes a valid The District Court determining was therefore in correct court should have its modified revised by pro- removing it of which days, vided for review in and that setting court’s in action aside entering one was erroneous. new Court, however,
The District not have the au- did thority to set of the aside the sentence appealed by prosecution from nor reinstate the in this case. appealed
The order and from sentence here was 29-2317, under section pro- R. S. 1943. Section judgment any vides: “The in action the court provisions under the sections 29-2317and 29- taken any nor in manner af- not be reversed shall in the trial has been the defendant fected when legally jeopardy, in the de- in but such cases the law of the district court shall determine cision may pending govern any be in similar case which may rendered, or which the time the decision in the district.” thereafter arise placed legally jeopardy The defendant had been of the District and the decision only govern could determine the law pending not cases and similar judgment or in this case. The required of the as a condition probation appealed judgment completed prior to the from was Court, term of
of the District and the expired. judgment bation has The of the now presumptively fully exe- court has therefore cuted and defendant been adversely be affected
cannot appeal. this affirmed Court is only.
as similar future cases Affirmed. dissenting. The court that the defend- imprisoned county jail ant for 6 months provision the sen- valid sentence. The ‘‘subject days” was sur- plusage legal of no effect. It did render the otherwise valid or errone- ous. determination the District Court
original sentence was valid should have ended the proceeding. appeal by There for an proceeding R. S. the because effect *4 rights a defendant who has been jeopardy. only provision for a direct in a under sec- 29-2315.01, tion R. S. 1943.
1943. join J., J., C.
White, and this dissent. Spencer, Olson, State of v. Theodore V.
Filed March Magnuson Magnuson, Magnuson Veldon Peetz, for Douglas, Attorney General, and Bernard Packett,
L. White, C. JJ., McCown, Brodkey, and Re- Kuns, Judge. tired District Thomas, The defendant was convicted in the court County, Holt a motor vehicle speed per a rate of of 69.4 miles hour in a 55 mile an hour zone. He was assessed a fine $15 perfected costs. He his to Court; appeal, the sentence and conviction were af- prosecutes firmed. He to this court. We affirm. apprehended by
The defendant was a member of speed the Nebraska State Patrol and the was deter- mined means a vascar unit. The vascar unit is essentially a device that measures time and dis-