STATE OF NEBRASKA, APPELLEE, V. CHRISTIAN A. MENDOZA-BAUTISTA, APPELLANT.
No. S-14-1165
Nebraska Reports
September 25, 2015
291 Neb. 876
___ N.W.2d ___
Statutes: Appeal and Error. Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.
Appeal from the District Court for Hall County, WILLIAM T. WRIGHT, Judge, on appeal thereto from the County Court for Hall County, PHILIP M. MARTIN, JR., Judge. Sentence vacated, and cause remanded with direction.
Jeff E. Loeffler and Matthew A. Works, Deputy Hall County Public Defenders, for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
HEAVICAN, C.J.
INTRODUCTION
Christian A. Mendoza-Bautista was convicted of one count of violating
FACTUAL BACKGROUND
Mendoza-Bautista was charged in Hall County Court by complaint on August 7, 2014. That complaint alleged a violation of “driving during suspension 2nd or 3rd offense 60-4,108(1)(b)” and alleged that Mendoza-Bautista had previously been convicted of operating a motor vehicle during a period that his license had been “suspended or revoked.”
Although the complaint references the crime of driving under suspension, the charged subsection of
Mendoza-Bautista pled no contest to the August 7, 2014, complaint, and an enhancement hearing was held on September 19. At that hearing, exhibits 1 and 2 were introduced. Exhibit 1 was a September 5, 2013, conviction for violations of
Mendoza-Bautista objected to the admission of exhibits 1 and 2, arguing they were convictions for driving under suspension under
The county court disagreed, found the prior convictions admissible for enhancement purposes, enhanced Mendoza-Bautista’s conviction to third offense, sentenced him to 30 days’ imprisonment, and revoked his driving privileges for 2 years. The district court affirmed the judgment in a written order.
Mendoza-Bautista appeals.
ASSIGNMENT OF ERROR
Mendoza-Bautista assigns that the district court erred in concluding that his prior convictions for driving under suspension under
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.1
ANALYSIS
The sole question presented by this appeal is whether a conviction under
Some background is helpful to understanding our resolution of this issue. Under Nebraska law, an otherwise eligible driver can lose his or her license to operate a motor vehicle for a variety of reasons. The law generally terms such loss as either a suspension or a revocation.
A suspension is “the temporary withdrawal by formal action of the Department of Motor Vehicles of a person’s operator’s license for a period specifically designated by the department, if any, and until compliance with all conditions for reinstatement.”2 On the other hand, a revocation is
the termination by a court of competent jurisdiction or by formal action of the Department of Motor Vehicles of a person’s operator’s license, which termination shall not be subject to renewal or restoration. Application for reinstatement of eligibility for a new license may be presented and acted upon by the department after the expiration of the applicable period of time prescribed in the statute providing for revocation.3
This distinction was first set forth by the Legislature in a series of amendments and revisions to the transportation code in 2001.
Prior to 2001, the law stated that it was illegal for an individual to drive when his or her operator’s license had been suspended or revoked, and provided that such was a Class III misdemeanor. But as part of the 2001 changes,
(1) It shall be unlawful for any person to operate a motor vehicle during any period that he or she is subject to a court order not to operate any motor vehicle for any purpose or during any period that his or her operator’s license has been revoked or impounded pursuant to conviction or convictions for violation of any law or laws of this state, by an order of any court, or by an administrative order of the director. Except as otherwise provided by subsection (3) of this section or by other law, any person so offending shall (a) for a first such offense, be
guilty of a Class II misdemeanor, and the court shall, as a part of the judgment of conviction, order such person not to operate any motor vehicle for any purpose for a period of one year from the date ordered by the court and also order the operator’s license of such person to be revoked for a like period, (b) for a second or third such offense, be guilty of a Class II misdemeanor, and the court shall, as a part of the judgment of conviction, order such person not to operate any motor vehicle for any purpose for a period of two years from the date ordered by the court and also order the operator’s license of such person to be revoked for a like period, and (c) for a fourth or subsequent such offense, be guilty of a Class I misdemeanor, and the court shall, as a part of the judgment of conviction, order such person not to operate any motor vehicle for any purpose for a period of two years from the date ordered by the court and also order the operator’s license of such person to be revoked for a like period. Such orders of the court shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked, whichever is later. (2) It shall be unlawful for any person to operate a motor vehicle (a) during any period that his or her operator’s license has been suspended, (b) after a period of revocation but before issuance of a new license, or (c) after a period of impoundment but before the return of the license. Except as provided in subsection (3) of this section, any person so offending shall be guilty of a Class III misdemeanor, and the court may, as a part of the judgment of conviction, order such person not to operate any motor vehicle for any purpose for a period of one year from the date ordered by the court, except that if the person at the time of sentencing shows proof of reinstatement of his or her suspended operator’s license, proof of issuance of a new license, or proof of
return of the impounded license, the person shall only be fined in an amount not to exceed one hundred dollars. If the court orders the person not to operate a motor vehicle for a period of one year from the date ordered by the court, the court shall also order the operator’s license of such person to be revoked for a like period. Such orders of the court shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked, whichever is later.
It is the interplay between subsections (1) and (2) of this section at issue on appeal.
A review of the plain language of the relevant statutory provision reveals that the county court erred in concluding that the driving under revocation conviction could be enhanced to a third offense through the use of Mendoza-Bautista’s two prior convictions for driving under suspension. A driving under revocation conviction under
Driving under suspension and driving under revocation are two separate crimes. They are defined in two separate statutory subsections; they are each a different class of misdemeanor. The term “suspended” or “suspension” does not appear in
We agree with Mendoza-Bautista that the county court erred when it enhanced his conviction for driving under revocation under
CONCLUSION
The county court erred in enhancing Mendoza-Bautista’s conviction to a third offense, and the district court erred in affirming that enhancement. Mendoza-Bautista’s sentence is vacated and the cause remanded to the district court with direction to remand to the county court for resentencing.
SENTENCE VACATED, AND CAUSE REMANDED WITH DIRECTION.