State v. Nelson

StAte of nebrASkA, Appellee , v.
ricky d. nelSon, AppellAnt.
759 N.W.2d 260
Filed January 2, 2009. 	No. S-08-203.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
2. Sentences: Appeal and Error. Whether an appellate court is reviewing a sen-
tence for its leniency or its excessiveness, a sentence imposed by a district court
that is within the statutorily prescribed limits will not be disturbed on appeal
unless there appears to be an abuse of the trial court’s discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
4. Statutes: Appeal and Error. It is not within an appellate court’s province to read
a meaning into a statute that is not there.
5. Criminal Law: Sentences: Judgments. In a criminal case, the “judgment” is
the sentence.
6. Prisoners: Sentences. Conditions of release are generally entrusted to the dis-
cretion of the judicial officer, who must consider the unique circumstances of
each case.
7. Sentences: Probation and Parole: Appeal and Error. An order denying proba-
tion and imposing a sentence within the statutorily prescribed limits will not be
disturbed on appeal unless there has been an abuse of discretion.
8. Judges: Words and Phrases. The term “judicial abuse of discretion” means that
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
9. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the violence involved in the commission of the crime.
10. ____. In imposing a sentence, the sentencing court is not limited to any mathe-
matically applied set of factors.
11. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding the
defendant’s life.
12. Sentences: Probation and Parole. In considering a sentence of probation in lieu
of incarceration, the court should not withhold incarceration if a lesser sentence
would depreciate the seriousness of the offender’s crime or promote disrespect for
the law.
STATe v.N eLSoN 	997
Cite as 276 Neb. 997
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

Appeal from the District Court for Lancaster County: JoHn
A. colborn, Judge. Affirmed.
Dennis R.k eefe, Lancaster County Public Defender, and
Shawne lliott for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
H eAvicAn, 	c.J., 	WriGHt, 	connolly, 	G errArd, 	StepHAn,
mccormAck , and miller-lermAn, JJ.
mccormAck , J.
NATUReo F CASe
Ricky D. Nelson’s motor vehicle operator’s license was
revoked in 1992 for a period of 15 years, after Nelson was
convicted of third-offense driving under the influence (DUI).
Nearly 15 years later, Nelson was pulled over for speeding.
He was convicted and sentenced for driving during his 15-year
license revocation period.
Nelson alleges that his license revocation had expired by the
time of the violation. Specifically, Nelson argues that he should
have been given credit for the period he was not allowed to
drive while on bail awaiting sentencing for the 1992 DUI,
because the 15-year revocation period actually began to run
during that time. Nelson also argues that although he was sen-
tenced to 3 months’ imprisonment in 1992 and a license revo-
cation period does not run concurrently with a jail sentence, his
jail sentence should not be excluded from his revocation period
in this case because there is no evidence of how much time he
actually spent in jail.
BACkGRoUND
on March 6, 1992, Nelson was arrested for driving under the
influence. This was his third-offense DUI. The statute under
which Nelson was charged in 1992 provided that a person who
had two or more prior convictions was guilty of a Class W
misdemeanor and that “as part of the judgment of conviction,”
the court “shall”
order such person not to drive any motor vehicle in the
State of Nebraska for any purpose for a period of fifteen
998 	276N eBRASkAR ePoRTS

years from the date ordered by the court and shall order
that the operator’s license of such person be revoked
for a like period. Such revocation shall be administered
upon sentencing, upon final judgment of any appeal or
review, or upon the date that any probation is revoked.
Such revocation shall not run concurrently with any jail
term imposed.1
on May 29, 1992, Nelson pled guilty to the charges.
Sentencing was postponed due to Nelson’s request that a
presentence investigation be prepared. Pending sentencing, the
court ordered Nelson released on a $2,500 bond. The court also
ordered that Nelson turn his license over to the probation office
and that he not drive a motor vehicle for any reason during the
period he was on bail.
The record contains a journal entry dated September 4,
1992, reflecting that the court sentenced Nelson to 3 months’
imprisonment, a $500 fine, and a 15-year license revocation.
The jail term was originally typed as “___ days,” but this was
crossed out and handwritten over as “3 months,” and Nelson
admits he was sentenced to 3 months in jail. The court did not
specifically set forth a date from which Nelson’s revocation
period would begin to run.
The record is unclear, however, as to how much of the jail
sentence was actually served. An official abstract of record by
the Nebraska Department of Motor Vehicles (DMV) printed
in June 2007 appears to show that Nelson served 3 days’ jail
time for his third-offense DUI. The record also contains a
certified “order of Suspension” by the DMV sent to Nelson
on September 15, 1992, stating that his license was revoked
for a period of 15 years to begin on September 6, 1992—3
days after Nelson was sentenced—and to end on September
6, 2007.
Almost 15 years after the 1992 sentence for third-offense
DUI, on June 18, 2007, Nelson was stopped for speeding. He
was driving his employer’s vehicle and did not have a license.
Nelson had not, at that point, applied for reinstatement of his
1 Neb. Rev. Stat. § 39-669.07(2)(c) (Cum. Supp. 1990) (currently located at
Neb. Rev. Stat. § 60-6,197.03(4) (Cum. Supp. 2006)).
STATe v.N eLSoN 	999
Cite as 276 Neb. 997

revoked license. When the officer ran Nelson’s name, he was
informed that Nelson’s license had been suspended and that
Nelson was not eligible for reinstatement until September
6, 2007.
Nelson was charged with operating a motor vehicle dur-
ing a period of revocation, in violation of Neb. Rev. Stat.
§ 60-6,197.06 (Cum. Supp. 2006). That section deals specifi-
cally with revocations pursuant to DUI offenses and states in
relevant part that any person operating a vehicle on the high-
ways or streets of this state while his or her operator’s license
has been revoked, pursuant to third-offense DUI, shall be guilty
of a Class IV felony. A Class IV felony carries a maximum of 5
years’ imprisonment, a $10,000 fine, or both, and has no mini-
mum sentence.2 It further provides that “the court shall, as part
of the judgment of conviction, revoke the operator’s license of
such person for a period of fifteen years.”3
In a bench trial on a stipulated record, Nelson argued that
because of the period during which his license had been sus-
pended while he was on bail in 1992, the 15-year suspension
period had ended by the time he was pulled over in 2007.
While he admitted he was driving without a license, he argued
that he should be subject only to a misdemeanor offense of
driving after a period of revocation but before issuance of a
new license.4 The district court rejected this argument and
found Nelson guilty under § 60-6,197.03.
Nelson’s counsel argued for leniency at the sentencing hear-
ing, asking for probation instead of incarceration. In particu-
lar, counsel argued that another 15-year suspension would be
unduly harsh, and counsel asserted that under § 60-6,197.06,
Nelson would not be subject to another mandatory 15-year
license suspension if he were only sentenced with probation
instead of jail time. The Nebraska Probation System presen-
tence investigation report (PSI), prepared for Nelson’s sentenc-
ing for violating § 60-6,197.03, reveals three DUI convictions
2 Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2006).
3 § 60-6,197.06. See, also, State v. Hense, ante p. 313, 753 N.W.2d 832
(2008).
4 See Neb. Rev. Stat. § 60-4,108(2) (Reissue 2004).
1000 	276N eBRASkAR ePoRTS

that occurred in 1987, 1990, and 1992. In addition, the PSI
shows one conviction for possession of drug paraphernalia in
1985, a conviction of possession of controlled substance in
1989, possession of marijuana in 1992, attempted conspiracy
to deliver a controlled substance in 1993, and various misde-
meanors up through 1992. The PSI also shows that Nelson was
convicted of driving without a license in 1986. In 1993, he was
convicted of driving under a suspended license and sentenced
to 3 years’ probation, from which he was unsatisfactorily
released. According to the PSI, in 2006, Nelson was found
guilty of violating a protection order issued on behalf of his
former common-law wife and her family.
on January 29, 2008, the court sentenced Nelson to 300
days in the county jail and ordered his driver’s license revoked
for a period of 15 years consecutive to the successful comple-
tion of his incarceration. The court deferred execution of the
jail sentence until February 3, so that Nelson could seek a
work release. The court further ordered that, upon appropriate
application, it would consider granting a portion of the sen-
tence under house arrest. The court explained that the sentence
of imprisonment was necessary for the protection of the public
because the risk was substantial that Nelson would reoffend
during any period of probation. The court also reasoned that a
lesser sentence would depreciate the seriousness of the crime
committed and promote disrespect for the law.o n February 5,
Nelson’s application for a work release was denied, due to a
positive drug test result.
Nelson appealed his conviction and sentence, and we moved
the case to our docket pursuant to our statutory authority to
regulate the caseloads of the appellate courts of this state.5
ASSIGNMeNTSo Fe RRoR
Nelson asserts that the district court erred in (1) convicting
him of driving during a 15-year revocation when there was
insufficient evidence to support that conviction and (2) failing
to place Nelson on probation.
5 See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).
STATe v.N eLSoN 	1001
Cite as 276 Neb. 997

STANDARDo F ReVIeW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.6
[2,3] Whether an appellate court is reviewing a sentence
for its leniency or its excessiveness, a sentence imposed by
a district court that is within the statutorily prescribed limits
will not be disturbed on appeal unless there appears to be
an abuse of the trial court’s discretion.7 A judicial abuse of
discretion exists only when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying a just result in matters submitted
for disposition.8
ANALYSIS
15-yeAr licenSe revocAtion period
Section 60-4,104 provides that a copy of the order of the
director revoking any operator’s license, duly certified by the
director and bearing the seal of the DMV, “shall be admissible
in evidence without further proof and shall be prima facie
evidence of the facts therein stated in any proceeding, civil or
criminal, in which such suspension or revocation is an issuable
fact.”9 In this case, the State entered into evidence a certified
copy of the order of the director reflecting that Nelson’s license
for his third-offense DUI was revoked until September 6, 2007.
Thus, the burden shifted to Nelson to rebut the correctness of
that order.10 Nelson argues that the May 29, 1992, bail order
and the September 4 sentencing order rebut the State’s prima
facie case.
As a preliminary matter, we agree with Nelson that the
record is unclear as to how much jail time Nelson served
6 State v. Hense, supra note 3.
7 State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005).
8 Id.
9 Neb. Rev. Stat. § 60-4,104 (Reissue 2004).
10 See Delgado v. Abramson, 254 Neb. 606, 578 N.W.2d 833 (1998).
1002 	276N eBRASkAR ePoRTS

for his third-offense DUI conviction. This is potentially rele-
vant because, even if the 15-year period began when Nelson
alleges, § 39-669.07(2)(c) provided that the 15-year revo-
cation period shall not run concurrently with any jail term
imposed. In other words, had Nelson served the 3 months
of jail time to which he was sentenced, the 15-year period
would not have expired by the time he was stopped on June
18, 2007. In this case, however, the DMV records admitted
into evidence by the State indicate that Nelson spent only 3
days in jail, and there is no other evidence indicating the time
actually served. Thus, we will assume that Nelson’s argu-
ments are not rendered irrelevant by the concurrency clause
of § 39-669.07(2)(c).
Nelson’s first argument in support of his contention that his
15-year revocation expired May 29, 2007, is that he should be
given credit for the time he was ordered not to drive while on
bail awaiting his sentence for the third-offense DUI. Nelson
points out that under the current administrative license revo-
cation scheme, not yet in effect at the time of his conviction,
any period of revocation imposed for a violation of Neb. Rev.
Stat. § 60-6,196 (Reissue 2004) is reduced by any period of
revocation imposed under Neb. Rev. Stat. § 60-498.02 (Reissue
2004).11 Nelson also points out that Neb. Rev. Stat. § 83-1,106
(Reissue 2008) gives credit against a term of incarceration for
time served while awaiting sentencing.
[4] But Nelson admits that there is no law which requires him
to be given credit for the time he was unable to drive pursuant
to the terms of his bail while awaiting sentencing in 1992. The
Legislature has demonstrated that it can and will specify when
credit should be given for similarly imposed restrictions—when
it wishes to do so. The plain language of § 39-669.07(2)(c) did
not provide for credit for any license restrictions imposed prior
to sentencing, and it is not within an appellate court’s province
to read a meaning into a statute that is not there.12 We find no
merit to Nelson’s argument that he should be given “credit”
against his 15-year license revocation.
11 Neb. Rev. Stat. § 60-6,197.05 (Reissue 2004).
12 In re Adoption of Kailynn D., 273 Neb. 849, 733 N.W.2d 856 (2007).
STATe v.N eLSoN 	1003
Cite as 276 Neb. 997

We next turn to Nelson’s contention that under the plain
language of § 39-669.07(2)(c), his 15-year license revocation
began with the order of May 29, 1992. Nelson points to the
provision of § 39-669.07 that the driver shall not drive for a
period of 15 years “from the date ordered by the court and [the
court] shall order that the operator’s license . . . be revoked for
a like period.” Nelson reasons that because the September 4
sentencing order did not otherwise specify when the imposed
15-year revocation began to run, under § 39-669.07, the revo-
cation period must run from the first time the court “ordered”
him to turn over his license, on May 29. Relying on State
v. Schulz,13 Nelson further argues that such construction of
the statute is necessary to prevent the sentence from being
illegal for imposing a sentence in excess of that directed by
the statute.
In Schulz, upon finding the defendant guilty of second-
offense DUI, the trial court had sentenced the defendant to 1
year of probation, with 6 months’ suspension of his driver’s
license and 48 hours in the county jail as conditions of his
probation. Five months later, the defendant’s probation was
revoked, and the court revoked the defendant’s driver’s license
for an additional 12 months and sentenced him to 30 days in
jail. Section 39-669.07, as it existed at that time, stated that a
person found guilty of second-offense DUI would be ordered
not to drive “‘for a period of one year from the date of his or
her conviction.’”14 Section 28-106 stated that the mandatory
penalty for a second conviction of a Class W misdemeanor was
30 days’ imprisonment.
We held in Schulz that the 48 hours of jail time served by the
defendant was not part of his mandatory sentence of 30 days’
imprisonment, but was instead a statutory condition of proba-
tion. Therefore, imposing 30 days in addition to that time did
not violate the maximum sentence for the crime. However, we
held that imposing a 1-year license revocation from the time
the defendant’s probation was revoked violated the plain lan-
guage of the statute mandating that the license revocation run
13 State v. Schulz, 221 Neb. 473, 378 N.W.2d 165 (1985).
14 See id. at 478, 378 N.W.2d at 168 (emphasis omitted).
1004 	276N eBRASkAR ePoRTS

“‘from the date of his or her conviction.’”15 We concluded that
the State’s concern—that such construction left little incentive
not to violate the probation—was a concern “to be addressed
by the Legislature rather than by this court.”16
But by the time of Nelson’s conviction in 1992, § 39-669.07
had changed significantly. It no longer stated that the revoca-
tion should run from the date of the conviction, and it stated
that the revocation shall be “administered upon sentencing,
upon final judgment of any appeal or review, or upon the date
that any probation is revoked.”17 Thus, our reasoning in Schulz
does not support Nelson’s argument that we must construe his
15-year revocation period as running from the date he was
released on bail pending sentencing. To the contrary, by hold-
ing that the court could impose 30 days’ jail time in addition
to the 48 hours already incarcerated, we recognized that the
same type of consequence does not necessarily make for the
same “sentence.”
The fundamental error of Nelson’s arguments is that what
he misconstrues as a “sentence” is merely a condition of bail.
Neb. Const. art. I, § 9, provides in part that “[a]ll persons shall
be bailable by sufficient sureties, except for treason, sexual
offenses involving penetration by force or against the will of
the victim, and murder, where the proof is evident or the pre-
sumption great.” Neb. Rev. Stat. § 29-901 (Cum. Supp. 2006),
in turn, states that any bailable defendant shall be ordered
released from custody pending judgment and that the judge
shall impose conditions of release which will reasonably assure
the appearance of the person for trial—including restrictions
on travel.
[5,6] In a criminal case, the “judgment” is the sentence.18 It
is clear that Nelson was released pending the creation of the
PSI report that the judge was to consider in sentencing. It was
not until September 6, 1992, that the sentence was rendered.
15 Id.
16 Id. at 480, 378 N.W.2d at 170.
17 § 39-669.07(2)(c).
18 State v. Hense, supra note 3. See, also, State v. Rodriguez, No. A-92-614,
1993 WL 173833 (Neb. App. May 25, 1993).
STATe v.N eLSoN 	1005
Cite as 276 Neb. 997

Conditions of release are generally entrusted to the discretion
of the judicial officer, who must consider the unique circum-
stances of each case.19 Restrictions on the right to drive are
not generally considered so severe as to unreasonably restrain
the accused from liberty while on bail,20 and are, in fact, not
uncommon.21 For instance, in Wells v. State,22 the court held
that the continuing enforcement of the court’s order that the
defendant surrender his driver’s license did not violate a statu-
tory prohibition against enforcing a sentence under superse-
deas, because the order for surrender was not part of the
defendant’s sentence. The Georgia Court of Appeals explained
that even though the trial court made the surrender a condition
of the defendant’s bond, it was a requirement imposed by stat-
ute on the court.
In this case, Nelson does not claim that the court’s condi-
tion suspending driving privileges while on bail was an abuse
of discretion, but instead argues that the sentence began
with his condition of bail. We disagree. Nelson’s driving
privileges were suspended simply as a condition of bond.
That period was not part of Nelson’s sentence to a 15-year
license revocation.
Nor can the language “from the date ordered by the court”
be construed to require that the 15-year period ran from the
time of the bail condition when, at that time, Nelson had not
yet been sentenced to a 15-year revocation period. Under the
plain language of § 39-669.07, for purposes of delimiting the
“period of fifteen years from the date ordered by the court,”
the “date ordered by the court” refers to the date the court
ordered the 15-year license revocation, and not from any date
19 8 C.J.S. Bail § 18 (2005). See, also, State v. Hernandez, 1 Neb. App. 830,
511 N.W.2d 535 (1993).
20 Id.
21 See, e.g., State v. Fraga, 189 S.W.3d 585 (Mo. App. 2006); In re
McSherry, 112 Cal. App. 4th 856, 5 Cal. Rptr. 3d 497 (2003); Matter of
Buckson v. Harris, 145 A.D.2d 883, 536 N.Y.S.2d 219 (1988); Cope v.
State, No. A-433, 1985 WL 1077807 (Alaska App. Jan. 16, 1985) (unpub-
lished opinion).
22 Wells v. State, 212 Ga. App. 15, 440 S.e.2d 692 (1994).
1006 	276N eBRASkAR ePoRTS

the court may have issued an order affecting the defendant’s
driving privileges.
In summary, we find no merit to the defendant’s argument
that his 15-year revocation period had expired by the time he
was pulled over in June 2007.
exceSSive Sentence
We next consider whether the district court’s sentence on the
charge of driving with a revoked license was excessive. Nelson
asserts that he should have been given probation rather than
jail time.
[7-12] An order denying probation and imposing a sentence
within the statutorily prescribed limits will not be disturbed
on appeal unless there has been an abuse of discretion.23 The
term “judicial abuse of discretion” means that the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying a just result in
matters submitted for disposition.24 When imposing a sentence,
a sentencing judge should consider the defendant’s (1) age,
(2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-
abiding conduct, and (6) motivation for the offense, as well
as (7) the nature of the offense, and (8) the violence involved
in the commission of the crime.25 In imposing a sentence, the
sentencing court is not limited to any mathematically applied
set of factors.26 The appropriateness of a sentence is necessar-
ily a subjective judgment and includes the sentencing judge’s
observation of the defendant’s demeanor and attitude and all
the facts and circumstances surrounding the defendant’s life.27
In considering a sentence of probation in lieu of incarceration,
23 See, State v. Crowdell, 241 Neb. 216, 487 N.W.2d 273 (1992); State v.
Beins, 235 Neb. 648, 456 N.W.2d 759 (1990).
24 See State v. Trackwell, 244 Neb. 925, 509 N.W.2d 638 (1994), disap-
proved on other grounds, State v. Koperski, 254 Neb. 624, 578 N.W.2d
837 (1998).
25 State v. Draganescu, ante p. 448, 755 N.W.2d 57 (2008).
26 State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).
27 Id.
STATe v.N eLSoN 	1007
Cite as 276 Neb. 997

the court should not withhold incarceration if a lesser sentence
would depreciate the seriousness of the offender’s crime or
promote disrespect for the law.28
In this case, the trial judge explained that 300 days’ impris-
onment was necessary for the protection of the public. The trial
judge also stated that a lesser sentence would depreciate the
seriousness of the crime committed. While it is true that most
of Nelson’s criminal record was developed prior to 1992 and
that he now alleges he is sober, his record of driving offenses
is extensive and includes a conviction for driving without a
license and driving with a suspended license. Although Nelson
alleges that he is now sober, the record reflects that at the time
of his arrest, there was marijuana found in the vehicle. Nelson
was not charged with possession of marijuana. We conclude
that the district court did not abuse its discretion in denying
probation, especially given the level of flexibility offered by
the court in serving the jail time imposed. Furthermore, we
note that while Nelson complains of the onerous nature of
another 15-year revocation, as we explained in State v. Hense,29
the 15-year revocation is a mandatory part of any sentence for
felony operation of a motor vehicle during a period of revoca-
tion, including a sentence of probation. Thus, the district court
had no discretion in this regard. We find no merit to Nelson’s
excessive sentence argument.
CoNCLUSIoN
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
28 See State v. Crowdell, supra note 23.
29 State v. Hense, supra note 3.
1008 	276N eBRASkAR ePoRTS