State v. Loyd

S tAte of N ebrASkA, Appellee , v .
miChAel W. loyd , AppellANt .
745 N.W.2d 338
Filed March 7, 2008. 	No. s-06-1113.
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. Statutes. In the absence of anything to the contrary, statutory language is to be
given its plain and ordinary meaning.
appeal from the District Court for Douglas County, J ohN d.
hArtigAN, J r ., Judge, on appeal thereto from the County Court
for Douglas County, thomAS g. mCQ uAde, Judge. Judgment of
District Court affirmed.
David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
p.C., for appellant.
Jon bruning, attorney General, and James D. smith for
appellee.
heAviCAN, 	C.J., 	W right , 	C oNNolly , 	gerrArd , 	S tephAN,
mCC ormACk , and miller -lermAN, JJ.
mCC ormACk , J.
Nature oF Case
Michael W. Loyd appeals from the county court’s denial
of his motion for absolute discharge on statute of limitations
grounds. Loyd asserts the complaint filed against him was not
filed within the 18-month statute of limitations set forth in Neb.
rev. stat. § 29-110(1) (reissue 1995). the county court denied
Loyd’s motion, and the district court affirmed.
baCkGrouND
on June 18, 2001, Loyd was arrested and cited for driving
under the influence of alcoholic liquor (DuI). on June 29,
Loyd was charged in county court with second-offense DuI
under omaha Mun. Code, ch. 36, art. III, § 36-115 (1998).
Loyd moved to quash the complaint, arguing that the penalty
provisions of the ordinance are inconsistent with Neb. rev. stat.
§ 60-6,196 (Cum. supp. 2000). on august 16, 2001, the county
state v. LoYD 	205
Cite as 275 Neb. 205
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

206 	275 Nebraska reports
court granted Loyd’s motion to quash. the state filed an excep-
tion, and on January 24, 2003, we issued an opinion wherein
we agreed that the provisions were inconsistent and overruled
the state’s exception.1
on March 18, 2003, Loyd was charged by complaint in
the county court with second offense DuI in violation of
§ 60-6,196(2). Loyd filed a motion for absolute discharge,
asserting that the complaint had not been filed within the
18-month statute of limitations set forth in § 29-110(1). Loyd
also filed a supplemental motion to discharge based upon his
federal and state constitutional rights to a speedy trial. on
May 22, the county court denied Loyd’s motion to discharge,
and on December 4, the court denied Loyd’s supplemental
motion to discharge. Loyd appealed to the district court from
both orders. the district court found no violation of Loyd’s
rights to a speedy trial, and, without discussing Loyd’s statute
of limitations argument, the district court affirmed the deci-
sion of the county court. Loyd then appealed to this court, and
we affirmed.2
In State v. Loyd,3 we pointed out that a motion to discharge
is generally not the means by which a statute of limitations
defense is raised in a criminal proceeding. We determined,
however, that Loyd’s motion to discharge was in substance a
motion to quash, and we treated it as such. We further deter-
mined, however, that an order overruling a motion to quash
raising a statute of limitations defense is not a final, appealable
order. In addition, although the county court’s order overrul-
ing Loyd’s supplemental motion to discharge on speedy trial
grounds was a final, appealable order, we determined it did
not confer jurisdiction upon the supreme Court to consider
Loyd’s statute of limitations arguments. accordingly, we did
not address those arguments. With regard to Loyd’s speedy trial
argument, we determined that because the delay relied upon
by Loyd for his speedy trial argument occurred before he was
1 see State v. Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003).
2 see State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
3 Id.

charged, Loyd’s constitutional right to a speedy trial had not
been implicated and that, therefore, his speedy trial argument
was without merit.
thereafter, Loyd was tried in the county court. on august
4, 2005, Loyd was found guilty of second-offense DuI. Loyd
appealed to the district court the county court’s finding that he
was guilty of second-offense DuI and the county court’s May
22, 2003, denial of his motion for absolute discharge. Loyd
alleged that the March 18, 2003, complaint should have been
dismissed because it was not filed within 18 months after the
alleged criminal act took place. the district court affirmed the
decision of the county court. Loyd now appeals to this court.
assIGNMeNt oF error
Loyd asserts that the district court erred in failing to find that
the March 18, 2003, complaint should be dismissed because
it was not filed within 18 months after Loyd committed the
alleged criminal act.
staNDarD oF reVIeW
[1] statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below.4
aNaLYsIs
the question before us in the present appeal is whether
the March 18, 2003, complaint was timely filed. at the time,
§ 29-110(1) provided that no person shall “be prosecuted,
tried, or punished for any misdemeanor or other indictable
offense below the grade of felony . . . unless the indictment,
information, or action for the same shall be found or instituted
within one year and six months from the time of committing
the offense.” section 29-110(1) further provided, however, that
“[i]f any indictment, information, or suit is quashed . . . the
time during the pendency of such indictment, information, or
suit so quashed . . . shall not be reckoned within this statute
4 State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).
state v. LoYD 	207
Cite as 275 Neb. 205

208 	275 Nebraska reports
so as to bar any new indictment, information, or suit for the
same offense.”
Loyd was arrested for DuI on June 18, 2001. based on that
incident, a complaint was filed on June 29, charging Loyd with
a violation of omaha Mun. Code, ch. 36, art. III, § 36-115.
that complaint was quashed by order of the county court on
august 16, and, on appeal, we overruled the state’s exception
to the court’s order.5 the state then filed the March 18, 2003,
complaint. this complaint is also based on Loyd’s June 18,
2001, arrest, but charges Loyd with violation of § 60-6,196(2).
because this complaint was filed more than 18 months after
Loyd’s June 18 arrest, it is untimely unless the tolling provision
under § 29-110(1) applied.
In order for the tolling provision under § 29-110(1) to apply,
the subsequent indictment, information, or suit must charge the
“same offense” as the prior indictment, information, or suit.
the applicability of § 29-110(1) in the present case depends in
part on whether “offense” constitutes the conduct of the defen-
dant or the charge itself. We have not previously considered the
definition of “offense” for purposes of § 29-110, and it has not
been defined by the Legislature in this context.
[2] In the absence of anything to the contrary, statutory lan-
guage is to be given its plain and ordinary meaning.6 In State v.
Stabler,7 a defendant was first convicted of refusing to submit
to a chemical test and was then convicted of DuI based on
the same conduct. the defendant appealed, arguing that the
Double Jeopardy Clause barred his subsequent DuI conviction.
this court affirmed the defendant’s convictions, concluding the
convictions did not constitute the same offense because they
required different elements of proof. We explained that “[i]n
determining whether two charges constitute the same offense,
the test to be applied is whether each charge requires proof of
different facts.”8 We further explained that
5 see Loyd, supra note 1.
6 State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004).
7 State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981).
8 Id. at 300, 306 N.W.2d at 926.

“a distinction exists between an offense and the unlawful
act out of which it arises, it being possible that two or more
distinct offenses may grow out of the same transaction or
act; and the rule that a person cannot be twice put in jeop-
ardy for the same offense has no application where two
separate and distinct crimes are committed by one and the
same act, because the constitutional inhibition is directed
to the identity of the offense and not to the act. . . .”9
a review of §§ 36-115 and 60-6,196 reveals that they create
the same offense. at the time of Loyd’s citation, a DuI convic-
tion under § 36-115 required proof that the defendant operated
or was in actual physical control of a motor vehicle while (1)
under the influence of alcoholic liquor or any drug, (2) having
a concentration of .10 of 1 gram or more by weight of alcohol
per 100 milliliters of blood, or (3) having a concentration of
.10 of 1 gram or more by weight of alcohol per 210 liters of
breath. these were the same elements of the crime of DuI
under § 60-6,196. accordingly, we conclude that the March 18,
2003, complaint filed against Loyd charging him with violating
§ 60-6,196 charged the same offense as the June 29, 2001, com-
plaint filed against him asserting a violation of § 36-115.
Having determined that §§ 36-115 and 60-6,196 charged the
same offense, we now turn to Loyd’s argument on appeal. Loyd
asserts that “pendency” under § 29-110 includes only that time
the complaint was before the county court, or from June 29
through august 16, 2001, a total of 48 days. He maintains that
“pendency” does not include the time period in which the state
appealed to the district court and to this court the county court’s
order granting Loyd’s motion to quash. as pointed out by the
district court, under Loyd’s logic, the statute of limitations to
file a complaint against Loyd was extended from December
18, 2002, by 48 days, or until February 4, 2003. the district
court actually states “February 3, 2003.” However, counting 48
days forward from December 18, 2002, results in February 4,
2003. because the second complaint was not filed until March
18, 2003, Loyd argues the complaint is barred by the statute
of limitations.
9 Id. at 301, 306 N.W.2d at 926.
state v. LoYD 	209
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210 	275 Nebraska reports
In the context of a condemnation case, we have analyzed the
word “pending.” We have stated that when an appeal is taken
from the district court to the supreme Court, “pending” means
the time period from the lawsuit’s inception until the final judg-
ment.10 In Pieper v. City of Scottsbluff,11 we discussed in part
Neb. rev. stat. § 76-720 (Cum. supp. 1963), which addresses
appeals by a condemnee from an award of an appraiser in an
eminent domain action. In 1963, Neb. rev. stat. § 76-720.01
(Cum. supp. 1963) was added and reads that “[t]he provisions
of section 76-720 shall apply to any case now or hereafter
pending an appeal from the award of the appraisers as provided
in section 76-710.” on appeal, the City of scottsbluff argued
that the amendments to § 76-710 applied only to an appeal
from the award of an appraiser made in the county court to the
district court and not when an appeal is taken from the district
court to the Nebraska supreme Court. rejecting the city’s argu-
ment, this court explained:
the word “pending” means: “begun, but not yet com-
pleted; unsettled; undetermined; in process of settlement
or adjustment. thus, an action or suit is ‘pending’ from
its inception until the rendition of final judgment.” black’s
Law Dictionary (3d ed.), p. 1345. see, also, Wentworth
v. town of Farmington, 48 N.H. 207 [(1868)]; Mauney v.
pemberton, 75 N.C. 219 [(1876)]; ex parte Munford, 57
Mo. 603 [(1874)]; Cain v. French, 29 Cal. app. 725, 156
p. 518 [(1916)]. therefore, the act applies when an appeal
is taken from the district court to this court.12
We conclude that Loyd’s case remained pending while on
appeal to the district court and this court. the statute of limita-
tions under § 29-110(1) was tolled during that period, and the
March 18, 2003, complaint was timely filed.
CoNCLusIoN
For the reasons discussed above, we affirm.
A ffirmed .
10 see Pieper v. City of Scottsbluff, 176 Neb. 561, 126 N.W.2d 865 (1964).
11 Id.
12 Id. at 588-89, 126 N.W.2d at 880.