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State v. Tesch1/14/2003
(Not Designated for Permanent Publication)
I. INTRODUCTION
Alfred E. Tesch pled guilty to driving under the influence of alcohol (DUI) and was sentenced by the Sarpy County Court to 30 days in jail. On appeal, the Sarpy County District Court held that the 30-day sentence was excessive and modified the sentence to 7 days in jail. The State subsequently filed an application for leave to docket error proceedings with this court, pursuant to Neb. Rev. Stat. § 29-2315.01 (Reissue 1995). We granted the application, and this appeal ensued. We find that the district court erred in modifying the county court's sentence, and the State's exception is sustained. Because the State brought this appeal as an error proceeding, rather than as a direct appeal alleging an excessively lenient sentence pursuant to Neb. Rev. Stat. § 29-2320 (Reissue 1995), however, the sustaining of the exception will not affect the judgment in the instant case.
II. BACKGROUND
On May 21, 2001, Tesch was charged by criminal complaint with DUI. On June 20, a plea of not guilty was entered. On November 15, Tesch appeared before the county court and entered a plea of guilty.
The State presented a factual basis indicating that on or about May 16, 2001, Tesch was operating a motor vehicle while intoxicated, that he performed a field sobriety test, and that he was then taken to the law enforcement center and given a breath test. The State indicated that "he tested a .277," and Tesch indicated to the court that he "was under the impression that had blown 225."
The court accepted Tesch's plea of guilty. Tesch's attorney indicated to the court that Tesch was from New York State, that he was in Nebraska for his employment installing software programs at the time of the incident, and that he spends "four to five, even up to eleven months" at various places he is sent for his employment. Tesch's attorney also provided the court with information concerning Tesch's family in New York. Tesch's attorney requested a sentence of probation to be coordinated with the probation office in New York.
The State indicated that Tesch had two prior convictions from New York for alcohol-related driving offenses. The State further indicated that at least one of the prior offenses involved a property damage accident as a result of Tesch's impairment. The State elected not to pursue enhancement of the current offense beyond first-offense DUI because of possible problems demonstrating Tesch's representation by counsel on the prior offenses.
The court pronounced the following sentence:
I'm not going to put him on probation. It's a $400 fine, a 6 month license revocation, 30 days in jail, credit for 2 days served. You're remanded to the custody of the sheriff to do your time.
On November 16, 2001, Tesch filed an appeal of the sentence to the district court. On January 11, 2002, the district court made the following findings:
I have reviewed the transcript and the matter. It appears that he did have two convictions in 1990, so it's not without a previous record. He did spend some time in jail. It was up to the lower court to decide whether probation was appropriate or incarceration. That's the call they make there and he didn't choose probation. I can't fault him for that. The only thing I can say is that the sentence was excessive as far as time in jail. In view of the fact that he's a nonresident, has a family, and is working here only by the fact that his job takes him here, I'm only approving up to seven days of the sentence, and the fact that he's pretty much spent that, we probably won't see him back here.
The court
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