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State v. Trampe9/2/2003
ption of the admission of his blood alcohol test results.
On December 11, 2002, the State filed a motion for remand to properly prepare the record to include both exhibits 14, to which motion Trampe objected. On January 7, 2003, a second bill of exceptions was filed with this court and contained the exhibit 14 received at Trampe's sentencing hearing, but there is no indication that this bill of exceptions was ever filed with the district court prior to its being filed with this court. On February 9, this court denied the State's motion for remand, indicating that this court reviews only the record presented to the district court when the latter sits as an intermediate court of appeals and that thus, this court cannot change the record presented to the district court.
It is clear that the district court did not have the exhibit 14 relating to Trampe's prior conviction before it when it reviewed Trampe's current conviction and sentence. It is also clear that Trampe raised the admission of this exhibit and the enhancement of his sentence in the county court as errors before the district court. The bill of exceptions from the district court appeal merely shows the offer and receipt of the bill of exceptions from the county court, which bill of exceptions does not contain the exhibit 14 relating to Trampe's prior conviction. Counsel for both parties presented argument to the district court; however, the argument was not recorded by the court reporter. Thus, there is no basis in the record for the district court's conclusion that Trampe abandoned these assigned errors in his appeal to the district court. It is clear that the district court did not consider the issues relating to the enhancement of Trampe's conviction, because had it done so, it would have discovered that the record did not contain the exhibit 14 relating to Trampe's prior conviction.
[2,3] In our appellate review of a matter appealed from a county court to a district court, we can consider only such evidence as was presented to the district court in its intermediate review of the county court judgment. See State v. Cardona, 10 Neb. App. 815, 639 N.W.2d 653 (2002) (both district court and higher appellate court generally review appeals from county court for error appearing on record). Because the district court did not address the merits of the issues relating to the enhancement of Trampe's sentence and because the existing record is insufficient to review these issues, we must reverse the judgment of the district court which affirmed Trampe's sentence, and on remand, we direct the district court to consider Trampe's assignments of error relating to the enhancement of his sentence, basing its review upon the record presented to it on rehearing. See, generally, 5 C.J.S. Appeal and Error § 839 (1993).
VI. CONCLUSION
We conclude that the county court did not err in receiving the test results of Trampe's blood alcohol level, and his conviction for DUI is affirmed. With regard to the enhancement of Trampe's sentence, we reverse the judgment of the district court and remand the cause for further proceedings as specified above.
Affirmed in part, and in part reversed and remanded for further proceedings.
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