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State v. King3/9/2004
(not designated for permanent publication)
INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. of Prac. 11B(1) (rev. 2000), this case was ordered submitted without oral argument. Daniel R. King appeals from an order of the district court for Douglas County affirming the county court's order convicting King of first-offense driving under the influence (DUI), driving while his license was revoked, and careless driving. On appeal, King contends that the district court erred when it failed to find that the county court had abused its discretion in sentencing him. After reviewing the record, we affirm.
BACKGROUND
On October 19, 2002, an Omaha police officer noticed a motor vehicle speeding. That vehicle ultimately stopped in a parking lot near 90th and Fort Streets in Omaha. At that time, the officer contacted the driver, whom the officer learned to be King, and noticed an odor of alcohol on King's breath. The officer then placed King under arrest and transported him to the Omaha Police Department. Subsequently, an Intoxilyzer showed that King's breath alcohol content was over the legal limit. The record shows that 5 weeks prior, King had been charged with DUI in Sarpy County and had received a temporary operator's license. By operation of law, King's operator's license was revoked on October 13.
After his arrest, the State charged King with DUI under Omaha Mun. Code, ch. 36, art. III, § 36-115 (2001); driving during revocation pursuant to Neb. Rev. Stat. § 60-4,108 (Cum. Supp. 2002); and careless driving under Neb. Rev. Stat. § 60-6,212 (Reissue 1998). King subsequently pled guilty to all three charges.
The county court sentenced King to 60 days in jail and assessed King a $400 fine on the DUI charge, sentenced King to 6 months in jail on the charge of driving during revocation, and assessed King a $100 fine for careless driving. The court also revoked King's operator's license for 1 year for driving with a revoked license. The county court ordered that King's jail terms run concurrently.
King appealed to the district court, which affirmed the county court's order in its entirety. King appeals.
ASSIGNMENT OF ERROR
King's sole assignment of error on appeal is that the district court erred when it failed to find that the county court had abused its discretion in sentencing him.
ANALYSIS
On appeal, King contends that the sentences imposed upon him by the county court for first-offense DUI, driving during revocation, and careless driving were excessive and that the district court erred in not reducing his sentences. On the first-offense DUI charge, the county court sentenced King to 60 days in jail and ordered King to pay a $400 fine. Here, the ordinance used to charge King with DUI does not appear in either the transcript or the bill of exceptions. However, the transcript certified by the clerk of the county court does include a copy of the long-form complaint containing the charges against King.
Thus, in the absence of any showing to the contrary, we assume that the penalties set out in the State's complaint reflect the penalties set out in the ordinance which King was charged with violating. See State v. Hill, 254 Neb. 460, 577 N.W.2d 259 (1998). Therefore, we review those penalties in order to determine whether King's sentence for DUI under § 36-115 of the Omaha Municipal Code was excessive. Given that King's sentence was well within the penalties set out by the ordinance--a $500 fine, 7 to 60 days in jail, and a 6-month license suspension--we do not find that the county court abused its discretion in sentencing King for first-offense DUI.<
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