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State v. Kubin1/25/2002
n ordered a presentence investigation. After receiving the assessment recommendations and the cost estimates for the treatment plan, the county court resentenced Kubin as before.
Kubin again appealed to the district court. He argued that the county court erred in failing to sustain his motion to quash, and he renewed the constitutional arguments made in that motion. The district court affirmed the judgment.
ASSIGNMENTS OF ERROR
Kubin assigns that both the county court and the district court erred in failing to find that § 60-6,196(8) violates article I, §§ 9 and 15, of the Nebraska Constitution.
STANDARD OF REVIEW
Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court. State v. Hansen, 258 Neb. 752, 605 N.W.2d 461 (2000).
In reviewing decisions of the district court which affirmed, reversed, or modified decisions of the county court, a higher appellate court will consider only those errors specifically assigned in the appeal to the district court and again assigned as error in the appeal to the higher appellate court. State v. Feiling, 255 Neb. 427, 585 N.W.2d 456 (1998).
ANALYSIS
Kubin contends that § 60-6,196(8) is facially unconstitutional because it gives a court unlimited discretion to impose, or not impose, the costs for a rehabilitative treatment program which constitutes an excessive monetary penalty. The State, however, correctly contends that Kubin's constitutional arguments on appeal are procedurally barred because Kubin's motion to quash was not filed until the day after the court entered a plea of not guilty on his behalf, and, therefore, he has waived any defects alleged in the motion.
Once a defendant has entered a plea, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash. See, Neb. Rev. Stat. § 29-1812 (Reissue 1995); State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999). Further, " his statute has long been interpreted to include the situation where a plea is entered for the defendant by the court." State v. Severin, 250 Neb. 841, 846, 553 N.W.2d 452, 456 (1996). Because Kubin failed to withdraw the plea entered by the court, we conclude that he waived his right to facially challenge the statute.
Affirmed.
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