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State v. Rice4/28/2005
Melvin J. Rice entered a guilty plea to a reduced charge of driving during revocation, a Class IV felony. After receiving a standard presentence investigation report and referring Rice to the Department of Correctional Services Diagnostic and Evaluation Center for additional evaluation, the district court for Dakota County sentenced Rice to probation for a term of 36 months under specified terms and conditions. The State of Nebraska, through the Dakota County Attorney, appealed the sentence as excessively lenient, and the Nebraska Court of Appeals affirmed. State v. Rice, No. A-04-547, 2004 WL 2937184 (Neb. App. Dec. 21, 2004) (not designated for permanent publication). We granted the State's petition for further review and now conclude that the sentence was excessively lenient. We therefore vacate Rice's sentence and remand the cause with directions for resentencing by a different judge.
BACKGROUND
The following summary of the pertinent facts is taken nearly verbatim from the unpublished opinion of the Court of Appeals. At approximately 10:30 a.m. on August 11, 2003, Rice was stopped by a deputy sheriff of Dakota County, after a citizen complaint of Rice's erratic driving. Rice was found to have an open container of whiskey in the vehicle, was too drunk to perform the usual field sobriety tests, and could hardly stand. Rice's blood alcohol level was .307. The deputy checked Rice's driver's history and found that his driving privileges were revoked for 15 years after a conviction on February 19, 2002, for third-offense driving under the influence . Through a plea agreement, the original charge from the August 11, 2003, arrest, a Class III felony, was amended to driving during revocation, a Class IV felony, to which Rice pled guilty.
Previous Convictions
Rice's record shows the following pertinent convictions:
July 1972--convicted of drunk driving in California (placed on probation for 3 years);
July 1977--convicted of driving under the influence in Nevada;
September 1977--convicted of drunk driving in California;
May 1984--convicted of driving under the influence in Thurston County, Nebraska (sentenced to 7 days in jail with a license revocation for 6 months);
July 1984--convicted twice of driving under the influence in Dakota County, Nebraska (fined and placed on probation, from which he was ultimately unsuccessfully released);
November 1984--convicted in Dakota County of driving under the influence , third offense, as well as driving under suspension;
April 1990--convicted of driving during suspension, second offense, in Dakota County;
May 1990--convicted of driving under the influence , third offense, in Dakota County, but charges for driving under suspension and driving left of center were dismissed (sentenced to 3 months in jail, $500 fine, and 15-year loss of driving privileges);
April 1992--convicted of driving under suspension, third offense, in Dakota County (sentenced to a 90-day jail sentence, $250 fine, and 2-year license suspension);
May 1996--convicted in Douglas County, Nebraska, of driving under the influence , second offense, as well as driving under suspension (sentenced to 90 days in jail, $500 fine, and 1-year license suspension for driving under the influence, plus 24 months of intensive supervision probation for driving under suspension--from which probation he was unsatisfactorily released in November 1997);
November 1997--convicted in Dakota County of driving under suspension after driving under the influence, third offense, but a driving under the influence charge was dismissed (senten
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