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State v. Nelson12/7/2001
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in reviewing a criminal conviction, does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
2. Circumstantial Evidence. Circumstantial evidence is not inherently less probative than direct evidence.
3. Appeal and Error. Plain error may be asserted for the first time on appeal or be noted by the appellate court on its own motion.
4. Sentences: Prior Convictions: Records: Right to Counsel: Waiver: Proof. In a proceeding for an enhanced penalty, the State has the burden to show that the records of a defendant's prior felony convictions, based on pleas of guilty, affirmatively demonstrate that the defendant was represented by counsel, or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right.
5. Sentences: Prior Convictions: Waiver: Proof: Appeal and Error. In the absence of proof on the record that the prior convictions were obtained at a time when the defendant was represented by counsel or had knowingly waived such right, it is plain error for a court to use a defendant's prior convictions to enhance the defendant's sentence.
6. Appeal and Error. Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
7. Habitual Criminals: Sentences: Double Jeopardy. Double jeopardy principles do not apply to habitual criminal enhancement proceedings under Neb. Rev. Stat. § 29-2221 (Reissue 1995).
8. Constitutional Law: Double Jeopardy. The protection provided by Nebraska's double jeopardy clause in coextensive with that provided by the U.S. Constitution.
Appeal from the District Court for Douglas County: Gary B. Randall, Judge. Sentence vacated, and cause remanded for resentencing.
NATURE OF CASE
Richard Nelson was convicted in the district court for Douglas County of unlawful possession with intent to deliver a controlled substance. Nelson was found to be a habitual criminal and was sentenced to imprisonment for a term of 10 to 15 years. Nelson appeals his conviction and his sentencing as a habitual criminal. We affirm the conviction but vacate the sentence and remand the cause for resentencing.
STATEMENT OF FACTS
Following a bench trial held November 18, 1997, Nelson was found guilty of possession with intent to deliver a controlled substance, cocaine. At trial, Omaha police officer David Turco testified that he was on patrol in a cruiser on January 9, 1997, with his partner, Officer Shawn LeClair, in the vicinity of 33d and Parker Streets in Omaha. Turco had turned the cruiser onto Parker Street heading eastbound when he observed a blue Buick Electra in the eastbound lane of Parker Street parked facing westbound. The Buick pulled away from the curb heading westbound which required Turco to stop the cruiser in order to avoid a collision. After stopping the cruiser, Turco maneuvered around the Buick, which then proceeded westward and turned south on 33d Street. Turco made a U-turn, proceeded south on 33d Street, a
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