State v. Petersen12/7/2004
On October 1, 2002, Petersen was convicted of driving under the influence, second offense. Consequently, Petersen's operator's license was revoked for a period of 1 year. On June 1, 2003, Petersen violated the revocation order by operating a motor vehicle. On September 18, a jury found Petersen guilty of operating a motor vehicle during a period of revocation or impoundment.
Prior to sentencing, on October 2, 2003, Petersen applied for and was granted a reinstatement of his operator's license. Petersen was sentenced on October 8 for his September 18 conviction for operating a motor vehicle during a period of revocation or impoundment. At his sentencing hearing, Petersen argued that because his operator's license had been reinstated prior to sentencing, Neb. Rev. Stat. § 60-4,108(2) (Cum. Supp. 2002) provided that the maximum sentence which could be imposed on Petersen was a $100 fine. The county court disagreed, however, and sentenced Petersen under § 60-4,108(1) to 30 days' imprisonment, ordered Petersen to pay court costs of $248.45, and revoked Petersen's operator's license for a period of 1 year.
Petersen appealed his sentence to the district court, arguing that the county court imposed an excessive sentence. Specifically, Petersen argued that the county court sentenced him improperly, under § 60-4,108(1) rather than § 60-4,108(2). The district court found that the offense defined in § 60-4,108(2) constitutes an entirely separate offense from the offense set forth in § 60-4,108(1) and that the jury found Petersen guilty under § 60-4,108(1). Accordingly, the district court determined that a sentence under § 60-4,108(1) was proper and affirmed the county court's sentence because it was well within the statutory provisions of § 60-4,108(1). This appeal now follows.
III. ASSIGNMENT OF ERROR
Petersen's only assignment of error on appeal is that the district court erred in affirming the sentence imposed by the county court, because the sentence was excessive.
IV. ANALYSIS
1. Standard of Review
Interpretation of a statute presents a question of law, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001); State v. Spurgin, 261 Neb. 427, 623 N.W.2d 644 (2001); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004); State v. Segura, 265 Neb. 903, 660 N.W.2d 512 (2003).
2. Excessive Sentence
Petersen does not dispute his conviction for operating a motor vehicle during a period of revocation. Rather, Petersen argues that the county court sentenced him under the wrong subsection of § 60-4,108, resulting in a sentence in excess of the statutory limits, and that the court thus abused its discretion.
Section 60-4,108 provides:
(1) It shall be unlawful for any person to operate a motor vehicle during any period that he or she is subject to a court order not to operate any motor vehicle for any purpose or during any period that his or her operator's license has been revoked or impounded pursuant to conviction or convictions for violation of any law or laws of this state, by an order of any court, or by an administrative order of the director. Except as otherwise provided by law, any person so offending shall (a) for a first such offense, be guilty of a Class II misdemeanor, and the court shall, as a part of the judgment of conviction, order such person not to o
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