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Appellant here appealed from a district court judgment affirming a county court conviction and judgment for DUI, where he attacked the denial of his motion to suppress the stop. Appellant assertee that because Neb. Rev. Stat. § 60-6,219 (Reissue 2004) authorizes a vehicle to be equipped with “one or more” taillights, a vehicle having two taillights, one of which is unilluminated, nonetheless “shows red directly to the rear” and is in compliance with § 60-6,219. The Nebraska Court of Appeals ruled that the lower courts correctly rejected the argument, and affirmed.
State v. Burns, 16 Neb. App. 630 (2008)
Court of Appeals Headnotes
Statutes:
1. If the language of a statute is clear, the words of such statute are the end of any judicial inquiry.
2. Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. ••• Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
Courts:
1. Time: Appeal and Error. Where no timely statement of errors is filed in an appeal from a county court to a district court, appellate review is limited to plain error.
Criminal Law:
1. Statutes. It is a fundamental principle of statutory construction that penal statutes are to be strictly construed. ••• Although penal statutes are strictly construed, they are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.
Motor Vehicles.
1. Where a vehicle is equipped with two taillights, Neb. Rev. Stat. § 60-6,219(6) (Reissue 2004) requires both taillights to give substantially normal light output and to show red directly to the rear.
Date Filed and Case No.: February 12, 2008. No. A-07-762. This opinion has been ordered permanently published by order of the Court of Appeals dated April 4, 2008.
Court Appealed From: District Court for Sarpy County, William B. Zastera, Judge, on appeal thereto from the County Court for Sarpy County, Max Kelch, Judge.
Attorneys for the Appeal: James E. Schaefer for Steven V. Burns, appellant. Jon Bruning and George R. Love for State of Nebraska, appellee.
Judges: Inbody, Chief Judge, and Irwin and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: The State filed a complaint in county court charging Steven V. Burns with one count of driving under the influence of alcohol, .15 or over, and one count of vehicle light violation. Burns filed a motion to suppress and the only issue was whether the deputy sheriff had reasonable suspicion to stop the vehicle Burns was driving. The deputy stopped the vehicle after he observed that the vehicle displayed only one red light on the rear of the vehicle. The vehicle was equipped with two taillights, on the left and right, but the left taillight was not working. The deputy performed a traffic stop and detected the odor of an alcoholic beverage on Burns’ breath and the stop eventually led to a DUI arrest. The county court overruled the motion to suppress.
The State filed an amended complaint, dropping the “.15 or over” enhancement, and the matter was tried on stipulated evidence. The State dismissed the vehicle light violation, and the court found Burns guilty of driving under the influence. The county court sentenced Burns. He timely appealed to the district court, but filed no statement of errors. The district court for Sarpy County affirmed. Burns appealed to the Nebraska Court of Appeals.
Did the district court err in affirming the county court’s order overruling Burns’ motion to suppress? Burns argues that because § 60-6,219(3) allows a vehicle to be equipped with one taillight, a vehicle actually equipped with two taillights need only have one in operation. He argues that the provision of § 60-6,219(6)(b) requiring that “[e]ach taillight shows red directly to the rear” does not impose a requirement that both taillights be illuminated. We reject this strained interpretation.
Even viewed in isolation, the Court said the plain and unambiguous meaning of § 60-6,219(6)(b) that “[e]ach taillight shows red directly to the rear” clearly requires the light source to be illuminated. A taillight which is not operable cannot reasonably be understood to “show” red directly to the rear. Moreover, § 60-6,219(6)(a) requires “[t]he condition of the lights and electric circuit is such as to give substantially normal light output.” The Court wrote that in other words, the light must be illuminated in the normal fashion. While it is lawful to have a vehicle designed for only one taillight, Burns’ vehicle was equipped with two taillights. Where a vehicle is equipped with two taillights, the language of § 60-6,219(6) requires both taillights to “give substantially normal light output” and to “[show] red directly to the rear.” If one of the taillights is not illuminated, it fails to comply with both of these statutory requirements.
“It follows that Burns was committing a traffic violation, providing probable cause for the traffic stop.”
Conclusion: The Court said that the lower courts did not err in rejecting Burns’ incorrect statutory interpretation. “Therefore, we find no error, much less plain error, in the rulings of the courts below.” AFFIRMED.
Jurisdiction, Administrative Law, Appeal and Error
Although this case involved the administrative license revocation of a commercial driver’s license (CDL), “a topic on which there is a paucity of discussion by the Nebraska appellate courts” the Nebraska Court of Appeals ultimately determined that this case was resolved by a jurisdictional defect.
Yelli v. Neth, 16 Neb. App. 639 (2008)
Court of Appeals Headnotes
Administrative Law:
1. Motor Vehicles:
a. Licenses and Permits: Revocation. The holder of a commercial driver’s license is subject to administrative revocation for driving a commercial vehicle with a blood alcohol content of .04 or more.
i. Appeal and Error. Neb. Rev. Stat. § 60-4,167.02 (Reissue 2004) provides that any person aggrieved because of disqualification pursuant to a hearing under Neb. Rev. Stat. § 60-4,167 (Reissue 2004) may appeal to the district court of the county where the alleged violation occurred in accordance with the Administrative Procedure Act.
2. Final Orders: Time: Appeal and Error. Under the Administrative Procedure Act, judicial review shall be instituted by filing a petition in the district court of the county where the action is taken within 30 days after the service of the final decision by the agency.
Jurisdiction:
1. Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. ••• A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.
2. Counties: Appeal and Error. If the district court lacks appellate jurisdiction because an appeal is filed in the wrong county, such court lacks jurisdiction to transfer the case to the proper county.
Date Filed and Case No.: April 15, 2008. No. A-07-567.
Court Appealed From: District Court for Stanton County: Robert B. Ensz, Judge.
Attorneys for the Appeal: David W. Jorgensen for James L . Yelli, appellant. Jon Bruning and Milissa D. Johnson-Wiles for Beverly Neth, Director, State of Nebraska, Department of Motor Vehicles, appellee.
Judges: Severs, Carlson, and Moore, Judges.
Authored By: Severs, Judge.
Summary: On September 19, 2006, a Stanton County deputy sheriff made a traffic stop of James L. Yelli, who was then driving a 53-foot tractor-trailer suspecting that Yelli was driving under the influence. According to the deputy, the stop was made on U.S. Highway 275 on the Stanton County-Cuming County line after the deputy had seen the violation occur in Stanton County. Yelli testified that the encounter occurred in Cuming County. Yelli was ultimately arrested pursuant for DUI and testing registered .113 blood alcohol content.
At a hearing on Yelli’s petition objecting to revocation of his Commercial Drivers License (CDL) before the Department of Motor Vehicles, the revocation hearing officer concluded that the stop occurred at the Stanton County-Cuming County line for a violation occurring west of that location in Stanton County. The DMV adopted the hearing officer’s findings and revoked the Yelli was disqualified from driving a commercial motor vehicle for 1 year.
The DMV hearing occurred on November 29, 2006, in Stanton, Stanton County, Nebraska. The Director’s decision was dated December 6, 2006. On December 21, 2006, Yelli filed an appeal of the Director’s decision. While the appeal stated that “Venue is appropriate in the District Court of Stanton County, Nebraska because [Yelli] resides in [sic] events leading to [Yelli’s] arrest occurred in Stanton County, Nebraska,” the appeal was filed in the district court for Holt County, Nebraska. The Director filed an answer alleging that the Holt County District Court lacked subject matter jurisdiction, and Yelli filed a motion to transfer the matter from the district court for Holt County to the district court for Stanton County. The Holt County District Court granted the motion on March 12, 2007 and on May 15, the district court for Stanton County affirmed the order disqualifying Yelli from operating a commercial motor vehicle for 1 year. Yelli appealled to the Nebraska Court of Appeals.
Was Jurisdiction proper? The Court wrote that while they had alluded to the factual dispute between Yelli and the arresting deputy as to where the violation occurred and where the stop occurred in the opinion, it is clear that the disputed location is either Stanton or Cuming County “—both a long way from Holt County, where this appeal was filed.” Therefore, the jurisdictional issue did not involve a factual dispute.
As this administrative license revocation under § 60-4,167, which references the CDL of a person who is the subject of the officer’s sworn report. That statute, provides that any person aggrieved because of disqualification pursuant to a hearing “may appeal to the district court of the county where the alleged violation occurred in accordance with the Administrative Procedure Act.” Here, there is no dispute that the traffic violation and the arrest for driving while intoxicated did not occur in Holt County.
Turning to the Administrative Procedure Act, Neb. Rev. Stat. § 84-917, provides that a person aggrieved by a final decision in a contested case is entitled to judicial review which review “shall be instituted by filing a petition in the district court of the county where the action is taken within thirty days after the service of the final decision by the agency.” In Essman v. Nebraska Law Enforcement Training Ctr, 252 Neb. 347, 350, 562 N.W.2d 355, 357 (1997), the court said that where a district court has statutory authority to review an action of an administrative agency, the district court may acquire jurisdiction only if the review is sought “ ‘in the mode and manner and within the time provided by statute.’” Quoting McCorison v. City of Lincoln, 218 Neb. 827, 359 N.W.2d 775 (1984).
Thus, there is no question that the appeal had to be filed in Stanton County District Court under the Administrative Procedure Act, because that is where the hearing resulting in the disqualification of Yelli’s CDL occurred. Therefore, the filing in Holt County was a nullity, and that court never acquired jurisdiction and lacked jurisdiction to transfer the appeal to the Stanton County District Court. Yelli’s appeal could not be saved by a motion and order of transfer from the district court for Holt County, as that court never had jurisdiction and because § 84-917(2)(a) imposes a 30-day time limit in which to file an Administrative Procedure Act appeal the Stanton County District Court never acquired jurisdiction.
Conclusion: Because Yelli’s attempt to obtain judicial review of his administrative license revocation was filed in Holt County District Court, which lacked jurisdiction, such filing was a nullity, as was its order transferring such appeal to the Stanton County District Court, the court having jurisdiction over any such appeal. Since the Stanton County District Court never acquired jurisdiction, the Court of Appeals said it lacked jurisdiction. APPEAL DISMISSED.
For a prisoner’s 1997 sentencing (for which the “good time” calculations of a release date have since been amended) the Nebraska Court of Appeals here answers the question of when is the prisoner’s mandatory release date.
Worley v. Houston, 16 Neb. App. 634 (2008)
Court of Appeals Headnotes
Prisoners:
1. Sentences. Pursuant to Neb. Rev. Stat. § 83-1,107(2) (Cum. Supp. 1996), the chief executive officer of a facility shall reduce the term of a committed offender by 3 months for each year of the offender’s term and pro rata for any part thereof which is less than a year. ••• Pursuant to Neb. Rev. Stat. § 83-1,107(3) (Cum. Supp. 1996), the chief executive officer shall reduce the term of a committed offender up to an additional 3 months for each year of the offender’s term and pro rata for any part thereof which is less than a year upon participation in or completion of a personal program. ••• Pursuant to Neb. Rev. Stat. § 83-1,107 (Cum. Supp. 1996), the total of all the reductions of the term of a committed offender shall be credited from the date of sentence, which shall include any term of confinement prior to sentence and commitment as provided pursuant to Neb. Rev. Stat. § 83-1,106 (Reissue 1999), and shall be deducted from the maximum term, to determine the date when discharge from the custody of the state becomes mandatory. ••• Pursuant to Neb. Rev. Stat. § 83-1,107(2) (Cum. Supp. 1996), good time is credited at the time of a prisoner’s sentence and is based on the prisoner’s maximum term. ••• Neb. Rev. Stat. § 83-1,107(3) (Cum. Supp. 1996) requires that a prisoner be credited with good time for participation in a personal program at the beginning of his sentence, based on the maximum sentence at that time, at the rate of 3 months per year, and such is to be deducted from his maximum term in order to determine his mandatory discharge date in addition to the 3 months per year of his maximum term for good time under § 83-1,107(2).
Summary Judgment.
1. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
Statutes:
1. Appeal and Error. Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.
Date Filed and Case No.: April 15, 2008. No. A-07-151.
Court Appealed From: District Court for Lancaster County: Jeffre Cheuvront, Judge.
Attorneys for the Appeal: Kate M. Jorgensen and, on brief, Andrew D. Weeks for Terry L. Worley, appellant. Jon Bruning and Linda L. Willard for Robert P. Houston, Director of the Department of Correctional Services , and Ronald Reithmuller, Records Administrator, appellees.
Judges: Severs, JVIoore, and Cassel, Judges.
Authored By: Severs, Judge.
Summary: On November 4, 1997, Terry L. Worley was sentenced to a term of imprisonment of 20 to 25 years, with credit for 159 days served. Worley’s sentencing was under a version of Neb. Rev. Stat. § 83-1,107 in which the Nebraska Legislature had amended a “good time” law via 1995 Neb. Laws, L.B. 371. Prior to the amendment, a person automatically received 6 months of good time credited against his sentence for every year of his prison term and that good time was credited at the time of sentencing. However, under L.B. 371 :
(2) The chief executive officer of a facility shall reduce the term of a committed offender by three months for each year of the offender’s term and pro rata for any part thereof which is less than a year.
(3) The chief executive officer shall reduce the term of a committed offender up to an additional three months for each year of the offender’s term and pro rata for any part thereof which is less than a year upon [participation in or completion of a personal program.]
The total of all the reductions shall be credited from the date of sentence, which shall include any term of confinement prior to sentence and commitment as provided pursuant to section 83-1,106, and shall be deducted from the maximum term, to determine the date when discharge from the custody of the state becomes mandatory.
§ 83-1,107 (Cum. Supp. 1996) (emphasis supplied).
In the case at bar, appellees calculated Worley’s prison term and informed Worley that his mandatory discharge date was based on a period of 15 years minus the credit for time served, which would make his release date May 24, 2012. This calculation assumed that good time under § 83-1,107(3) for participation in or completion of a personal program was to be credited year by year after successful completion of a personal program—as opposed to being credited at the beginning of the sentence based on the prisoner’s maximum sentence in the same manner as good time under § 83-1,107—and then being added back to the sentence for any year in which the inmate did not complete a personal program.
Worley filed a petition for declaratory judgment alleging that his mandatory discharge date had been miscalculated. On cross-motions for summary judgment, the district court, while noting that § 83-1,107 was ambiguous, entered an order in favor of Appellees. Worley appealed to the Nebraska Court of Appeals.
What is Worley’s discharge date? The Court said that this is a case of first impression but also of limited impression because of later legislative amendments to the statutes dealing with an inmate’s good time credit. Since Worley was sentenced, the Nebraska Legislature has again amended § 83-1,107, so the version of the statute at issue in this case is no longer in effect.
Neither party contested that the 3 months of good time per year of the inmate’s sentence pursuant to § 83-1,107(2) is to be credited to a prisoner at the beginning of his sentence. However, the parties disagree as to how good time is credited under § 83-1,107(3); Worley, that good time is to be credited at the beginning of a prisoner’s sentence and is to be based on the prisoner’s maximum term. Appellees, that good time is calculated based on the actual number of years a prisoner could complete in prison (a number smaller than his maximum term because of the good time that is credited to him.) The Court noted that the practical difference in these interpretations is that under Appellees’ interpretation, a prisoner cannot accumulate as much good time as under Worley’s interpretation and serves a longer sentence. In Worley’s case, the difference is 30 months.
Reviewing the use of the word “term” in§ 83-1,107(2) and § 83-1,107(3) the Court pointed out that both sections base the amount of good time to be credited to a prisoner on the prisoner’s “term.” As it was uncontested that “term” in § 83-1,107(2) refers to the prisoner’s maximum term, the word “term” in § 83-1,107(3) must also refer to the prisoner’s maximum term. Further, the language from § 83-1,107 which causes good time under § 83-1,107(2) to be applied at the beginning of a prisoner’s sentence, “[t]he total of all the reductions shall be credited from the date of sentence . . .” (emphasis supplied), does not distinguish in any way between the good time given under § 83-1,107(2) and that given under § 83-1,107(3). “And of course,” said the Court “the use of the language ‘all the reductions’ again, rather pointedly in our view, evidences a legislative intent that both types of good time be applied and credited from the outset of the sentence, as stated in the statute.” Then, if any of the good time is not “earned” under § 83-1,107(3), those periods are added back to the inmate’s sentence.
Therefore, the Court interpreted § 83-1,107(3) to require that a prisoner be credited with good time for participation in a personal program at the beginning of his sentence, based on the maximum sentence at that time, at the rate of 3 months per year, and such is to be deducted from his maximum term in order to determine his mandatory discharge date in addition to the 3 months per year of his maximum term for good time under § 83-1,107(2). “Our conclusion” they said “is based on the plain reading of the words used is the statute, because, despite the disagreement of the parties about the meaning of the statute, we find that it is not ambiguous.”
Accordingly, since Worley’s maximum sentence is 25 years, by crediting him with 6 months of good time per year of such term, plus 159 days for time served, the Court found that Worley’s mandatory discharge date is 12 years 6 months from the date on which he was sentenced, November 4, 1997 (November 26, 2009.) “Of course,” they added “the mandatory discharge date so determined is only a tentative date, because a prisoner might fail to perform the requirements of the prisoner’s personal program or be subject to losing good time for disciplinary reasons.”
Conclusion: Fort those reasons, the Court reversed the district court’s order sustaining Appellees’ motion for summary judgment and overruling Worley’s motion for summary judgment. Worley’s motion for summary judgment is hereby sustained, and his mandatory discharge date from prison is November 26, 2009. REVERSED.
NCLE Teleseminar: Things Secured Parties Should Know, Do and Avoid When Foreclosing on Collateral, Part 1