Opinion
No. S–12–533.
2013-03-29
STATE of Nebraska, appellee, v. Joe J. POLICKY, appellant.
Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott, for appellant. Jon Bruning, Attorney General, and George R. Love, Lincoln, for appellee.
Syllabus by the Court
1. Judgments: Appeal and Error. On questions of law, an appellate court has an obligation to reach independent conclusions irrespective of the decision made by the court below.
2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
3. Motor Vehicles: Licenses and Permits: Revocation: Sentences. A sentence to a 15–year period of license revocation is mandatory for all persons who commit the offense of driving while their licenses are revoked.
4. Sentences. Generally, it is within a trial court's discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively.
5. Prior Convictions: Motor Vehicles: Sentences. Motorists committing multiple violations should not expect a sanction equivalent to that imposed on a motorist committing a unitary violation.
6. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation.
Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott, for appellant. Jon Bruning, Attorney General, and George R. Love, Lincoln, for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER–LERMAN, and CASSEL, JJ.
McCORMACK, J.
NATURE OF CASE
Neb.Rev.Stat. § 60–6,197.06 (Reissue 2010) states that when a defendant has been found guilty of operating a motor vehicle while his or her operator's license has been revoked, the court shall, as part of the judgment of conviction, revoke the operator's license “for a period of fifteen years from the date ordered by the court.” Section 60–6,197.06 provides further that “[s]uch revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.” The defendant asserts that under the plain language of § 60–6,197.06, the court cannot order commencement of the 15–year revocation for any date other than the date of sentencing, the date of final judgment upon appeal or review, or the date any probation is revoked. According to the defendant, a court cannot order a 15–year license revocation to be consecutive to the unexpired period of revocation under which the defendant committed the offense of driving with a revoked license. We disagree.
BACKGROUND
In 2003, Joe J. Policky was convicted of driving under the influence, third offense. He was sentenced to a 15–year license revocation, which began on August 29, 2003, and is to continue until August 29, 2018. On August 25, 2011, Policky was found operating a motor vehicle. This led to the current charge and conviction of driving during revocation, first offense. Policky pleaded no contest, and pursuant to § 60–6,197.06, the court ordered that Policky's license be revoked for 15 years consecutive to the revocation that is due to come to an end in August 2018. Policky appeals the sentence.
ASSIGNMENT OF ERROR
Policky assigns that the trial court erred in ordering that the 15–year license revocation sentence be consecutive to the 15–year license revocation previously imposed against him.
STANDARD OF REVIEW
The issue raised by Policky's assignment of error presents a question of law, in connection with which an appellate court has an obligation to reach independent conclusions irrespective of the decision made by the court below.
See State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013).
ANALYSIS
A sentence to a 15–year period of license revocation is mandatory for all persons who commit the offense of driving while their licenses are revoked. And, generally, it is within a trial court's discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively. Policky argues that the plain language of § 60–6,197.06, however, serves to limit the trial court's discretion. He asserts that the trial court erred as a matter of law in ordering his mandatory 15–year license revocation to be consecutive to the 15–year license revocation imposed for a prior offense. We affirm the sentence.
State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).
See State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
Section 60–6,197.06 states in relevant part:
[T]he court shall, as part of the judgment of conviction, revoke the operator's license of such person for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60–6,197.01. Such revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
Policky focuses both on the phrase “from the date ordered by the court” and on the last sentence stating that the revocation “shall be administered upon sentencing.” According to Policky, this last sentence limits “the date ordered by the court” to either the date of the sentencing order, the date of the final judgment after appeal of that order, or the date that any probation is revoked.
This court and the Nebraska Court of Appeals have several times addressed the phrase “from the date ordered by the court” and concluded it plainly means the revocation period shall commence from whatever date the court, in its sound discretion, indicates in the sentencing order. Our courts have explained that the phrase “ordered by the court” directly follows and modifies the word “date.” And the verb “ordered” in this context has an entirely different meaning from the noun “order,” which is the document imposing the sentence. Thus, the date the revocation period is to begin is not necessarily the date the sentencing order is issued.
See, State v. Fuller, 278 Neb. 585, 772 N.W.2d 868 (2009); State v. Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009); State v. Richardson, 17 Neb.App. 388, 763 N.W.2d 420 (2008); State v. Lankford, 17 Neb.App. 123, 756 N.W.2d 739 (2008).
See, State v. Fuller, supra note 5; State v. Lankford, supra note 5.
See id.
See id.
In State v. Fuller, we accordingly rejected the defendant's argument that the court could not order his 15–year license suspension to start when he was released from confinement for multiple related and unrelated offenses. We explained, “Obviously, some drivers may not be in a position to drive until they have served their sentence of incarceration. Therefore, the court is given the discretion to determine when the license revocation ... is to begin....” In State v. Heckman, we stated with regard to a similar statute that “[t]he only sensible result is that a penalty of suspending a motor vehicle operator's license be applied to individuals who have the ability to drive.”
State v. Fuller, supra note 5.
Id. at 590, 772 N.W.2d at 871.
State v. Heckman, 239 Neb. 25, 30, 473 N.W.2d 416, 420 (1991).
Other courts have similarly noted that motorists whose operators' licenses have “been suspended in one matter and revoked in another” are not generally considered entitled to serve the penalties concurrently. Motorists committing multiple violations should not expect a sanction equivalent to that imposed on a motorist committing a unitary violation. We agree that a mandatory rule that the revocation period for driving with a revoked license be concurrent to the preexisting period of revocation would provide little incentive for motorists not to drive with revoked licenses.
.60 C.J.S. Motor Vehicles § 428 at 480 (2012).
See Alabama Dept. of Public Safety v. Barbour, 5 So.3d 601 (Ala.Civ.App.2008).
We have never directly addressed an argument that the last sentence of § 60–6,197.06—that “[s]uch revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked”—constrains the trial court's discretion to order when the mandatory 15–year license revocation period shall begin. But we observe that this “shall be administered” sentence was part of the relevant statutes when our courts determined that the period of revocation need not necessarily begin the same date as the sentencing order and may instead commence upon whatever date the court, in its sound discretion, directs.
See cases cited supra note 5.
In Fuller, we implicitly rejected Policky's argument by affirming a revocation period ordered to commence when the defendant was released from prison. Such commencement of revocation did not correspond to the date of sentencing, the date of the final judgment of any appeal or review, or to the date that any probation is revoked.
See State v. Fuller, supra note 5.
To the extent that the “shall be administered” sentence of § 60–6,197.06 could be read as ambiguous or in conflict with the rest of the statute, it must be construed in harmony with the entire statute and its intent. When words of a particular clause, taken literally, would plainly contradict other clauses of the same statute, or lead to some manifest absurdity or to some consequences which we see plainly could not have been intended, or to result manifestly against the general term, scope, and purpose of the law, then we may apply the rules of construction to ascertain the meaning and intent of the lawgiver, and bring the whole statute into harmony if possible. As explained, the clear intent of the “from the date ordered by the court” language is to allow trial courts discretion in determining when the period of revocation shall begin.
See Anthony, Inc. v. City of Omaha, 283 Neb. 868, 813 N.W.2d 467 (2012).
Id.
The last sentence of § 60–6,197.06 immediately follows the phrase, “the court shall ... revoke ... for a period ... from the date ordered by the court,” and refers directly back to “[s]uch revocation and order....” We expressly conclude now what we implicitly concluded in Fuller: this last sentence of § 60–6,197.06 was not intended to limit the trial court's discretion in crafting “[s]uch revocation and order....”
Our interpretation is consistent with sound public policy and the trial court's general discretion to order sentences consecutively or concurrently. Furthermore, the Legislature has not amended § 60–6,197.06 since our decision in Fuller. When judicial interpretation of a statute has not evoked a legislative amendment, it is presumed that the Legislature has acquiesced in the court's interpretation.
Sheldon–Zimbelman v. Bryan Memorial Hosp., 258 Neb. 568, 604 N.W.2d 396 (2000).
Policky believes § 60–6,197.06 mandates that the trial court sentence him to a 15–year license revocation running concurrently with the 15–year license revocationin effect when he committed the crime of driving with a revoked license and continuing until 2018. We find no merit to this contention. Because his license was already revoked, if the court had ordered the 15–year license revocation in issue to run from the date of sentencing, a significant part of that revocation period would be meaningless. The trial court did not abuse its discretion in the date that it chose for Policky's 15–year revocation period to commence.
CONCLUSION
For the foregoing reasons, we affirm the lower court's judgment.
affirmed.