State v. Olson, 83-621

Decision Date27 April 1984
Docket NumberNo. 83-621,83-621
Citation217 Neb. 130,347 N.W.2d 862
PartiesSTATE of Nebraska, Appellee, v. Gary K. OLSON, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Constitutional Law: Appeal and Error. For a question of constitutionality to be considered on appeal, it must have been properly raised in the trial court. Except in the most unusual of cases, if it has not been raised in the trial court, it will be considered to have been waived.

2. Criminal Law: Appeal and Error. The standard of review in criminal cases on appeal to the district court from the county court is limited to an examination of the record presented for error or abuse of discretion.

3. Sentences. A sentence imposed within the statutory limits will not be disturbed on appeal absent an abuse of discretion.

John M. Gerrard of Domina Law Firm P.C., Norfolk, for appellant.

Paul L. Douglas, Atty. Gen., and Linda L. Willard, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Defendant-appellant, Gary K. Olson, pled guilty to third offense drunk driving before the county court for Madison County. He was found guilty and sentenced to serve 3 months in the county jail, to pay a $500 fine, to never drive again in this state for any purpose, to have his driver's license permanently revoked, and to pay court costs. The finding of guilt and the sentence were affirmed on appeal to the district court for Madison County. We affirm the actions of the district court.

The complaint filed February 14, 1983, alleged, among other things, that on February 4 of that year Olson operated a motor vehicle on a public street or highway while under the influence of alcoholic liquor and that this was the third such offense. On February 15, 1983, Olson appeared with an attorney before County Judge Philip R. Riley. Judge Riley carefully explained Olson's constitutional rights and advised Olson of the potential penalties should he be found guilty of third offense drunk driving. At this time Olson pled not guilty.

On May 3, 1983, Olson again appeared before Judge Riley with a second attorney who practiced in the same firm as the one who first appeared in the case. A charge of refusing to submit to a chemical test was dismissed. Olson withdrew his plea of not guilty to the third offense drunk driving charge and entered a plea of guilty. Judge Riley properly found that there was a factual basis for such plea and accepted it. The record on the issue of guilt reflects that Olson had been convicted of drunk driving under this state's statutes on two prior occasions, once on June 28, 1977, and again on February 5, 1980, for offenses occurring on March 19, 1977, and December 16, 1979, respectively. The record also affirmatively shows that he was represented by counsel on each of those occasions.

On appeal to the district court for Madison County, Olson's present attorney asserted for the first time that the penalties specified by Neb.Rev.Stat. § 39-669.08(4)(c) (Cum.Supp.1982) are unconstitutional. Since that statute deals with persons who refuse to submit to chemical tests, a charge which was dismissed here, we assume that counsel refers to Neb.Rev.Stat. § 39-669.07(3) (Cum.Supp.1982), which concerns itself with the penalties for persons operating or being in the actual physical control of any motor vehicle while under the influence of alcoholic liquor. Section 39-669.07(3) provides in pertinent part as follows:

If such person (a) has had two or more convictions under this section since July 17, 1982, (b) has been convicted two or more times under this section as it existed prior to July 17, 1982, (c) has been convicted two or more times under a city or village ordinance enacted pursuant to this section either prior or subsequent to July 17, 1982, or (d) has been convicted as described in subdivisions (3)(a) to (3)(c) of this section a total of two or more times, such person shall be guilty of a Class W misdemeanor and the court shall, as part of the judgment of conviction, order such person to never again drive any motor vehicle in the State of Nebraska for any purpose from the date of his or her conviction, and shall order that the operator's license of such person be permanently revoked.

If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order such person not to drive any motor vehicle in the State of Nebraska for any purpose for a period of one year, and such order of probation shall include as one of its conditions confinement in the city or county jail for seven days.

In this appeal Olson assigns three errors to the actions of the district court: (1) The failure to consider the constitutionality of "the sentencing portion" of the subject statute; (2) The failure to find that portion of the statute unconstitutional; and (3) The imposition of an excessive sentence.

As to the first assignment of error, it is, and has long been, the rule that for a question of constitutionality to be considered on appeal, it must have been properly raised in the trial court. Except in the most unusual of cases, if it has not been raised in the trial court, it will be considered to have been waived. State v. Hiross, 211 Neb. 319, 318 N.W.2d 291 (1982); State v. Schwade, 177 Neb. 844, 131 N.W.2d 421 (1964).

Olson argues, however, that the rule does not apply because the...

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13 cases
  • State v. Lynch, s. 86-073
    • United States
    • Nebraska Supreme Court
    • October 10, 1986
    ...county court record for error or for an abuse of discretion. State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984); State v. Olson, 217 Neb. 130, 347 N.W.2d 862 (1984); Neb.Rev.Stat. § 24-541.06(1) (Reissue 1985). Where an ordinance charging an offense is not properly a part of the record,......
  • State v. Sinica
    • United States
    • Nebraska Supreme Court
    • August 23, 1985
    ...trial judgment clearly refers to § 28-707(1), and we assume the court intended it to refer to the proper statute. See State v. Olson, 217 Neb. 130, 347 N.W.2d 862 (1984). The appellee is the father of the alleged victim. The incident which gave rise to the complaint was called to the attent......
  • State v. Schroder
    • United States
    • Nebraska Supreme Court
    • December 21, 1984
    ...1979); State v. Hatfield, 218 Neb. 470, 356 N.W.2d 872 (1984); State v. Turner, 218 Neb. 365, 355 N.W.2d 219 (1984); State v. Olson, 217 Neb. 130, 347 N.W.2d 862 (1984); State v. Ferris, 216 Neb. 606, 344 N.W.2d 668 The right to appeal and the right to a speedy trial differ in two important......
  • State v. Kaiser, 84-320
    • United States
    • Nebraska Supreme Court
    • October 26, 1984
    ...of cases. State v. Hiross, 211 Neb. 319, 318 N.W.2d 291 (1982); State v. Smyth, 217 Neb. 153, 347 N.W.2d 859 (1984); State v. Olson, 217 Neb. 130, 347 N.W.2d 862 (1984); State v. Ledingham, 217 Neb. 135, 347 N.W.2d 865 (1984); State v. Mercer, 217 Neb. 164, 347 N.W.2d 868 Kaiser concedes th......
  • Request a trial to view additional results

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