State v. Blue, 85-736
| Citation | 223 Neb. 379,391 N.W.2d 102 |
| Decision Date | 03 July 1986 |
| Docket Number | No. 85-736,85-736 |
| Parties | STATE of Nebraska, Appellee, v. Donna T. BLUE, Appellant. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
1. Pleas: Records. The absence of the court reporter does not prevent a defendant from obtaining a record of an arraignment proceeding.
2. Appeal and Error. Ordinarily, a party will not be permitted to benefit from an error which she has invited.
3. Pleas: Records: Constitutional Law: Waiver. No defendant who pleads guilty may be imprisoned for any offense, whether a traffic infraction, misdemeanor, or felony, absent a knowing and intelligent waiver of his rights as provided for by the Boykin-Turner rule. A voluntary and intelligent waiver of these rights must affirmatively appear from the record.
4. Pleas: Records: Constitutional Law: Waiver. A verbatim transcript of the rendition of a guilty plea is not constitutionally required, nor does absence of such a transcript require a finding that the plea was invalid. A checklist or other docket entry which is sufficiently complete can establish a valid waiver.
5. Courts: Pleas: Records: Waiver. Ordinarily, the district court should not permit a defendant entering either a plea of guilty or nolo contendere to waive the presence of the court reporter.
Thomas M. Kenney, Douglas County Public Defender, and Victor Gutman, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Terry R. Schaaf, Lincoln, for appellee.
Upon a plea of nolo contendere, the defendant, Donna T. Blue, was convicted of obtaining a benefit administered by the Department of Public Welfare, to wit, a payment to which she was not entitled or a larger payment than that to which she was entitled, in a sum of less than $500, by means of a willfully false statement or representation or other device, and sentenced to 45 days in jail. She has appealed and contends that the trial court erred in finding that her plea was voluntarily, knowingly, and intelligently entered and in failing to make a proper record showing that she was advised that a plea of nolo contendere waived essential state and federal constitutional rights.
The record of the arraignment originally filed in this court consisted only of a docket entry which recited in part:
Plaintiff represented in Court by Deputy County Attorney William Eustice. Defendant and Defendant's counsel freely, voluntarily, knowingly, intelligently, and understandingly waive the presence of the Court Reporter. Defendant present in Court with Counsel Larry Barrett.... Defendant freely, voluntarily, knowingly, intelligently, and understandingly entered her plea of NOLO CONTENDERE to the charge contained in the AMENDED Information and thereupon was found and adjudged by the Court to be guilty as charged. Sentence deferred. Presentence investigation ordered. Bond continued.
In State v. Tweedy, 209 Neb. 649, 654-55, 309 N.W.2d 94, 98 (1981), after citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), we held:
[N]o defendant may be imprisoned for any offense, whether a traffic infraction, misdemeanor, or felony, absent a knowing and intelligent waiver of his rights as provided for by the Boykin-Turner rule. That means that such defendants are entitled to be informed of the nature of the charges against them, the right to assistance of counsel, the right to confront witnesses against them, the right to a jury trial where otherwise authorized, and the privilege against self-incrimination. A voluntary and intelligent waiver of these rights must affirmatively appear from the record.
In State v. Predmore, 220 Neb. 336, 370 N.W.2d 99 (1985), we held the record must affirmatively show that the trial court personally examined the defendant to ensure that he knows and understands his rights and is making a voluntary and intelligent waiver of them. See, also, State v. Mindrup, 221 Neb. 773, 380 N.W.2d 637 (1986).
The issue here is whether the lack of a verbatim record requires that the judgment be reversed.
In State v. Ziemba, 216 Neb. 612, 628, 346 N.W.2d 208, 218 (1984), we held:
[A] verbatim transcript of the rendition of a guilty plea is not constitutionally required, nor does absence of such a transcript require a finding that the plea was invalid. A checklist or other docket entry which is sufficiently complete to comply with the requirements of State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981), State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983), and the requirements previously set out in this opinion can establish a valid waiver. A checklist or other such docket entry which is made by one authorized to make it imports verity, and unless contradicted it stands as a true record of the event.
Although a verbatim transcript is not constitutionally required to establish the validity of a plea of guilty or nolo contendere, such a record is the preferred method for showing that the arraignment in the district court complied with all constitutional requirements. Ordinarily, the district court should not permit a defendant entering either a plea of guilty or nolo contendere to waive the presence of the court reporter.
However, the absence of the court reporter does not prevent a defendant from obtaining a record of an arraignment proceeding. Neb.Ct.R. of Prac. 5 C(4) (rev.1983) of this court provides:
If the reporter is unable to prepare and certify a bill of exceptions, or if a bill of exceptions cannot be prepared and certified...
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