State v. Foral, S-91-249

• Decision Date: 27 March 1992
• Docket Number: No. S-91-249,S-91-249
• Citation: 481 N.W.2d 583,240 Neb. 346
• Parties: STATE of Nebraska, Appellant, v. David E. FORAL, Appellee.
• Court: Nebraska Supreme Court

Page 583

481 N.W.2d 583

240 Neb. 346

STATE of Nebraska, Appellant, v. David E. FORAL, Appellee.

No. S-91-249.

Supreme Court of Nebraska.

March 27, 1992.

Syllabus by the Court

1. Courts: Appeal and Error. On remand of a cause the trial court has no alternative except to obey and perform the mandate of the appellate court.

2. Judgments: Appeal and Error. Where the appellate court remands a cause with directions to enter a particular judgment for a party, the judgment of the appellate court is a final judgment in the cause and the entry thereof in the lower court is a purely ministerial act. No modification of the judgment so directed can be made, nor may any provision be engrafted on or taken from it.

3. Sentences: Jurisdiction: Appeal and Error. As a general rule, the trial court's jurisdiction to modify a sentence after appeal is limited by the terms of Neb.Rev.Stat. § 29-2308.01 (Reissue 1989) to cases in which the original sentence was affirmed or the appeal was dismissed.

4. Judgments: Sentences: Appeal and Error. When the Supreme Court affirms a judgment or dismisses the appeal, ordinarily it has not given plenary consideration to the sentence and has not determined its propriety. In other words, on affirmance, the appellate court has not decided that the sentence imposed necessarily was the correct one, but, rather, that it did not embody an abuse of the trial court's discretion. The same cannot be said of a judgment which is reversed and the cause remanded with directions.

James S. Jansen, Douglas Cty. Atty., and Gregory R. Abboud, Omaha, for appellant.

Martin J. Kushner, of Kushner Law Office, Omaha, for appellee.

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

HASTINGS, Chief Justice.

The State has appealed from the judgment of the district court which reduced defendant's sentence of imprisonment to 15 months from its sentence of 5 years imposed as the result of a mandate of this court in State v. Foral, 236 Neb. 597, 462 N.W.2d 626 (1990) (Foral I ). We again reverse, and remand with directions to the trial court to impose a sentence of imprisonment of 5 years.

In Foral I, defendant was sentenced to a term of imprisonment of 5 years for the offense of operating a motor vehicle while his license was suspended for life or 15 years, a Class IV felony. On motion to reduce sentence under the provisions of Neb.Rev.Stat. § 29-2308.01 (Reissue 1989), the trial court reduced the sentence to one of probation for a term of 5 years. The State appealed, as permitted by Neb.Rev.Stat. § 29-2320 (Reissue 1989), claiming the sentence was excessively lenient. We agreed, pointing out that the defendant had been convicted of driving while intoxicated six times and twice of driving while under suspension, and of driving while intoxicated in the instant case when the defendant's license had been suspended. Accordingly, we determined that the sentence was excessively lenient and vacated the sentence of the trial court and remanded the cause with directions to resentence the defendant to the original sentence of imprisonment for 5 years. Neb.Rev.Stat. § 29-2323(1) (Reissue 1989) provided: "If [the Supreme Court] determines that the sentence imposed is excessively lenient, [it shall] set aside the sentence, and: (a) Remand the case for imposition of a greater sentence; (b) Remand the case for further sentencing proceedings; or (c) Impose a greater sentence." In Foral I this court, in effect, opted for the third alternative. We did not suggest that the trial court impose a greater sentence within its discretion, nor did we require further sentencing procedures. We directed the district court to impose a specific sentence, i.e., a resentencing of the defendant to the original sentence of 5 years' imprisonment.

"[O]n remand the district court has no alternative except to obey and perform the mandate of the Supreme Court." State v. Rolling, 219 Neb. 800, 801, 366 N.W.2d 441, 442 (1985). Accord Jameson v. Nelson, 216 Neb. 26, 28, 341 N.W.2d 596, 597 (1983) ("on remand, the trial court has no alternative except to follow the directions given"). Moreover,

" '[w]here the appellate court remands a cause with directions to enter judgment for the plaintiff in a certain amount, the judgment of the appellate court is a final judgment in the cause and the entry thereof in the lower court is a purely ministerial act. No modification of the judgment so directed can be made, nor may any provision be engrafted on, or taken from it.' "

Gates v. Howell, 211 Neb. 85, 89, 317 N.W.2d 772,...