State v. Mangelsen, 43149
| Decision Date | 10 October 1980 |
| Docket Number | No. 43149,43149 |
| Citation | 297 N.W.2d 765,207 Neb. 213 |
| Parties | STATE of Nebraska, Appellee, v. Loren E. MANGELSEN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jury Trials: Misdemeanors. There is no constitutional right to trial by jury for petty offenses carrying a maximum sentence of 6 months or less.
2. Criminal Defendants: Right to Counsel. A defendant in a criminal case, by electing to act as his own counsel, is bound by his own acts and conduct and is held responsible for his own ineptness.
3. Motor Vehicles: Licenses and Permits: Prior Convictions. Proof of a prior conviction or convictions is not an essential element of the crime of operating a motor vehicle while an operator's license was suspended or revoked, second offense, but goes only to enhance the punishment for the primary offense charged.
R. Steven Geshell, of Robak & Geshell, Columbus, for appellant.
Paul L. Douglas, Atty. Gen. and Lynne Rae Fritz, Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant was charged with the offense of operating a motor vehicle while his operator's license was suspended or revoked, second offense. The county court of Merrick County, Nebraska, found the defendant guilty after trial to the court, and imposed a sentence of 6 months in the county jail and revoked his operator's license for a period of 1 year. Upon appeal to the District Court for Merrick County, Nebraska, the judgment of the county court was affirmed.
On October 15, 1977, at about 4 p. m., the marshal of Silver Creek, Nebraska, observed the defendant driving a pickup truck. The marshal knew the defendant and knew that his operator's license had been revoked. The marshal followed the truck, stopped it, and placed the defendant under arrest. On October 20, 1977, a complaint was filed in the county court charging defendant with operating a motor vehicle while his operator's license was suspended or revoked, second offense. On October 25, 1977, the defendant was arraigned in the county court and informed by the court of his various constitutional rights, including the right to counsel, but he was not advised of a right to trial by jury. The defendant pleaded not guilty and the case was set for trial on December 20, 1977.
The defendant elected to act as his own counsel at trial and the case was tried to the county judge. The State introduced the evidence of the marshal as to the facts surrounding the arrest of defendant and introduced into evidence exhibit 1, which contained a certified copy of documents pertaining to the driving record and revocation and suspension of the driving privileges of the defendant taken from the files of the Department of Motor Vehicles. The exhibit was offered by the State for the express purpose of showing that, at the time of the offense, defendant's license had been suspended by the Department of Motor Vehicles. Exhibit 1 contained a certified copy of the order of the Department of Motor Vehicles revoking defendant's operator's license for a period of 6 months from April 11, 1977, together with photostatic copies of abstracts of conviction for five speeding and negligent driving violations, which constituted the basis for the revocation. There was also a copy of a notice of suspension of license dated August 18, 1977, for a default in payment for a 1975 accident. The exhibit also contained a computer printout sheet apparently listing defendant's driving record. The last line of that printout listed, under date of June 5, 1977, driving during suspension, filed in the county court at Albion, Nebraska, and a hearing date of September 23, 1977. Disposition is not shown.
The county court found the defendant guilty of operating a motor vehicle while his operator's license was suspended or revoked, second offense, and sentenced defendant to 6 months in the county jail and revoked his operator's license for a period of 1 year. Upon appeal to the District Court, the judgment of the county court was affirmed and this appeal followed.
The defendant first contends that the trial court's failure to advise him of his right to a jury trial was reversible error. The mandatory maximum penalty for second offense driving under suspension was 6 months imprisonment in the county jail. There is no constitutional right to trial by jury for petty offenses carrying a maximum sentence of 6 months or less. See, Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); State v. Young, 194 Neb. 544, 234 N.W.2d 196 (1975).
Nebraska provides a statutory right to jury trial in a criminal case in county or municipal court, with certain exceptions not applicable here, but the statute requires a demand to invoke the right. See Neb.Rev.Stat. § 24-536 (Reissue 1979). No demand was made in this case.
In essence, the defendant contends that when he elects to act as his own counsel, he must be advised by the court of any statutory...
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...See State v. McClinton , 418 S.W.2d 55, 60–61 (Mo. 1967) (discussing State v. Larger , 45 Mo. 510, 511 (1870) ); State v. Mangelsen , 207 Neb. 213, 297 N.W.2d 765, 767–68 (1980). ...
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