State v. Mercer, 83-756
| Decision Date | 27 April 1984 |
| Docket Number | No. 83-756,83-756 |
| Citation | 347 N.W.2d 868,217 Neb. 164 |
| Parties | STATE of Nebraska, Appellee, v. James A. MERCER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
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.
Anthony S. Troia of Troia Law Offices, P.C., Omaha, for appellant.
Paul L. Douglas, Atty. Gen., and Linda L. Willard, Lincoln, for appellee.
The appellant, James A. Mercer, was convicted in the municipal court of Omaha, Douglas County, Nebraska, of the crime of operating a motor vehicle under the influence of intoxicating liquor in violation of Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1982). The complaint alleged that this was Mercer's fourth offense for operating a motor vehicle under the influence of intoxicating liquor. On March 14, 1983, upon being arraigned in the municipal court of Omaha, Douglas County, Nebraska, a plea of not guilty was entered. Thereafter, Mercer reappeared in court with his counsel and, with the court's permission, withdrew his plea of not guilty and entered a plea of nolo contendere. After reviewing the record and advising Mercer of all of his constitutional rights, the court accepted Mercer's plea and found that there was a factual basis to find Mercer guilty as charged. The court further accepted and received into evidence certified copies of prior convictions of driving while intoxicated, for the purpose of sentencing. The court then sentenced Mercer to a term of 90 days in the county jail, a fine of $500, and ordered his driver's license permanently revoked. Mercer appealed his conviction to the district court for Douglas County, Nebraska, whereupon the judgment and sentence were affirmed. After the district court announced the affirmance of the judgment of the municipal court, counsel for Mercer, on the record, in an informal discussion with the court, said, "Your Honor, we plan to take this matter up to the Supreme Court of the State of Nebraska to test the constitutionality of the statute, the section of the statute specifically with regard to cruel and unusual punishment as to the nature of lifetime suspension...." This was the first indication anyone had given, in either the municipal court or the district court, that any constitutional issue was being raised.
Now, on appeal to ...
To continue reading
Request your trial
-
State v. Oldfield
...raised in the trial court will not be considered on appeal. State v. Fleming, 223 Neb. 169, 388 N.W.2d 497 (1986); State v. Mercer, 217 Neb. 164, 347 N.W.2d 868 (1984). Since Oldfield, in the district court, did not raise the question of his constitutional right to a speedy trial, we will n......
-
State v. Fleming
...not properly before the court below will not be considered by this court for the first time on appeal." See, also, State v. Mercer, 217 Neb. 164, 347 N.W.2d 868 (1984). Fleming failed to raise the issue of constitutionality of § 28-510 in the proceedings before or during trial on the inform......
-
State v. Kaiser, 84-320
...(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 (1984). Kaiser concedes that the constitutionality of the statute was not raised at trial court level. Rather, he The fact that......
- Krohn v. Krohn, 83-754