State v. Ziemba

• Decision Date: 24 February 1984
• Docket Number: No. 83-501,83-501
• Citation: 216 Neb. 612,346 N.W.2d 208
• Parties: STATE of Nebraska, Appellant, v. Thomas M. ZIEMBA, Appellee.
• Court: Nebraska Supreme Court

Page 208

346 N.W.2d 208

216 Neb. 612

STATE of Nebraska, Appellant, v. Thomas M. ZIEMBA, Appellee.

No. 83-501.

Supreme Court of Nebraska.

Feb. 24, 1984.

Syllabus by the Court

1. Criminal Law: Courts: Judgments: Appeal and Error. An order of the district court reversing a judgment of the county court in a criminal case, vacating the sentence, and remanding the cause for imposition of sentence may be reviewed under Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1982).

2. Pleas. A valid plea of guilty waives all defenses to the charge, whether procedural, statutory, or constitutional.

3. Pleas. In order to make an intelligent and voluntary plea at a group arraignment, the defendant must have been present when the court advised those charged of their constitutional rights. The record must disclose that defendant was present at that time.

4. Pleas: Drunk Driving: Prior Convictions. An accused being arraigned for driving while intoxicated must be advised whether he is charged with a first, second, or third offense and the maximum penalties applicable to the offense charged.

5. Complaints: Drunk Driving: Prior Convictions. A complaint charging second or third offense driving while intoxicated should allege the facts upon which the State relies to establish that the offense charged is a second or third offense.

6. Drunk Driving: Prior Convictions. The record of an enhancement proceeding for second or third offense driving while intoxicated must show that the requirements set out in State v. Smith, 213 Neb. 446, 329 N.W.2d 564 (1983), and Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1982) were satisfied.

7. Drunk Driving: Prior Convictions: Waiver. A defendant charged with second or third offense driving while intoxicated may waive proof of a prior conviction by a transcript of the judgment, and may waive the rights provided in Neb.Rev.Stat. § 39-669.07 (Cum.Supp.1982) in regard to prior convictions.

8. Pleas. Under certain circumstances a checklist authenticated by the signature or initials of the judge can be considered a part of the record. Such a checklist may serve to affirmatively establish that a defendant made an intelligent and voluntary guilty plea. Such a checklist must comply with State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981).

9. Pleas. 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.

10. Cases Disapproved. State v. Feagin, 196 Neb. 261, 242 N.W.2d 124 (1976), and State v. Prichard, 215 Neb. 488, 339 N.W.2d 748 (1983), disapproved in part.

J. Patrick Kelly, Sarpy County Atty., and Michael D. Wellman, Papillion, for appellant.

Owen A. Giles and John S. Barrett, Papillion, for appellee.

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

BOSLAUGH, Justice.

This is a proceeding under Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1982) to review an order of the district court made on June 6, 1983, reversing the judgment of the county court, vacating the sentence imposed by the county court, and remanding the cause to the county court for imposition of sentence.

After this court had granted leave to docket the proceeding, the defendant moved to dismiss the proceeding on the ground that there had been no final order from which the defendant could appeal to this court. The statute permits a review of "any ruling or decision of the court made during the prosecution of a cause." The application for leave must be presented within 20 days after the final order has been entered in the cause. § 29-2315.01.

The order of the district court made on June 6, 1983, was a final order so far as the ruling now being questioned is concerned. The trial court in this instance was the county court, and the order for which review is sought is the order of the district court on appeal, reversing the judgment of the county court, vacating the sentence, and remanding the cause for imposition of sentence.

The situation in this case is similar to that in State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962), where the district court sustained a motion to quash in an appeal from the municipal court where the defendant had been found guilty of violating a municipal ordinance and fined $100 and costs. In the Amick case this court reversed the judgment of the district court and remanded the cause. See, also, State v. Hutter, 145 Neb. 798, 18 N.W.2d 203 (1945).

In a complaint filed in the county court on August 25, 1982, the defendant, Thomas M. Ziemba, was charged with third offense driving while intoxicated. A second count charging driving under suspension was dismissed later.

The record shows that the following took place at a group arraignment in the county court on September 13, 1982: "THE COURT: Good morning, be seated, please, in the courtroom. We are on the record. Matters that come before the Court, at this time, arraignments under State Statutes and City Ordinances. I will first of all advise you as to courtroom proceedures [sic], as your name is called if you would then come foreward [sic] before the microphone, out here in front of the bench. At which time you will be informed of the charge that has been filed against you, by the county attorney for Sarpy County. You will also be informed of the possible penalty on conviction. At arraignment, as we are having here this morning, you have a choice to make. First of all, you may plead guilty and if you do that a penalty within that prescribed by Statute will be assessed. You can then take the complaint back down to the traffic fine window, at the clerk of court, and arranges [sic] there for payment of any fines assessed. Secondly, you may plead not guilty and if you do that your case will be set for trial at a later date. And you are entitled to have a bond set on condition of further appearances. Finally, you are entitled for a continuance for further arraignment, if you intend to consult with your attorney, or for some other good reason. Also advise you as to you [sic] constitutional rights. At trial you have a right to a fair and impartial trial, by jury, in the case of misdemeanors where the state has the burden of proving the charge beyond a reasonable doubt. You have a right to be present at trial, with your attorney, to confront the witnesses that would appear against you and to cross examine them. If the charge carries a possible jail sentence, on conviction, you have a right to a court appointed public defender, that is an attorney at public expense, if you ask for an attorney and if you further qualify, by being indegent [sic] as defined by law. You would have the further right at trial to present your evidence. And in that regard to have the subpoena powers of the court for the attendance of your witnesses. The right to remain silent, yourself. That is, you would not have to testify at trial, unless you would choose to do so. Finally, you would have the right to appeal these proceedings and the decision of this Court, on the record, to district court. Now this morning, deputy county attorney, Miss Gryva is prosecuting. You may call your cases.

"MISS GRYVA: Thomas M. Ziemba. Z-I-E-M-B-A. Charged with driving while intoxicated, third offense, and driving under suspension.

"THE COURT: All right. Mr. Ziemba, the complaint here docket 74, page 748, charges you with two counts of misdemeanor, as you have been informed. Do you understand these charges, or do you wish to have this complaint read to you?

"MR. ZIEMBA: No, Sir, I understand them.

"THE COURT: Now even though this charges a third offense, on this complaint, I am going to give you the possible penalty, on conviction, under this new law for first, second and third offense. Now, this is known as a Class W misdemeanor and for a first conviction, seven days imprisonment with a six months license suspension and a $200 fine, if probation is granted license suspension for a minimum of 60 days. Second conviction, 30 days imprisonment with a one year license suspension and $500 fine, if probation is granted minimum six months license suspension and 48 hours jail. Third conviction, three months minimum imprisonment, to six months maximum imprisonment, permanent license suspension or revocation and a $500 fine, if probation is granted a seven day imprisonment with one year license suspension. And also to Count II, the driving under suspension, work permit, which is listed as a Class IV misdemeanor on conviction, the possible penalty on that would be a minimum fine $100, maximum $500. Do you understand your rights to a trial and to an attorney?

"MR. ZIEMBA: Yes, Sir.

"THE COURT: And are you ready, this morning, to waive those rights and proceed, here, to a plea on these charges?

"MR. ZIEMBA: Yes, Sir, I would rather waive rights.

"THE COURT: Okay. Then how do you plead to, then, to the charges?

"MR. ZIEMBA: Guilty."

The county court then determined that there was a factual basis for the plea, continued the matter for a presentence investigation, and announced that a hearing regarding prior convictions would be held at the time of sentencing. The defendant failed to appear before the probation officer and did not appear on October 8, 1982, the date set for sentencing.

At a sentencing hearing on November 5, 1982, the court noted that the defendant had been convicted of driving while intoxicated on January 20, 1979, and again on November 13, 1980. The defendant was fined $500; his operator's license and driving privileges were suspended permanently; and he was sentenced to jail for 3 months.

Upon appeal to the district court that court found that "the record affirmatively supports a finding the defendant was properly advised of his constitutional rights and he effectively waived them in entering pleas of guilt."

The district court further found that the defendant "was never advised of his right to present mitigating facts or object to the validity of the prior...