State v. Stafford

State of NebraSka , appellaNt, v.
William J. Stafford, appellee .
767 N.W.2d 507
Filed July 10, 2009. 	No. S-08-881.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does
not involve a factual dispute is a matter of law that requires an appellate court to
reach an independent conclusion irrespective of the determination made by the
court below.
2. Criminal Law: Judgments: Jurisdiction: Appeal and Error. Absent specific
statutory authorization, the State, as a general rule, has no right to appeal an
adverse ruling in a criminal case.
3. Criminal Law: Judgments: Jurisdiction: Statutes: Appeal and Error. Certain
exceptions are permitted by statute from the general rule that the State has no
right to appeal an adverse ruling in a criminal case, but because such statutes are
penal statutes, they are to be strictly construed against the government.
4. Sentences: Legislature: Intent. Under Neb. Rev. Stat. § 29-2320 (Reissue 2008),
the Legislature has specifically chosen to exempt misdemeanor sentences from
excessive leniency review.
5. Statutes. It is not within the province of the courts to read a meaning into a stat-
ute that is not there or to read anything direct and plain out of a statute.
Appeal from the District Court for Sarpy County: max
kelch, Judge. Appeal dismissed.
Jennifer 	A. 	Miralles, 	Deputy 	Sarpy 	County 	Attorney,
and Jonathan E. Roundy, Senior Certified Law Student, for
appellant.
Patrick 	J. 	Boylan, 	Chief 	Deputy 	Sarpy 	County 	Public
Defender, and Scott B. Blaha, Senior Certified Law Student,
for appellee.
heavicaN, 	c.J., 	Wright, 	coNNolly, 	gerrard, 	StephaN,
mccormack, and miller-lermaN, JJ.
per curiam.
This is an appeal brought by the State from William J.
Stafford’s conviction for driving under the influence of alcohol
(DUI), third offense. The question presented by the State is
whether the trial court imposed an excessively lenient sentence
as a result of the court’s determination that evidence of a prior
DUI conviction was inadmissible for sentence enhancement
STATE v. STAFFoRD 	109
Cite as 278 Neb. 109
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

purposes. The first issue we must decide, however, is whether
the State followed the correct procedure in seeking appellate
review of the issue it is attempting to raise.
BACkgRoUND
Stafford was charged by information with one count of
theft and one count of DUI. The theft charge is not directly
at issue in this appeal. Stafford pled guilty and was convicted
on each charge. The State offered evidence of three prior
DUI convictions. Evidence of two of the convictions was
received without objection, and those convictions are not at
issue here.
Nor did Stafford object to exhibit 3, the contested evidence
in this appeal. But the district court asked Stafford’s counsel if
he had any argument as to whether exhibit 3 was a valid DUI
conviction. The problem, as observed by the State, was that
on the critical page of the exhibit, the sentencing court had
checked the box indicating that Stafford had entered a plea,
but failed to check any of the boxes that would have indicated
whether Stafford pled guilty, not guilty, or no contest. Below
that, the sentencing court checked the box indicating that
Stafford had been found guilty of DUI.
The district court concluded it was unable to find that
Stafford had pled guilty to the DUI charge. Therefore, the
court found that exhibit 3 was not a valid prior conviction for
DUI and sentenced Stafford for third-offense DUI. The court
specifically found:
Exhibit 1 was a valid prior conviction for . . . Stafford,
for driving under the influence of alcohol or drugs
from 2002; Exhibit 4 is a valid prior conviction from
2003; and, therefore, he has two valid prior convictions
for driving under the influence of alcohol or drugs.
Therefore, the present offense is a 3rd offense DUI,
a Class W Misdemeanor, and that finding is made on
the record.
(Emphasis supplied.) Stafford was sentenced to 180 days’
imprisonment, to be served consecutively to the sentence for
his theft conviction. His operator’s license was revoked for a
period of 15 years. The State filed a notice of appeal.
110 	278 NEBRASkA REPoRTS

ASSIgNMENT oF ERRoR
The State assigns that the district court erred when it deter-
mined that exhibit 3, a certified copy of Stafford’s DUI con-
viction from Douglas County, was not valid for enhancement
purposes because it lacked a clarifying checkmark.
STANDARD oF REvIEW
[1] A jurisdictional question that does not involve a factual
dispute is a matter of law that requires an appellate court to
reach an independent conclusion irrespective of the determina-
tion made by the court below.1
ANALySIS
[2,3] We turn first to a question of jurisdiction. Absent spe-
cific statutory authorization, the State, as a general rule, has no
right to appeal an adverse ruling in a criminal case.2 Certain
exceptions from this general rule are permitted by statute, but
because such statutes are penal statutes, they are to be strictly
construed against the government.3 In this case, the State did
not pursue an error proceeding, pursuant to Neb. Rev. Stat.
§ 29-2315.01 (Reissue 2008). Instead, the State appealed pur-
suant to Neb. Rev. Stat. § 29-2320 (Reissue 2008), claiming
that the sentence imposed was excessively lenient. We note that
although § 29-2320 was recently amended,4 that amendment is
not relevant to this case, and for ease of reference, we cite to
the codified version of the statute that was in effect when this
appeal was taken.
[4] Section 29-2320 provides that
[w]henever a defendant is found guilty of a felony fol-
lowing a trial or the entry of a plea of guilty or tendering a
plea of nolo contendere, the prosecuting attorney charged
with the prosecution of such defendant may appeal the
sentence imposed if such attorney reasonably believes,
1 State v. Caniglia, 272 Neb. 662, 724 N.W.2d 316 (2006).
2 State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).
3 Id.
4 See L.B. 63, 101st Leg., 1st Sess.
STATE v. STAFFoRD 	111
Cite as 278 Neb. 109

based on all of the facts and circumstances of the particu-
lar case, that the sentence is excessively lenient.
Under § 29-2320, a prosecuting attorney may appeal sentences
imposed in felony cases when he or she reasonably believes the
sentence is excessively lenient.5 The Legislature has specifi-
cally chosen to exempt misdemeanor sentences from excessive
leniency review.6 And in this case, Stafford was specifically
convicted and sentenced for third-offense DUI, a Class W
misdemeanor.7 Thus, as State v. Vasquez8 explains, the sentence
imposed cannot be reviewed for excessive leniency.
[5] The State makes two arguments in response. First, the
State contends that “because the conviction for DUI should
have been determined to be a felony, it is appealable as a
felony until the ultimate issue is decided.”9 But this argument is
inconsistent with the plain language of § 29-2320, which per-
mits a prosecuting attorney to appeal only when “a defendant
is found guilty of a felony.” It is not within the province of the
courts to read a meaning into a statute that is not there or to
read anything direct and plain out of a statute.10 Accordingly,
as we concluded in Vasquez, we are without power to affect
Stafford’s misdemeanor sentence.11
The State also argues that we have jurisdiction because
Stafford was, in the same proceeding, convicted and sentenced
for theft by receiving property valued between $500 and $1,500,
a Class Iv felony.12 The State contends that it “obtained juris-
diction to have the entire sentence reviewed when it exercised
its right to appeal the one felony sentence under Neb. Rev. Stat.
5 See State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
6 See id.
7 See Neb. Rev. Stat. §§ 28-106 (Reissue 2008) and 60-6,197.03(4) (Supp.
2007).
8 Vasquez, supra note 5.
9 Reply brief for appellant at 2 (emphasis supplied).
10 Vasquez, supra note 5.
11 Id.
12 See Neb. Rev. Stat. §§ 28-517 and 28-518(2) (Reissue 2008).
112 	278 NEBRASkA REPoRTS

§ 29-2320 because Nebraska courts consider the full sentence
stemming from a multi-count prosecution.”13
But there are two problems with this argument. The first
is that the State’s brief does not take issue with the sentence
imposed on Stafford for theft. Section 29-2320 provides that
when a defendant is found guilty of a felony, the prosecut-
ing attorney may “appeal the sentence imposed” if he or she
believes it to be excessively lenient. It would defy our basic
principles of statutory construction to conclude that the “sen-
tence imposed” refers to anything other than the sentence
imposed for the defendant’s felony conviction. Instead, as we
stated in Vasquez, our principles of statutory construction com-
pel the conclusion that the Legislature “chose to exempt misde-
meanor sentences from excessive leniency review.”14
Beyond that, even if we assume that there is some weight
to the State’s claim that the sentences imposed for misde-
meanors and felonies in a multiple-count proceeding can be
considered together for excessive leniency review—a matter
we do not decide—such a principle is not implicated here. As
previously noted, the State has taken no issue with the sen-
tence for theft. Nor has the State complained about the cumu-
lative effect of the sentences imposed. Instead, the State’s
entire argument is focused on the enhancement proceeding
and exhibit 3. Even if we were to consider the DUI sentence
as part of an excessively lenient “package” of sentences, our
authority under § 29-2320 is limited to reviewing a sentence
imposed for a felony conviction.15 In this case, that would be
Stafford’s conviction for theft, which the State has not asked
us to review.
In short, under § 29-2320, an appellate court lacks the
authority to review a sentence imposed for a misdemeanor
conviction. Therefore, we lack the authority to grant the only
relief requested by the State in this appeal, and the appeal must
be dismissed.
13 Reply brief for appellant at 2-3.
14 Vasquez, supra note 5, 271 Neb. at 915, 716 N.W.2d at 452.
15 See Neb. Rev. Stat. § 29-2323 (Reissue 2008).
STATE v. STAFFoRD 	113
Cite as 278 Neb. 109

CoNCLUSIoN
The only issue raised by the State in this appeal is whether
Stafford’s conviction for third-offense DUI, a Class W misde-
meanor, was excessively lenient. Under § 29-2320, we lack
authority to review a misdemeanor sentence for excessive leni-
ency. Therefore, this appeal is dismissed.
appeal diSmiSSed.
gerrard, J., concurring.
I agree with the court’s conclusion that under Neb. Rev. Stat.
§ 29-2320 (Reissue 2008), the State cannot appeal an exces-
sively lenient sentence imposed for a misdemeanor conviction.
I write separately to point out that the unpalatable result in
this case is a collateral result of the court’s decision in State
v. Hense.1
obviously, the State could have brought an error proceeding
in this case, pursuant to Neb. Rev. Stat. § 29-2315.01 (Reissue
2008). But under this court’s decisions in Hense and State v.
Head,2 the defendant could not have been resentenced, even if
the district court’s refusal to enhance the defendant’s sentence
was incorrect. The State, quite reasonably, wanted Stafford
resentenced for what it believes to be the correct offense. And
there is a reasonable interpretation of Neb. Rev. Stat. § 29-2316
(Reissue 2008) under which this court could, consistent with
principles of double jeopardy, order the defendant to be resen-
tenced if the district court had erred.3 But under our current
interpretation of § 29-2316, the State had no other option but
to try § 29-2320.
I certainly understand the State’s dilemma in this case. But
this court’s holding in Hense should not be compounded by
another error in disregarding the plain language of § 29-2320.
Because § 29-2320 does not permit the State to appeal under
these circumstances, I concur in the court’s opinion.
heavicaN, C.J., and StephaN, J., join in this concurrence.
1 State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).
2 State v. Head, 276 Neb. 354, 754 N.W.2d 612 (2008).
3 See Hense, supra note 1 (gerrard, J., concurring in part, and in part dis-
senting; Heavican, C.J., and Stephan, J., join). See, also, State v. Neiss,
260 Neb. 691, 619 N.W.2d 222 (2000).
114 	278 NEBRASkA REPoRTS