State v. Flores

this case. The award of attorney fees depends on multiple fac-
tors that include the nature of the case, the services performed
and results obtained, the earning capacity of the parties, the
length of time required for preparation and presentation of the
case, customary charges of the bar, and the general equities
of the case. Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351
(2007). We award Kahler an attorney fee of $1,500 for her
attorney’s services on appeal.
CONCLUSION
We do not consider Coleman’s assignment of error regard-
ing the temporary order, because that issue is moot. We con-
clude that the district court did not err in awarding custody
of the children to Kahler and allowing the children to remain
with her in Ohio. We sustain Kahler’s motion for attorney
fees for services in this court and allow a fee in the amount
of $1,500.
A ffirmed.
StAte of NebrASkA, Appellee , v.
oScAr l. floreS, AppellANt.
767 N.W.2d 512
Filed April 21, 2009. 	No. A-08-609.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
2. Pleas: Appeal and Error. Withdrawal of a plea is addressed to the discretion of
the trial court, and its ruling will not be disturbed on appeal absent an abuse of
that discretion.
3. Statutes. In the absence of a statutory indication to the contrary, words in a stat-
ute will be given their ordinary meaning.
4. Criminal Law: Statutes. A penal statute is given a strict construction which is
sensible and prevents injustice or an absurd consequence.
5. Judgments: Collateral Attack. When a judgment is attacked in a manner other
than by a proceeding in the original action to have it vacated, reversed, or modi-
fied, or by a proceeding in equity to prevent its enforcement, the attack is a col-
lateral attack.
6. Collateral Attack: Jurisdiction. Collateral attacks on previous proceedings are
impermissible unless the attack is grounded upon the court’s lack of jurisdiction
over the parties or subject matter.
532 	17 NebrASKA AppeLLATe repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

7. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentence complained of was an abuse of judi-
cial discretion.
Appeal from the District Court for Lancaster County: pAul
d. merritt, Jr ., Judge. Affirmed.
Dennis r. Keefe, Lancaster County public Defender, and
John C. Jorgensen for appellant.
Jon bruning, Attorney General, and Nathan A. Liss for
appellee.
iNbody, Chief Judge, and SieverS and cASSel, Judges.
cASSel, Judge.
INTrODUCTION
Oscar L. Flores was convicted and sentenced for driving under
a revoked license pursuant to Neb. rev. Stat. § 60-6,197.06
(Cum. Supp. 2008). Flores principally contends that the revoca-
tion of his operator’s license pursuant to a city-ordinance-based
prior conviction falls outside of the scope of qualifying prior
revocations identified in § 60-6,197.06. because we conclude
that the listed statutes incorporate convictions for violations
of conforming city ordinances and because Flores’ remaining
assignments of error lack merit, we affirm.
bACKGrOUND
On October 12, 2007, the automobile driven by a man later
identified as Flores rear-ended a vehicle on a street in Lincoln,
Nebraska. Flores attempted to flee but later returned to the
scene. In this appeal, Flores does not dispute the fact that he
was operating a motor vehicle.
On November 16, 2007, Flores was charged with driving
during revocation, subsequent offense. Flores’ license had been
revoked for 15 years pursuant to a February 5, 1993, third-
offense driving under the influence (DUI) conviction under
a Lincoln municipal ordinance. Flores committed the offense
on May 10, 1992. At an arraignment on November 28, 2007,
Flores waived service of a copy of the information and entered
a plea of not guilty. On December 7, Flores moved to withdraw
STATe v. FLOreS 	533
Cite as 17 Neb. App. 532

his plea of not guilty so that he could file a plea in abatement.
The district court denied the motion.
After a bench trial conducted on March 14 and 19, 2008, the
court found Flores guilty of the underlying offense. Following
an enhancement hearing held on May 7, the court determined
that the instant offense should be enhanced for punishment as
a subsequent offense of driving during revocation. The State
relied upon evidence of a 2006 conviction for driving during
revocation, which had resulted in a sentence to probation. After
a sentencing hearing on May 19, the court sentenced Flores to
2 to 3 years’ imprisonment and revoked his operator’s license
for 15 years from the date of his release.
This timely appeal followed.
ASSIGNMeNTS OF errOr
Flores assigns, consolidated and restated, that the district
court erred in (1) admitting exhibit 1 because it was not rele-
vant, (2) denying his motions to dismiss, (3) finding that there
was sufficient evidence to convict Flores under § 60-6,197.06,
(4) denying his motion to withdraw his not guilty plea, and (5)
imposing an excessive sentence.
STANDArD OF reVIeW
[1] This appeal presents a question of law. When dispositive
issues on appeal present questions of law, an appellate court
has an obligation to reach an independent conclusion irrespec-
tive of the decision of the court below. State v. Head, 276 Neb.
354, 754 N.W.2d 612 (2008).
[2] Withdrawal of a plea is addressed to the discretion of the
trial court, and its ruling will not be disturbed on appeal absent
an abuse of that discretion. State v. Kuhl, 276 Neb. 497, 755
N.W.2d 389 (2008).
An appellate court will not disturb a sentence imposed within
the statutory limits absent an abuse of discretion by the trial
court. State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).
ANALYSIS
Application of § 60-6,197.06.
Flores argues that even if he drove while his license had
been revoked pursuant to a city ordinance, he could not be
534 	17 NebrASKA AppeLLATe repOrTS

convicted of the offense contained in § 60-6,197.06 for driv-
ing under a revoked license, because this section only pro-
scribes driving with a license revoked after being convicted
under a state statute. Flores asserts that he committed no
offense, because § 60-6,197.06 lacks language that declares
to be unlawful driving during a license revocation imposed
as a penalty for violation of a city ordinance. This argument,
which we reject, underlies three of Flores’ assigned errors.
First, Flores argues that exhibit 1—a record of the conviction
which resulted in a revocation of his operator’s license—was
irrelevant. Second, Flores argues that the court erred in deny-
ing his motions to dismiss. Third, he claims the court erred in
convicting him.
At first blush, this argument might appear to have merit
because § 60-6,197.06 does not explicitly refer to license
revocations pursuant to city ordinance. The relevant portion of
§ 60-6,197.06 provides as follows:
Any person operating a motor vehicle on the highways
or streets of this state while his or her operator’s license
has been revoked pursuant to subdivision (4), (5), (6),
(7), (8), (9), or (10) of section 60-6,197.03 or section
60-6,198, or pursuant to subdivision (2)(c) or (2)(d) of
section 60-6,196 or subdivision (4)(c) or (4)(d) of section
60-6,197 as such subdivisions existed prior to July 16,
2004, shall be guilty of a Class IV felony, and the court
shall, as part of the judgment of conviction, revoke the
operator’s license of such person for a period of fifteen
years from the date ordered by the court and shall issue
an order pursuant to section 60-6,197.01.
However, the reference to earlier versions of Neb. rev.
Stat. § 60-6,196 (reissue 2004) requires us to consider the
statutory language in effect at the time Flores committed the
offense, which, in turn, entails an examination of whether
Flores was convicted of a city ordinance enacted in conform-
ance with statute.
Flores’ license had been revoked pursuant to § 60-6,196(2)(c)
as it existed at the time of the offense. At the time of Flores’
offense, § 60-6,196(2)(c) was codified at Neb. rev. Stat.
§ 39-669.07(2)(c) (Cum. Supp. 1990). As a result of enactment
STATe v. FLOreS 	535
Cite as 17 Neb. App. 532

of 1993 Neb. Laws, L.b. 370, the former § 39-669.07(2)(c)
became § 60-6,196(2)(c) without any substantive change to
its language. Section 39-669.07(2)(c) set forth the elements
of third-offense DUI and the term of license revocation which
results from a conviction for the offense—both of which are
the same as those contained in the city ordinance which
Flores violated.
While 	Flores 	was 	not 	directly 	convicted 	of 	violating
§ 39-669.07(2)(c), another provision of § 39-669.07 as it then
existed made violation of a conforming city ordinance a viola-
tion of § 39-669.07(2)(c) for purposes of license revocation.
Section 39-669.07(6), in effect at the time of Flores’ convic-
tion, provided as follows:
Any city or village may enact ordinances in conformance
with this section . . . . Upon conviction of any person of
a violation of such a city or village ordinance, the provi-
sions of this section with respect to the license of such
person to operate a motor vehicle shall be applicable the
same as though it were a violation of this section.
[3] The words of the second sentence of § 39-669.07(6)
must 	be 	given 	their 	plain 	and 	ordinary 	meaning, 	which
requires us to view the ordinance violation as a violation of
§ 39-669.07(2)(c). In the absence of a statutory indication to
the contrary, words in a statute will be given their ordinary
meaning. Loves v. World Ins. Co., 276 Neb. 936, 758 N.W.2d
640 (2008). The ordinary meaning of the phrase “as though it
were” requires us to treat a violation under a city ordinance
enacted in conformance with § 39-669.07 as indistinguish-
able, or as the exact same thing, for purposes of matters
“with respect to the license . . . to operate a motor vehicle.”
Therefore, Flores’ violation of a city ordinance constituted a
violation of § 39-669.07(2)(c) for purposes of license revoca-
tion, so long as the ordinance was enacted “in conformance”
with the applicable statutes.
[4] We reject Flores’ contention that the statutory language
equivalent to § 39-669.07(6) merely constitutes a grant of
power for cities and villages to prosecute DUI’s—“not a legis-
lative determination that a felony conviction may be secured
by convictions deriving from city or village ordinances.” brief
536 	17 NebrASKA AppeLLATe repOrTS

for appellant at 17. This construction would lead to an absurd
result. A penal statute is given a strict construction which is
sensible and prevents injustice or an absurd consequence. State
v. Hochstein and Anderson, 262 Neb. 311, 632 N.W.2d 273
(2001). Flores’ interpretation of § 60-6,197.06 would render
license revocation meaningless for all those in a situation simi-
lar to Flores—i.e., for those whose licenses had been revoked
pursuant to a city ordinance and prior to July 16, 2004. We can
find nothing that suggests that this was the intended result of
§ 60-6,197.06.
Flores also argues that the city ordinance under which he was
convicted was not enacted “in conformance” with § 39-669.07.
Flores states that the city ordinance did not afford him the
opportunity to receive a jury trial—to which he was entitled
pursuant to State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324
(1992), overruled on other grounds, State v. Louthan, 257
Neb. 174, 595 N.W.2d 917 (1999), and which he could have
requested if he had been charged with a violation of the corre-
sponding statute. In Wiltshire, which was decided shortly after
Flores pled guilty to third-offense DUI, the Nebraska Supreme
Court decided that Neb. rev. Stat. § 25-2705 (reissue 1989),
which prevented a criminal defendant charged with violating a
city ordinance from requesting a jury trial, was unconstitutional
as it pertained to third-offense DUI convictions. We note that
Flores does not contend that the ordinance did not otherwise
conform to statute.
The problem with Flores’ contention is that he has not
shown that any city ordinance prevented him from requesting
a jury trial. It appears that Flores believes that § 25-2705 pre-
vented the city of Lincoln from enacting any conforming ordi-
nance. This is not a logical interpretation of § 39-669.07(6).
Section 39-669.07(6) only required that the city enact its
DUI ordinances “in conformance” with statute—which Lincoln
did by enacting an ordinance with the same material provi-
sions as the corresponding state statute. The apparent purpose
of § 39-669.07(6) was to govern the content of ordinances
passed by cities—not the content of legislation passed by the
Legislature. because cities have no control over the Legislature,
they cannot be required to amend statutes that may prevent
STATe v. FLOreS 	537
Cite as 17 Neb. App. 532

conformance. because Flores has not shown us that a city
ordinance impaired his right to a jury trial, we need not further
consider this matter.
[5,6] We also conclude that any further argument directed
to the validity of Flores’ 1993 conviction would constitute a
collateral attack, which is not permitted in the present cir-
cumstances. When a judgment is attacked in a manner other
than by a proceeding in the original action to have it vacated,
reversed, or modified, or by a proceeding in equity to prevent
its enforcement, the attack is a collateral attack. State v. Keen,
272 Neb. 123, 718 N.W.2d 494 (2006). Collateral attacks on
previous proceedings are impermissible unless the attack is
grounded upon the court’s lack of jurisdiction over the parties
or subject matter. Id. Further, pursuant to State v. Louthan,
supra, the only ground on which a DUI conviction may be
collaterally attacked is that it was obtained in violation of the
defendant’s Sixth Amendment right to counsel. Finding no evi-
dence of such situation in the instant case, we conclude that the
1993 conviction is binding for purposes of this appeal.
Motion to Withdraw Not Guilty Plea.
Flores insists that the court erred in denying his motion to
withdraw his earlier plea of not guilty so that he could make a
plea in abatement. We find no merit to this claim. The record
clearly shows that Flores desired to enter a plea in abatement
solely to make the legal argument we have already rejected.
Thus, no prejudice resulted from the court’s action. We find no
abuse of discretion in the court’s denial of the motion.
Excessive Sentence.
Flores argues that the district court’s sentence of 2 to 3 years’
imprisonment and a 15-year license revocation was excessive.
Flores was convicted for a subsequent offense of driving during
revocation, which § 60-6,197.06 assigns as a Class III felony.
A Class III felony is punishable by 1 to 20 years’ imprison-
ment, a $25,000 fine, or both. The 15-year license revocation
was mandatory under § 60-6,197.06 and thus by definition is
not excessive.
[7] Sentences within statutory limits will be disturbed by
an appellate court only if the sentence complained of was an
538 	17 NebrASKA AppeLLATe repOrTS

abuse of judicial discretion. State v. Williams, 276 Neb. 716,
757 N.W.2d 187 (2008). Flores argues that a lesser sentence
would have fulfilled the statutory purposes, but does not iden-
tify the circumstances supporting a lesser penalty. As the State
correctly responds, Flores was not convicted of a drug- or
alcohol-related offense and he disclaimed any need for sub-
stance abuse treatment. Flores fails to articulate any basis upon
which a lesser sentence would deter future instances of driving
under revocation.
Under the circumstances before us, we find no basis for
characterizing a sentence close to the statutory minimum as
excessive. We find no abuse of discretion in the sentence
imposed by the district court.
CONCLUSION
because the statutes require us to treat a violation of a DUI
ordinance as if it were a violation of the equivalent statute for
purposes of license revocation, we conclude that the district
court did not err in admitting exhibit 1 into evidence, denying
Flores’ motion for a directed verdict, and finding Flores guilty
beyond a reasonable doubt. because Flores sought to enter a
plea in abatement to assert a legal argument which we rejected,
we find that the district court did not err in denying Flores’
request. Finally, we conclude that the district court did not
abuse its discretion in sentencing Flores.
A ffirmed.
S tAte of N ebrASkA, Appellee , v .
turNer J. H ylANd , AppellANt .
769 N.W.2d 781
Filed April 21, 2009. 	No. A-08-897.
1. Courts: Appeal and Error. both the district court and a higher appellate
court generally review appeals from the county court for error appearing on
the record.
2. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from
the county court, the district court acts as an intermediate court of appeal, and as
such, its review is limited to an examination of the county court record for error
or abuse of discretion.
STATe v. HYLAND 	539
Cite as 17 Neb. App. 539