State v. Hense

not recall the specifics of her remarks in this regard. From this
record, it cannot be determined with any certainty that any spe-
cific issue pertaining to equalization was presented to the board,
either in the protest forms or the subsequent hearing.
DRi argues that TERC should nevertheless have considered
its equalization arguments under § 77-5016(7), which provides
that TERC “may determine any question raised in the proceeding
upon which an order, decision, determination, or action appealed
from is based” and further provides that TERC “may consider
all questions necessary to determine taxable value of property as
it hears an appeal or cross appeal.” We do not read this permis-
sive statutory language as requiring TERC to consider issues not
presented to a county board of equalization. based on our review
of the record, we conclude that TERC did not err in ruling that
equalization was not an issue on appeal.
V. ConCluSion
For the reasons discussed, we reverse the TERC order with
respect to the valuation of lane’s house, parcel 040001822, and
the feedlot house, parcel 040001830. As to those properties, we
remand the cause to TERC with directions to adjust the 2004
valuations by applying external, or “locational,” depreciation in
the same manner as in 2002 and 2003. in all other respects, we
affirm the TERC order.
A ffirmed iN pArt , ANd iN pArt reverSed
ANd remANded With directioNS.
STATE v. HEnSE 	313
Cite as 276 neb. 313
S tAte of N ebrASkA, AppellANt , v .
gleNN A. heNSe , Appellee .
753 n.W.2d 832
Filed August 1, 2008. 	no. S-07-875.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
2. ____: ____. Statutory language is to be given its plain and ordinary meaning, and
an appellate court will not resort to interpretation to ascertain the meaning of statu-
tory words which are plain, direct, and unambiguous.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

3. Statutes: Legislature: Intent. For a court to inquire into a statute’s legislative
history, the statute in question must be open to construction, and a statute is open
to construction when its terms require interpretation or may reasonably be consid-
ered ambiguous.
4. Statutes. A statute is ambiguous when the language used cannot be adequately
understood either from the plain meaning of the statute or when considered in pari
materia with any related statutes.
5. Words and Phrases. As a general rule, the word “shall” is considered mandatory
and is inconsistent with the idea of discretion.
6. Motor Vehicles: Licenses and Permits: Revocation: Sentences: Probation and
Parole. neb. Rev. Stat. § 60-6,197.06 (Cum. Supp. 2006) requires that a 15-year
revocation be part of any sentence for a conviction under the statute, including a
sentence of probation.
7. Appeal and Error. The purpose of appellate review in error proceedings
is to provide an authoritative exposition of the law to serve as precedent in
future cases.
8. Double Jeopardy: Sentences: Appeal and Error. Even though modifying a
sentence on review does not violate constitutional principles of double jeopardy,
because of the language of neb. Rev. Stat. § 29-2316 (Cum. Supp. 2006), a
nebraska appellate court does not have authority to modify a sentence in an error
proceeding when the defendant has been “placed legally in jeopardy.”
9. Double Jeopardy: Juries: Pleas. Jeopardy attaches (1) in a case tried to a jury,
when the jury is impaneled and sworn; (2) when a judge, hearing a case without a
jury, begins to hear evidence as to the guilt of the defendant; or (3) at the time the
trial court accepts the defendant’s guilty plea.
Appeal from the District Court for lancaster County: pAul d.
merritt , J r ., Judge. Exception sustained.
Gary lacey, lancaster County Attorney, and krista Hendrick
for appellant.
Dennis R. keefe, lancaster County Public Defender, Timothy
M. Eppler, and Valerie R. McHargue, Senior Certified law
Student, for appellee.
heAvicAN, 	C.J., 	W right, 	coNNolly, 	gerrArd, 	S tephAN,
mccormAck, and miller -lermAN, JJ.
miller -lermAN, J.
nATuRE oF CASE
Glenn A. Hense pled guilty to the felony charge of operat-
ing a motor vehicle in a period during which his license had
been revoked. See neb. Rev. Stat. § 60-6,197.06 (Cum. Supp.
314 	276 nEbRASkA REPoRTS

2006). The district court for lancaster County sentenced Hense
to probation for 2 years but did not order a further revocation of
his operator’s license as part of the sentence. The State asserts
that a 15-year revocation is mandatory under § 60-6,197.06.
The State brought this error proceeding pursuant to neb. Rev.
Stat. § 29-2315.01 (Cum. Supp. 2006). The State takes excep-
tion to the district court’s failure to impose a 15-year revo-
cation of Hense’s license. We sustain the State’s exception;
however, because of the limitations placed on the court under
§ 29-2315.01 and neb. Rev. Stat. § 29-2316 (Cum. Supp. 2006),
we conclude that Hense’s sentence is not affected by our deci-
sion in this error proceeding.
STATEMEnT oF FACTS
As a result of a conviction for driving under the influence,
third offense, Hense’s operator’s license was revoked for a
period of 15 years, which will end in 2012. on September 3,
2006, Hense was arrested for operating a motor vehicle during
such period of revocation. Hense was charged with a Class iV
felony, operating a motor vehicle during revocation, in viola-
tion of § 60-6,197.06. on February 13, 2007, he pled guilty to
the charge.
The matter originally came on for sentencing on April 25,
2007. However, the district court continued sentencing until
May 23 in order to allow the court to research and determine
whether it was required under § 60-6,197.06 to revoke Hense’s
operator’s license for 15 years as part of any sentence of proba-
tion that was to be imposed for the current offense of driving
during revocation.
At the sentencing hearing, the court noted that prior to an
amendment which became effective July 14, 2006, § 60-6,197.06
did not include language requiring license revocation as part of
the sentence for a violation of the statute. The 2006 amendment
added the following language:
[T]he 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. Such revo-
cation and order shall be administered upon sentencing,
STATE v. HEnSE 	315
Cite as 276 neb. 313

upon final judgment of any appeal or review, or upon the
date that any probation is revoked.
See 2006 neb. laws, l.b. 925, § 12.
The court concluded that § 60-6,197.06 does not mandate a
15-year revocation as part of an order of probation. in so con-
cluding, the court focused on the last phrase of the statute stating
that revocation is to be administered “upon the date that any pro-
bation is revoked.” The court compared § 60-6,197.06 to another
statute that specifically required that revocation be part of an
order of probation, and the court concluded that the absence of
such language in § 60-6,197.06 indicated that revocation was not
required to be part of an order of probation under § 60-6,197.06.
based on such conclusion, the court sentenced Hense to proba-
tion for a period of 2 years but did not order a revocation of his
operator’s license as part of the sentence.
The State requested and the nebraska Court of Appeals
granted leave to file this appeal pursuant to § 29-2315.01. Hense
sought to bypass the Court of Appeals, and we granted the peti-
tion to bypass.
ASSiGnMEnT oF ERRoR
The State asserts that the district court erred when it failed
to impose a 15-year revocation of Hense’s operator’s license as
part of the sentence for the offense of driving during a period
of revocation. The State claims that such 15-year revocation is
mandatory under § 60-6,197.06.
STAnDARD oF REViEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below. State v. Rodriguez-Torres, 275 neb. 363, 746
n.W.2d 686 (2008).
AnAlYSiS
Revocation Is Mandatory in a Conviction
Under § 60-6,197.06.
The State asserts that the district court erred when it failed
to impose a 15-year revocation of Hense’s operator’s license
as part of his sentence of probation for having committed the
316 	276 nEbRASkA REPoRTS

offense of driving during a period of revocation. The State
claims that revocation is mandatory under § 60-6,197.06 and
that the district court erred when it concluded that § 60-6,197.06
does not require a 15-year revocation when a defendant is sen-
tenced to probation. We agree with the State and conclude that
a 15-year revocation is required to be imposed as part of any
sentence for a conviction under § 60-6,197.06, including a sen-
tence of probation.
[2-4] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. Rodriguez-Torres, supra. For a court
to inquire into a statute’s legislative history, the statute in ques-
tion must be open to construction, and a statute is open to con-
struction when its terms require interpretation or may reasonably
be considered ambiguous. In re Interest of Destiny A. et al.,
274 neb. 713, 742 n.W.2d 758 (2007). A statute is ambiguous
when the language used cannot be adequately understood either
from the plain meaning of the statute or when considered in pari
materia with any related statutes. Id.
[5] As noted above, the language of § 60-6,197.06 at issue
in this case was added to the statute in 2006. The first sentence
of the 2006 amendment provides that “the court shall, as part
of the judgment of conviction [for felony operation of a motor
vehicle during revocation], 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.”
(Emphasis supplied.) As a general rule, the word “shall” is
considered mandatory and is inconsistent with the idea of dis-
cretion. State v. Pathod, 269 neb. 155, 690 n.W.2d 784 (2005).
Therefore, the plain and ordinary meaning of the first sentence
is that it is mandatory that the court revoke the operator’s license
of a person convicted under the statute for 15 years and that the
court does not have discretion as to whether or not it imposes
such revocation. We note that the same sentence provides that
such revocation is to be imposed “as part of the judgment of
conviction.” in a criminal case, the judgment is the sentence.
State v. Vela, 272 neb. 287, 721 n.W.2d 631 (2006). Probation
is a sentence. See, neb. Rev. Stat. § 29-2246(4) (Cum. Supp.
STATE v. HEnSE 	317
Cite as 276 neb. 313

2006) (defining “[p]robation” as a sentence); neb. Rev. Stat.
§ 29-2260(4) (Reissue 1995) (providing that when convicted
offender is not sentenced to imprisonment, court may sentence
him or her to probation). Therefore, the “judgment of conviction”
as used in § 60-6,197.06 encompasses an order imposing proba-
tion. The first sentence of the 2006 amendment to § 60-6,197.06
does not contain language limiting its effect to specific types
of judgments or excluding judgments that include an order of
probation. Examination of the first sentence of § 60-6,197.06,
standing alone, indicates that a 15-year period of revocation is
required to be imposed as part of the sentence of probation for a
violation of § 60-6,197.06.
Although the first sentence of the amendment is clear in itself,
the amendment, when read as whole, may reasonably be consid-
ered ambiguous, because the second sentence of § 60-6,197.06
provides that the revocation “shall be administered upon sen-
tencing, upon final judgment of any appeal or review, or upon
the date that any probation is revoked.” (Emphasis supplied.)
language that the revocation is to be administered upon, inter
alia, “the date that any probation is revoked” could be read to
imply that revocation is not required to be a part of an order
of probation and that instead, revocation is to be imposed only
when probation has been revoked. The statute can reasonably
be considered ambiguous, because although the first sentence of
the amendment states that a 15-year revocation must be part of
a judgment of conviction, the second sentence of the amendment
implies that a 15-year revocation would not necessarily be part
of a judgment of conviction that orders probation, but, rather,
must be administered upon the revocation of probation.
because the amended portion of § 60-6,197.06 is ambiguous,
we look to the legislative history of the amendment. The 2006
amendment was part of l.b. 925, which contained amendments
to various laws relating to driving under the influence (Dui). The
introducer’s Statement of intent stated that the bill sought, inter
alia, “to strengthen and clarify certain portions of nebraska’s
existing Dui and Dui related laws.” Judiciary Committee, 99th
leg., 2d Sess. (Jan. 19, 2006). The Statement of intent specifi-
cally noted that the bill “[r]equires the imposition of a fifteen
(15) year license revocation as part of any sentence for felony
318 	276 nEbRASkA REPoRTS

operation of a Motor Vehicle During Suspension.” Id. At the
committee hearing on l.b. 925, the senator who introduced the
bill commented that the bill “requires the imposition of a 15-
year license revocation as part of any sentence for felony opera-
tion of a motor vehicle during suspension.” Judiciary Committee
Hearing, 99th leg., 2d Sess. 22 (Jan. 19, 2006). The legislative
history therefore evinces the intent that a 15-year revocation was
to be part of “any sentence” imposed under § 60-6,197.96. We
read the broad reference to “any sentence” to include a sentence
of probation, and we find nothing in the legislative history indi-
cating that revocation was not intended to be required when the
sentence for felony operation of a motor vehicle during revoca-
tion is probation.
[6] The first sentence of the amended language of § 60-6,197.06
provides that the court “shall” revoke the defendant’s license
“for a period of fifteen years” as part of the “judgment of con-
viction” under the statute. To the extent the second sentence
of the amendment makes the statute ambiguous, the legislative
history of the amendment indicates that the intent was that a
revocation would be part of “any sentence” for a conviction
under the statute, including a sentence of probation. We con-
clude that § 60-6,197.06 requires that a 15-year revocation be
part of any sentence for a conviction under the statute, including
a sentence of probation. The district court’s conclusion to the
contrary was error. The court in this case did not have discretion
under the statute as to whether or not it could impose such revo-
cation, and therefore the court erred when it failed to impose
a 15-year revocation of Hense’s operator’s license. The State’s
exception to the district court’s sentencing order has merit and
is sustained.
Effect of Ruling.
[7] We have found merit in the State’s exception to the
district court’s sentencing order, and we must now proceed to
determine the effect of our conclusion on the sentence in the
instant case. The State brought the present appeal as an error
proceeding pursuant to § 29-2315.01. Section 29-2315.01 per-
mits the State to take exception to trial court decisions. We have
noted that the purpose of appellate review in error proceedings
STATE v. HEnSE 	319
Cite as 276 neb. 313

is to provide an authoritative exposition of the law to serve as
precedent in future cases. State v. Contreras, 268 neb. 797, 688
n.W.2d 580 (2004). because the State brought this appeal as
an error proceeding, disposition of this case and specifically
whether our reading of § 60-6,197.06 will permit imposition
of a 15-year revocation on Hense is governed by § 29-2316,
which provides:
The judgment of the court in any action taken pursu-
ant to section 29-2315.01 shall not be reversed nor in any
manner affected when the defendant in the trial court has
been placed legally in jeopardy, but in such cases the deci-
sion of the appellate court shall determine the law to gov-
ern in any similar case which may be pending at the time
the decision is rendered or which may thereafter arise in
the state. When the decision of the appellate court estab-
lishes that the final order of the trial court was erroneous
and the defendant had not been placed legally in jeopardy
prior to the entry of such erroneous order, the trial court
may upon application of the prosecuting attorney issue
its warrant for the rearrest of the defendant and the cause
against him or her shall thereupon proceed in accordance
with the law as determined by the decision of the appel-
late court.
[8,9] We noted in State v. Vasquez, 271 neb. 906, 914, 716
n.W.2d 443, 451 (2006), that the “application of § 29-2316
turns on whether the defendant has been placed in jeopardy
by the trial court, not by whether the Double Jeopardy Clause
bars further action.” We therefore concluded that even though
modifying a sentence on review does not violate constitutional
principles of double jeopardy, because of the language of
§ 29-2316, a nebraska appellate court does not have authority
to modify a sentence in an error proceeding when the defendant
has been “placed legally in jeopardy.” Vasquez, supra. Jeopardy
attaches (1) in a case tried to a jury, when the jury is impaneled
and sworn; (2) when a judge, hearing a case without a jury,
begins to hear evidence as to the guilt of the defendant; or (3)
at the time the trial court accepts the defendant’s guilty plea. Id.
in Vasquez, we determined that the defendant had been placed
in legal jeopardy when the trial court accepted her guilty plea
320 	276 nEbRASkA REPoRTS

and that therefore, our decision in the error proceeding could
not affect her sentence.
We note that the reasoning in Vasquez appears to contradict
the reasoning in certain prior cases. in State v. Neiss, 260 neb.
691, 619 n.W.2d 222 (2000), we were required to apply the
language of neb. Rev. Stat. § 29-2319(1) (Reissue 1995), which
is virtually identical to § 29-2316 at issue herein except that
§ 29-2319(1) relates to error proceedings taken from a county
court to a district court pursuant to neb. Rev. Stat. § 29-2317
(Reissue 1995). in Neiss, we ruled that the district court did
not err in an error proceeding before it involving a sentence
enhancement proceeding, when it reversed the judgment of
the county court and remanded the case to the county court to
resentence the defendant. in reaching this conclusion, we stated
that “the protections afforded by § 29-2319 are no greater than
or different from the double jeopardy protections afforded by
the u.S. and nebraska Constitutions.” 260 neb. at 701, 619
n.W.2d at 230. Given our statement, we reasoned that because
resentencing was not barred by the Double Jeopardy Clause, it
was also not barred by § 29-2319.
We based the reasoning in Neiss in part on two earlier cases
applying § 29-2316, State v. Wren, 234 neb. 291, 450 n.W.2d
684 (1990), and State v. Schall, 234 neb. 101, 449 n.W.2d 225
(1989). in both Wren and Schall, brought to this court by the
State as error proceedings pursuant to § 29-2315.01, this court
determined that because double jeopardy considerations do
not prohibit review of a sentence, the defendants in each case
had not been “placed legally in jeopardy” within the meaning
of § 29-2316 with respect to the sentence that was at issue
imposed and that therefore, § 29-2316 did not prohibit an appel-
late court from affecting the sentence imposed. in Wren, this
court remanded the cause to the district court for resentencing
because the district court lacked statutory authority to impose
the sentence it had imposed. in Schall, this court remanded the
cause to the district court to reinstate and affirm a sentence that
the county court had imposed and that the district court had
erroneously reversed.
in State v. Vasquez, 271 neb. 906, 716 n.W.2d 443 (2006),
we did not cite to or discuss Neiss, Wren, Schall, or other
STATE v. HEnSE 	321
Cite as 276 neb. 313

similar cases. However, our statement in Vasquez that “the
application of § 29-2316 turns on whether the defendant has
been placed in jeopardy by the trial court, not by whether
the Double Jeopardy Clause bars further action,” 271 neb. at
914, 716 n.W.2d at 451, demonstrates that we considered and
rejected equating the phrase “placed legally in jeopardy” in
§ 29-2316 with constitutional double jeopardy, and appears to
contradict our earlier statement in Neiss that “the protections
afforded by § 29-2319 are no greater than or different from the
double jeopardy protections afforded by the u.S. and nebraska
Constitutions,” 260 neb. at 701, 619 n.W.2d at 230, as well as
similar statements in Wren and Schall regarding the applica-
tion of § 29-2316. Although jurisprudence related to double
jeopardy may inform determinations as to whether a defendant
has been “placed legally in jeopardy” under § 29-2316, see
State v. Contreras, 268 neb. 797, 688 n.W.2d 580 (2004),
and State v. Falcon, 260 neb. 119, 615 n.W.2d 436 (2000),
we believe, consistent with Vasquez, that the analysis under
§ 29-2316 is not a double jeopardy analysis, but instead is a
question of whether further action is permissible under the
terms of § 29-2316. of course, an appellate ruling must not
violate double jeopardy protections, but the fact that double
jeopardy is not violated does not necessarily mean that further
action is permitted by § 29-2316.
Absent specific statutory authorization, the State, as a general
rule, has no right to appeal an adverse ruling in a criminal case.
Vasquez, supra; In re Interest of Sean H., 271 neb. 395, 711
n.W.2d 879 (2006). 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.
See State v. Banes, 268 neb. 805, 688 n.W.2d 594 (2004). in
the instant case, the State appealed the district court’s deci-
sion under § 29-2315.01, which provides one such exception.
Another exception is found in neb. Rev. Stat. § 29-2320 (Cum.
Supp. 2006), under which the prosecuting attorney may appeal
a sentence imposed in a felony case when he or she reasonably
believes the sentence is excessively lenient. under neb. Rev.
Stat. § 29-2323 (Reissue 1995), the legislature has specifically
granted the court authority to set aside an excessively lenient
322 	276 nEbRASkA REPoRTS

sentence and either impose a greater sentence or remand the
cause. The State chose not to proceed under the excessively
lenient statutes in this felony matter. We must, therefore, analyze
the effect of our ruling on Hense’s sentence under § 29-2315.01
and the related provision in § 29-2316.
Given the statutory constraints attendant to our analysis,
the inquiry is whether the defendant has been “placed legally
in jeopardy,” as that phrase is used in the error proceeding
statute § 29-2316. if the defendant has been placed legally in
jeopardy, then § 29-2316 requires that the judgment, of which
a sentence is a part, “shall not be reversed nor in any manner
affected” by the decision of the appellate court. For complete-
ness, we note that in § 29-2316, the statute does permit further
proceedings at the trial level, but this is limited to “[w]hen the
decision of the appellate court establishes that the final order
of the trial court was erroneous and the defendant had not been
placed legally in jeopardy prior to the entry of such erroneous
order . . . .” (Emphasis supplied.) This language in § 29-2316
anticipates a circumstance which is unlike the instant case.
in our case, jeopardy attached prior to an erroneous ruling,
and further proceedings affecting the judgment are not proper
under § 29-2316.
Given our reasoning that the effect of our ruling in the instant
case is controlled by the strictures of the error proceeding stat-
utes, and noting parenthetically that our reading of § 29-2316
while not performed under a double jeopardy analysis does not
offend double jeopardy protections, we conclude that our analy-
sis in State v. Vasquez, 271 neb. 906, 716 n.W.2d 443 (2006),
was a proper statement of the law. We therefore determine that
our decision in Vasquez overruled State v. Neiss, 260 neb. 691,
619 n.W.2d 222 (2000); State v. Wren, 234 neb. 291, 450
n.W.2d 684 (1990); State v. Schall, 234 neb. 101, 449 n.W.2d
225 (1989); and other similar cases to the extent the reasoning
in those cases differed from that in Vasquez.
Similar to Vasquez, in the present case, jeopardy attached
when the district court accepted Hense’s guilty plea. because
Hense was “placed legally in jeopardy,” under § 29-2316, our
decision in this error proceeding cannot affect the judgment of
the district court, including the sentence imposed. The decision
STATE v. HEnSE 	323
Cite as 276 neb. 313

herein determines the law to govern in any similar case which
may be pending at the time this decision is rendered or which
may thereafter arise in the state, but it does not affect the sen-
tence imposed on Hense.
ConCluSion
We conclude that § 60-6,197.06 requires that a 15-year revoca-
tion be part of any sentence for a conviction for felony operation
of a motor vehicle during revocation under that statute, including
a sentence of probation. The court in this case therefore erred
when it failed to impose a 15-year revocation; however, given
the statutory constraints of § 29-2316, Hense’s sentence is not
affected by our decision in this error proceeding.
exceptioN SuStAiNed .
gerrArd, J., concurring in part, and in part dissenting.
While i recognize the tension between State v. Vasquez1 and
the line of cases preceding it,2 our premise in Vasquez (which
i now believe to be mistaken) is not sufficient justification for
upsetting nearly 20 years of well-settled statutory construction.
Therefore, while i agree with the majority’s conclusion that the
district court’s sentencing order was erroneous, i dissent from
the majority’s conclusion that the defendant cannot be resen-
tenced pursuant to neb. Rev. Stat. §§ 29-2315.01 and 29-2316
(Cum. Supp. 2006).
Section 29-2316 provides that the judgment of the district
court, in an error proceeding brought by the State, “shall not
be reversed nor in any manner affected when the defendant in
the trial court has been placed legally in jeopardy.”3 in State v.
Neiss,4 we explained our basis for concluding that the protec-
tions afforded by that language “are no greater than or different
1 State v. Vasquez, 271 neb. 906, 716 n.W.2d 443 (2006).
2 See, State v. Griffin, 270 neb. 578, 705 n.W.2d 51 (2005); State v. Neiss,
260 neb. 691, 619 n.W.2d 222 (2000); State v. Wren, 234 neb. 291,
450 n.W.2d 684 (1990); State v. Schall, 234 neb. 101, 449 n.W.2d 225
(1989).
3 See, also, neb. Rev. Stat. § 29-2319 (Cum. Supp. 2006) (containing identi-
cal language).
4 Neiss, supra note 2, 260 neb. at 701, 619 n.W.2d at 230.
324 	276 nEbRASkA REPoRTS

from the double jeopardy protections afforded by the u.S. and
nebraska Constitutions.” We relied on our construction of that
language in State v. Schall5 and State v. Wren,6 and invoked the
familiar proposition that where a statute has been judicially
construed and that construction has not evoked an amendment,
it will be presumed that the legislature has acquiesced in the
court’s determination of the legislature’s intent.7 We found
nothing in the legislative history or the actions of the legislature
to undermine our established rule that the phrase “‘placed
legally in jeopardy’” was intended only “to prevent offenders
from being subjected to double jeopardy.”8 And we expressly
rejected the argument, now endorsed by the majority, that the
statutory language required analysis under something other than
double jeopardy principles.9
That conclusion sensibly permitted the adjustment of a sen-
tence that had been based on an incorrect legal ruling, such as
in this case. As the u.S. Supreme Court has explained, double
jeopardy protections are inapplicable to sentencing proceedings,
because the determinations at issue do not place a defendant in
jeopardy for an offense.10 And although the majority suggests
that the State could have appealed the defendant’s sentence in
this case pursuant to neb. Rev. Stat. § 29-2320 (Cum. Supp.
2006), we have explained that a prosecutor’s authority under
that section is limited to “cases where the prosecutor reasonably
believes that the sentence is excessively lenient” and “does not
extend to the appeal of a sentence that is not in conformity with
the law.”11 our decision in Neiss, and the cases preceding it, per-
suasively concluded that the legislature intended for erroneous
5 Schall, supra note 2.
6 Wren, supra note 2.
7 Neiss, supra note 2.
8 Id. at 701, 619 n.W.2d at 230, quoting §§ 29-2316 and 29-2319.
9 Id.
10 Monge v. California, 524 u.S. 721, 118 S. Ct. 2246, 141 l. Ed. 2d 615
(1998).
11 Glantz v. Hopkins, 261 neb. 495, 500, 624 n.W.2d 9, 13 (2001).
STATE v. HEnSE 	325
Cite as 276 neb. 313

sentences to be correctible through error proceedings, consistent
with double jeopardy principles.
nothing that has happened in the legislature since Neiss
undermines its reasoning. in fact, § 29-2316 has been amended
three times since our decision in Schall, and each time, the
statute has been repealed and reenacted without changing the
language at issue.12 Generally, it is presumed that when a statute
has been construed by this court, and the same is substantially
reenacted, the legislature gave to the language the significance
previously accorded to it by this court.13 if the legislature had
disagreed with our construction of the statute, it could have
changed the language at issue instead of reenacting it.
For example, in 2002, §§ 29-2315.01 and 29-2316 only per-
mitted a “county attorney” to take exception to a decision of the
trial court.14 So, in State v. Jones,15 we held that those statutes
only applied to county attorneys, and did not authorize an error
proceeding by a city attorney representing the State. in the next
legislative session, the legislature fixed the problem by amend-
ing §§ 29-2315.01 and 29-2316 to authorize an error proceeding
by any “prosecuting attorney.”16 The legislature expressly clari-
fied that a “prosecuting attorney” includes a city attorney.17 And
the legislature reenacted the restriction on affecting a judgment
after the defendant has been placed “legally in jeopardy,”18 while
presumably aware of what we had construed that language to
mean in Neiss, Wren, and Schall.19
if we had somehow misinterpreted § 29-2316 all that time,
the legislature could have changed it. The legislature still
could. Admittedly, the doctrine of legislative acquiescence is not
12 See, 2003 neb. laws, l.b. 17; 1992 neb. laws, l.b. 360; 1991 neb. laws,
l.b. 732.
13 Brown v. Kindred, 259 neb. 95, 608 n.W.2d 577 (2000).
14 See neb. Rev. Stat. § 29-2315.01 and 29-2316 (Reissue 1995).
15 See State v. Jones, 264 neb. 812, 652 n.W.2d 288 (2002).
16 2003 neb. laws, l.b. 17.
17 See, id.; neb. Rev. Stat. § 29-2315 (Cum. Supp. 2006).
18 2003 neb. laws, l.b. 17, §§ 12 and 14.
19 See Neiss, supra note 2.
326 	276 nEbRASkA REPoRTS

without limitations.20 but it, and the doctrine of stare decisis,
are entitled to great weight—particularly in cases involving
statutory interpretation. Absent a reason why our decisions in
Griffin, Neiss, Wren, and Schall21 were manifestly wrong,22 i
would continue to follow them, as the legislature has done for
the better part of two decades. i would remand this cause for
resentencing, and dissent to the extent that the majority opinion
holds otherwise.
heAvicAN, C.J., and S tephAN, J., join in this concurrence
and dissent.
20 See, e.g., Bronsen v. Dawes County, 272 neb. 320, 722 n.W.2d 17 (2006).
21 Griffin, supra note 2; Neiss, supra note 2; Wren, supra note 2; Schall, supra
note 2.
22 See Bronsen, supra note 20.
STATE v. HEnSE 	327
Cite as 276 neb. 313