State v. Macek

proceed in this fashion to consider each of the crimes in
sequence until you find the defendant guilty of one of the
crimes or find (him, her) not guilty of all of them.55
Neither party requested that this instruction be given in this
case. Although we find no constitutional infirmity or other error
in the step instruction that was given, we conclude that NJI2d
Crim. 3.1 provides a clearer and more concise explanation of
the process by which the jury is to consider lesser-included
offenses, and we encourage the trial courts to utilize the current
pattern instruction in circumstances where a step instruction on
lesser-included homicide offenses is warranted.56
III. CONCLUSION
For the reasons discussed, we conclude that Goodwin’s
assignments of error are without merit, and we affirm the judg-
ment of the district court.
A ffirmed.
55 NJI2d Crim. 3.1B.
56 See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
StAte v. mACek 	967
Cite as 278 Neb. 967
StAte of NebrASkA, Appellee , v.
mArk A. mAcek , AppellANt.
774 N.W.2d 749
Filed November 20, 2009. 	No. S-08-1196.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
2. 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.
3. Sentences: Prior Convictions: Drunk Driving: Time. Under Neb. Rev. Stat.
§ 60-6,197.02(1)(a) (Reissue 2008), a conviction may be counted as a prior con-
viction for purposes of enhancement if it is for a violation that was committed
within the previous 12 years.
4. Sentences: Prior Convictions: Proof. In order to prove a prior conviction for
purposes of sentence enhancement, the State has the burden to prove the fact of
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

prior convictions by a preponderance of the evidence and the trial court deter-
mines the fact of prior convictions based upon the preponderance of the evi-
dence standard.
5. Sentences: Prior Convictions: Due Process. A prior conviction can be chal-
lenged if the conviction was obtained in violation of the due process requirements
of the state and federal Constitutions.
Appeal from the District Court for Lancaster County: Jodi
NelSoN, Judge. Affirmed.
Peter k. Blakeslee for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
H eAvicAN, 	c.J., 	WrigHt, 	coNNolly, 	gerrArd, 	StepHAN,
mccormAck, and miller-lermAN, JJ.
H eAvicAN, C.J.
INtRODUCtION
mark A. macek appeals his guilty plea and conviction in the
Lancaster County District Court for driving under the influence
of alcohol, fourth offense. macek claims that two of his three
prior convictions were improperly used to enhance his sentence
because they were not final, appealable orders. We affirm the
decision of the district court.
BACkGROUND
On November 22, 2007, macek was stopped and cited for
driving under the influence of alcohol (DUI) and refusing to
submit to a chemical test. On June 9, 2008, macek pled guilty
to DUI in exchange for the State’s agreement to drop the
charge of refusal to submit to a chemical test. the trial court
found that macek understood his rights and the charges against
him and that he freely, voluntarily, and knowingly entered a
plea of guilty.
macek objected to the use of two of his certified prior
convictions for DUI on the ground that they were not final
orders because they lacked a file stamp. the trial court found
that his objection was an impermissible collateral attack on
his prior convictions and accepted the certified copies into
evidence. the trial court then found that the certified convic-
tions were sufficient for enhancement and convicted macek
968 	278 NeBRASkA RePORtS

of fourth-offense DUI. At the sentencing hearing on July 25,
2008, macek was sentenced to 180 days in jail and ordered
to pay costs, and his operator’s license was suspended for 15
years. macek appeals.
ASSIGNmeNt OF eRROR
macek assigns that the district court erred when it accepted
two of his prior convictions for enhancement purposes because
they lacked file stamps.
StANDARD OF ReVIeW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court.1
ANALYSIS
macek argues that the district court erred in using two of
his prior convictions for DUI to enhance his sentence because
those two prior convictions lacked a file stamp. macek largely
relies upon Neb. Rev. Stat. § 25-1301(3) (Reissue 2008), and
State v. Estes.2 Section 25-1301(3) provides:
the entry of a judgment, decree, or final order occurs
when the clerk of the court places the file stamp and date
upon the judgment, decree, or final order. For purposes
of determining the time for appeal, the date stamped
on the judgment, decree, or final order shall be the date
of entry.
to support his claim, macek cites to Estes, in which this court
stated that a prior conviction still pending on appeal could not
be used for enhancement purposes.3 macek claims that without
a file stamp, a prior conviction is not final, much like the prior
conviction in Estes. macek also points to State v. Brown,4 in
which the Court of Appeals refused to accept jurisdiction of an
1 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707
(2006).
2 State v. Estes, 238 Neb. 692, 472 N.W.2d 214 (1991).
3 Id.
4 State v. Brown, 12 Neb. App. 940, 687 N.W.2d 203 (2004).
StAte v. mACek 	969
Cite as 278 Neb. 967

appeal where there was no file stamp on the final order. Both
cases are distinguishable.
In Estes, the prior conviction was still on appeal, and Brown
involved a defendant who was currently appealing his convic-
tion. In contrast, the two prior convictions in this case were
used to enhance macek’s 2006 conviction for third-offense
DUI, and both macek and the State agree that the convictions
took place in 2002. the waivers of rights contained in both
prior convictions were entered in November 2002 and bear
macek’s signature. macek does not contend that either of the
2002 prior convictions are currently on appeal or that he would
be able to appeal the convictions at this time.
[2] the State argues that macek is making an impermissible
collateral attack on his prior convictions, and we agree. We
have stated that a defendant may not collaterally attack his or
her prior conviction. In State v. Keen,5 a defendant argued that
a prior conviction could not be used to enhance his sentence
for DUI. the defendant pled guilty to a DUI in 1998, under an
ordinance that was later invalidated. We stated that “[c]ollateral
attacks on previous proceedings are impermissible unless the
attack is grounded upon the [trial] court’s lack of jurisdiction
over the parties or subject matter.”6 therefore, even though the
defendant’s conviction under the invalid ordinance would likely
have been overturned had he filed a direct appeal, it was suf-
ficient for enhancement purposes.
[3] State v. Royer7 involved a defendant who asserted that
his prior conviction was invalid for the purpose of enhanc-
ing his sentence. In that case, a file-stamp date on a prior
conviction was illegible. First, we found that the defendant
was making an impermissible collateral attack on his prior
conviction because it was not based on jurisdiction. Second,
we found that other dates on the document demonstrated that
the final order was entered on April 30, 2002. Under Neb. Rev.
Stat. § 60-6,197.02(1)(a) (Reissue 2008), a conviction may be
5 State v. Keen, 272 Neb. 123, 718 N.W.2d 494 (2006).
6 Id. at 130, 718 N.W.2d at 500.
7 State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008).
970 	278 NeBRASkA RePORtS

counted as a prior conviction for purposes of enhancement if
it is for a violation that was committed within the previous 12
years. the partial file stamp showed that the conviction took
place within 12 years. therefore, the prior conviction was
properly used for enhancement.
[4,5] In order to prove a prior conviction for purposes of
sentence enhancement, “the State has the burden to prove the
fact of prior convictions by a preponderance of the evidence
and the trial court determines the fact of prior convictions
based upon the preponderance of the evidence standard.”8
macek does not argue that the State did not prove his prior con-
victions by a preponderance of the evidence, only that the lack
of a file stamp prevents the prior convictions from being final
orders. the only other basis upon which a prior conviction can
be challenged is the claim that the conviction was obtained
in violation of the due process requirements of the state and
federal Constitutions.9 macek does not argue that his prior
convictions were obtained in violation of due process require-
ments. macek’s appeal is therefore an impermissible attack on
his prior convictions.
CONCLUSION
We conclude that macek is making an impermissible col-
lateral attack on his prior DUI convictions and that those prior
convictions were properly used for enhancement purposes.
macek’s assignment of error is without merit, and the judgment
of the district court is affirmed.
A ffirmed.
8 State v. Hall, 270 Neb. 669, 674, 708 N.W.2d 209, 214 (2005).
9 See State v. Royer, supra note 7.
StAte v. mACek 	971
Cite as 278 Neb. 967