State v. Thompson ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/15/2016 09:06 AM CDT
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STATE v. THOMPSON
Cite as 294 Neb. 197State of Nebraska, appellee, v.
Robert C. Thompson, appellant.
___ N.W.2d ___
Filed July 15, 2016. No. S-15-971.
1. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
2. Statutes: Legislature: Intent. The fundamental objective of statutory
interpretation is to ascertain and carry out the Legislature’s intent.
3. Criminal Law: Statutes: Legislature: Intent. In reading a penal stat-
ute, a court must determine and give effect to the purpose and intent of
the Legislature as ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.
4. Statutes. To the extent there is a conflict between two statutes, the spe-
cific statute controls over the general statute.
5. ____. A statute may be repealed by implication if a new law contains
provisions which are contrary to, but do not expressly repeal, the provi-
sions of the former law.
6. ____. A legislative act which is complete in itself and is repugnant to or
in conflict with a prior law repeals the prior law by implication to the
extent of the repugnancy or conflict. However, repeals by implication
are not favored.
7. ____. A statute will not be considered repealed by implication unless the
repugnancy between the new provision and the former statute is plain
and unavoidable.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
Chelsey R. Hartner, Chief Deputy Madison County Public
Defender, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
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STATE v. THOMPSON
Cite as 294 Neb. 197Wright, Connolly, Miller-Lerman, Cassel, Stacy, and
K elch, JJ.
Wright, J.
NATURE OF CASE
Robert C. Thompson was convicted in the district court for
Madison County, Nebraska, of driving under the influence
(DUI), third offense, with a blood alcohol concentration of
.15 or greater, in violation of Neb. Rev. Stat. § 60-6,197.03(6)
(Cum. Supp. 2014). He was sentenced to a period of 24 months’
probation and was ordered to immediately serve 60 days in the
county jail as a condition of his probation. Thompson appeals,
asserting that the district court erred in imposing a jail term
as a condition of probation. For the reasons set forth below,
we affirm.
BACKGROUND
On November 30, 2014, Thompson was involved in a motor
vehicle accident in which he struck another vehicle from
behind. He was ultimately arrested and charged with DUI,
third offense, with a blood alcohol concentration of .15 or
greater, in violation of § 60-6,197.03(6). Thompson pled guilty
as charged. Following an enhancement hearing, Thompson’s
conviction was enhanced to a third offense, making it a
Class IIIA felony.
At sentencing, the parties agreed that probation would be
appropriate but disagreed as to whether a jail term could be
imposed as a condition of probation. Thompson argued that
a jail term could no longer be imposed as a condition of
probation for any felony because 2015 Neb. Laws, L.B. 605,
removed the provision in Neb. Rev. Stat. § 29-2262 (Supp.
2015) that previously allowed up to 180 days in jail as a
condition of probation for felony offenses. The State acknowl-
edged the amendment to § 29-2262, but noted that a jail
term was arguably still available for a felony DUI, because
§ 60-6,197.03(6), which is the more specific statute, expressly
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STATE v. THOMPSON
Cite as 294 Neb. 197requires that a jail term be imposed as a condition of probation
for a felony DUI.
The district court agreed with the State and found that a jail
term of 60 days was required under § 60-6,197.03. It imposed
a period of 24 months’ probation in the Specialized Substance
Abuse Supervision program with various conditions, includ-
ing 60 days’ jail time, a $1,000 fine, and a 10-year license
revocation. Thompson appeals.
ASSIGNMENT OF ERROR
Thompson assigns that the district court erred in imposing
a jail term as a condition of his probation, as that is no longer
permissible under § 29-2262.
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.1
ANALYSIS
This appeal presents an issue of statutory interpretation. The
question before us is whether a jail term may be imposed as
a condition of probation for a felony DUI. Thompson argues
that a court cannot impose a jail term as a condition of proba-
tion for any felony offense, including a felony DUI, because
L.B. 605 removed the provision in § 29-2262 that previously
allowed up to 180 days in jail as a condition of probation for
felony offenses.
We note that the amendments made by L.B. 605 became
effective on August 30, 2015, which was after Thompson com-
mitted the present offense but before he was sentenced. This
begs the question whether the amendments to § 29-2262 apply
retroactively to this case. Most of the amendments in L.B. 605
are not retroactive, as set forth in Neb. Rev. Stat. § 28-116(Supp. 2015). However, the State concedes, and we agree,
1
State v. Mendoza-Bautista, 291 Neb. 876, 869 N.W.2d 339 (2015).
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STATE v. THOMPSON
Cite as 294 Neb. 197that the changes made to § 29-2262 do apply in this case,
because Thompson was sentenced after August 30, 2015.2
Thus, we must analyze this case in light of the amendments
to § 29-2262.
Prior to L.B. 605, § 29-2262 provided, in relevant part:
(2) The court may, as a condition of a sentence of pro-
bation, require the offender:
....
(b) To be confined periodically in the county jail or to
return to custody after specified hours but not to exceed
(i) for misdemeanors, the lesser of ninety days or the
maximum jail term provided by law for the offense and
(ii) for felonies, one hundred eighty days.3
As part of L.B. 605, the Legislature removed the provision
relating to felony offenses but left the provision relating to
misdemeanors intact.4 Thus, Thompson argues that imposing a
jail term as a condition of probation for a felony offense is no
longer permissible under § 29-2262.
The State argues that a jail term is still available as a condi-
tion of probation for a felony DUI because § 60-6,197.03(6),
which sets forth the penalty for third-offense aggravated DUI,
a Class IIIA felony, is more specific and therefore controls
over § 29-2262, which is the more general probation stat-
ute that applies to all offenses. Section 60-6,197.03 provides
as follows:
Any person convicted of a violation of section 60-6,196
[DUI of alcohol or drugs] or 60-6,197 [refusal to submit
to chemical test] shall be punished as follows:
2
See Neb. Rev. Stat. § 83-1,135.02(2) (Supp. 2015) (stating that “[i]t is
the intent of the Legislature that the changes made to sections 29-2262
. . . apply to all committed offenders under sentence, on parole, or on
probation on August 30, 2015, and to all persons sentenced on and after
such date”).
3
§ 29-2262(2) (Cum. Supp. 2014).
4
See § 29-2262(2)(b) (Supp. 2015).
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STATE v. THOMPSON
Cite as 294 Neb. 197....
(6) If such person has had two prior convictions and,
as part of the current violation, had a concentration of
fifteen-hundredths of one gram or more by weight of
alcohol per one hundred milliliters of his or her blood
or fifteen-hundredths of one gram or more by weight of
alcohol per two hundred ten liters of his or her breath
or refused to submit to a test as required under section
60-6,197, such person shall be guilty of a Class IIIA
felony . . . . The court shall also sentence such person
to serve at least one hundred eighty days’ imprison-
ment in the city or county jail or an adult correctional
facility.
If the court places such person on probation or sus-
pends the sentence for any reason, the court shall, as
one of the conditions of probation or sentence suspen-
sion, . . . include, as conditions, the payment of a one-­
thousand-dollar fine, confinement in the city or county
jail for sixty days, and, upon release from such confine-
ment, the use of a continuous alcohol monitoring device
and abstention from alcohol use at all times for no less
than sixty days.
(Emphasis supplied.)
[2-4] The fundamental objective of statutory interpretation
is to ascertain and carry out the Legislature’s intent.5 In read-
ing a penal statute, a court must determine and give effect
to the purpose and intent of the Legislature as ascertained
from the entire language of the statute considered in its plain,
ordinary, and popular sense.6 To the extent there is a conflict
between two statutes, the specific statute controls over the
general statute.7
5
See Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).
6
State v. McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015).
7
State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
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STATE v. THOMPSON
Cite as 294 Neb. 197We agree with the State that § 60-6,197.03 is the more spe-
cific statute and that it plainly requires confinement in jail for
60 days as a condition of probation for this offense. Thompson
concedes that § 60-6,197.03 is the more specific statute, but
argues that by amending § 29-2262, the Legislature implicitly
repealed the provision in § 60-6,197.03(6) which required 60
days in jail as a condition of probation.
[5-7] A statute may be repealed by implication if a new law
contains provisions which are contrary to, but do not expressly
repeal, the provisions of the former law.8 A legislative act
which is complete in itself and is repugnant to or in conflict
with a prior law repeals the prior law by implication to the
extent of the repugnancy or conflict.9 However, repeals by
implication are not favored.10 A statute will not be considered
repealed by implication unless the repugnancy between the
new provision and the former statute is plain and unavoid-
able.11 In determining whether the new enactment is repugnant,
we look at the new enactment for any indication of an evident
legislative intent to repeal the former statute.12
We find no indication that the Legislature intended to repeal
the relevant portion of § 60-6,197.03(6) when it amended
§ 29-2262. In fact, the Legislature amended other portions
of § 60-6,197.03 as part of L.B. 605, but did not remove the
language in subsection (6) requiring 60 days in jail as a condi-
tion of probation for this offense. If the Legislature intended
to remove that requirement, it could have easily done so when
it amended the other portions of the statute in L.B. 605. Its
failure to do so evidences a clear intent to retain such require-
ment, rather than to implicitly repeal it.
8
State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995).
9
State v. Retzlaff, 223 Neb. 811, 394 N.W.2d 295 (1986).
10
Id.11
Id.12
State v. Null, supra note 8.
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STATE v. THOMPSON
Cite as 294 Neb. 197Additionally, we find no repugnancy between these two
statutes, because the sentencing provisions in § 60-6,197.03
apply only to convictions for DUI and refusal to submit to
a chemical test, whereas § 29-2262 sets forth the various
conditions of probation that may generally be imposed for
all offenses. For that reason, Thompson’s reliance on State v.
Retzlaff13 is misplaced.
The issue in Retzlaff was whether Neb. Rev. Stat.
§ 39-669.20 (Reissue 1984), which formerly contained the
penalty for motor vehicle homicide, was implicitly repealed
by the Legislature’s subsequent enactment of Neb. Rev. Stat.
§ 28-306 (Reissue 1985), which codified the offense of motor
vehicle homicide and set forth the applicable penalty. We
held that the enactment of § 28-306 constituted an implicit
repeal of § 39-669.20, noting that the repugnancy between the
two statutes was “plain and unavoidable” because they pre-
scribed different penalties for the same crime.14 On the other
hand, the two statutes at issue here do not prescribe different
penalties for the same crime and are not otherwise repug-
nant. Therefore, we reject Thompson’s argument of repeal
by implication.
CONCLUSION
For the reasons set forth herein, we find no error in the
district court’s ordering Thompson to serve a period of 60
days’ jail time as a condition of his sentence of probation in
the Specialized Substance Abuse Supervision program for his
conviction of DUI, third offense, with a blood alcohol concen-
tration of .15 grams or greater, a Class IIIA felony.
A ffirmed.
Heavican, C.J., not participating.
13
State v. Retzlaff, supra note 9.
14
Id. at 813, 394 N.W.2d at 297.