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In State v. Peiffer, 212 Neb. 864, 326 N.W.2d 844 (1982), this court dealt with this precise question and held that the new penalties were not applicable to offenses committed prior to the effective date of the act. For this reason we believe that the provisions of 39-669.
Summary of this case from State v. TongeOpinion
No. 82-184.
Filed November 24, 1982.
Statutes: Appeal and Error. In the absence of a clear expression of legislative intent, this court is not inclined to interpret a statute to apply to matters other than clearly expressed within the statute itself.
Appeal from the District Court for Lancaster County: DALE E. FAHRNBRUCH, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and Jerry Soucie, for appellant.
Paul L. Douglas, Attorney General, and Dale D. Brodkey, for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ.
We now address the question reserved in our earlier opinion found ante p. 299, 322 N.W.2d 445 (1982), reexamine the rationale of that opinion, overrule same, and affirm the sentence imposed by the trial court.
At the time of our earlier opinion the issue reserved was thought to be only whether we were to permanently revoke defendant's driving privileges. It develops that the question is broader, namely, whether the penalty for third offense drunken driving, as amended by 1982 Neb. Laws, L.B. 568, should be applied in its entirety to the defendant, whose sentence under the repealed statute was on appeal on the date L.B. 568 became effective (July 17, 1982).
Prior to the enactment of L.B. 568 the maximum punishment was 5 years' imprisonment, a $10,000 fine, or both such imprisonment and fine, together with revocation of the offender's license to drive for a period of 1 year from and after the date of his discharge from prison. Neb. Rev. Stat. § 39-669.07 (Reissue 1978). As noted in our earlier opinion defendant was sentenced thereunder to imprisonment for not less than 1 nor more than 2 years, and his license was revoked for 1 year from and after such confinement. No fine was imposed. L.B. 568 provides for a minimum of 3 and a maximum of 6 months' imprisonment. Further, the act imposes a $500 fine and requires that the offender's license be permanently revoked and that he be ordered never to drive again.
The essential question in this case is whether L.B. 568 was intended by the Legislature to mitigate the penalty for the offense of driving while intoxicated, third offense.
Viewed in the light of the maximum incarceration time, no serious question could exist that the penalty was reduced and thus mitigated, apparently calling into play the doctrine first enunciated by this court in State v. Randolph, 186 Neb. 297, 301-02, 183 N.W.2d 225, 228 (1971), cert. denied 403 U.S. 909, 91 S.Ct. 2217, 29 L.Ed.2d 686, where we said: "[W]e believe the better rule to be and we therefore hold that where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise."
However, viewed in the light of the permanent suspension of driving privileges, the scene becomes cloudy. Whether viewed as a limited property right, or as a privilege, the fact is that the lifetime suspension is a terrible burden (albeit deserved) on the offender.
We note that a law providing an increase in penalty for a crime after judgment, if applied to an offense under the prior law, is generally considered void as an ex post facto law. A serious question exists whether the increase in the penalty of one of the consequences of a criminal act punishable by multiple consequences is thereby rendered non ex post facto by the reduction of one of the consequences.
The judicial doctrine announced in Randolph, supra, is bottomed on the premise that the Legislature intended the new punishment, which it now feels fits the crime, to apply whenever constitutionally possible. State v. Randolph, supra, quoting with approval In Re Estrada, 63 Cal.2d 740, 408 P.2d 948, 48 Cal.Rptr. 172 (1965); People v. Oliver, 1 N.Y.2d 152, 134 N.E.2d 197, 151 N.Y.S.2d 367 (1956); and State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967). See, also, State v. Crisp, 195 Neb. 833, 241 N.W.2d 129 (1976); State v. Trowbridge, 194 Neb. 582, 234 N.W.2d 598 (1975); State v. Country, 194 Neb. 570, 234 N.W.2d 593 (1975).
We have not in the past been called upon to discern legislative intent with respect to the retroactivity of a multipenalty punishment which offsets a reduced period of maximum incarceration against the permanent revocation of driving privileges and the imposition of a fine. We have, however, held that the Randolph doctrine does not apply where the new statute does something other than merely lessen the punishment, but instead repeals the old statute and defines new categories of crime. State v. Crisp, supra. In the instant matter a new class of misdemeanor was created and the old statute repealed.
We have found no specific statement of intent in the legislative history of L.B. 568, and none has been pointed out to us. On further reflection we find no valid basis upon which we can presume to know the Legislature's intent with regard to the retroactive application of the punishments contained in L.B. 568 for acts committed before its enactment to cases which are awaiting final judgment. Consequently, on further reflection, we must conclude that the Randolph doctrine does not apply to the case at hand, and our earlier opinion was, regrettably, erroneous in holding that it did. Our earlier opinion is therefore overruled. We thus avoid the larger question of whether persons whose appeal was pending at the time L.B. 568 was enacted may constitutionally be subjected to lifetime suspension of driving privileges.
The sole error assigned by defendant is that he is entitled to have his sentence reduced to a maximum of 6 months under the authority of Neb. Rev. Stat. § 29-2204.01 (Reissue 1979). That statute provides: "In any criminal proceeding in which a sentence of confinement has been imposed and the particular law under which such sentence was pronounced is thereafter amended to decrease the maximum period of confinement which may be imposed, then any person sentenced under the former law shall be entitled to his discharge from custody when he has served the maximum period of confinement authorized by the new law, notwithstanding the fact that the court may have ordered a longer period of confinement under the authority of the former law."
On first appearance this statute seems to apply, mandating an order reducing the term of imprisonment to 6 months.
We note that not considered in this case, since the matter is on appeal and therefore not final, is the question of whether 29-2204.01 intrudes on the powers granted to the Board of Parole by article IV, 13, of the Constitution of Nebraska, so far as final judgments may be involved, or whether, absent an agreement to exercise our discretionary power to reduce sentences, the Legislature has any authority to order a reduction in penalties or a change in a final order of this court.
Limiting ourselves to the question before us, may it be fairly said that the Legislature intended the act to apply when incarceration time is decreased but a weighty and different additional consequence is provided? Nothing in the legislative history of the statute casts light on this determination, or of L.B. 568.
Previously, we have held that 29-2204.01 did not apply unless the "particular law" under which the defendant was sentenced was amended, State v. Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979), or when only the minimum term has been decreased, but the maximum term remains the same, State v. Rubek, 189 Neb. 141, 201 N.W.2d 255 (1972).
In the absence of a clear expression of legislative intent, we are not inclined to interpret the statute to apply to matters other than clearly expressed within the statute itself.
No mandate based upon our earlier opinion has issued; therefore, the matter is before us in the same posture as if upon a motion for rehearing. Having concluded that neither the Randolph doctrine nor the provisions of 29-2204.01 apply, the sentence of the trial court is correct and we hereby affirm it. Should defendant have been released from the custody of the Department of Correctional Services under the language of our earlier opinion, he is to be returned thereto forthwith to complete the sentence imposed by the trial court. He is entitled to no credit for such period of time as he may have been at liberty by virtue of his release pursuant to our earlier opinion. See Philbrook v. Dunn, 121 Neb. 421, 237 N.W. 391 (1931).
AFFIRMED.
CLINTON, J., participating on briefs.