Saturday, December 03, 2005
Nebraska Supreme Court (CJ Hendry) upholds habitual offender conviction following remand from first appeal; Certified copies of New Mexico conviction showing that Defendant had counsel at all critical stages were admissible and satisifed "preponderance of the evidence" standard for sentencing enhancement for prior offensesState v. Hall, 270 Neb. 669 Filed December 2, 2005. No. S-04-1478. (Hall II)This is Gregory G. Hall's second direct appeal from his sentencing as a habitual criminal, following this court's remand for a new enhancement hearing. See State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004)(Hall I) Nebraska's habitual criminal statutes provide for enhanced mandatory minimum and maximum sentences for a convicted defendant who "has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state . . . for terms of not less than one year." Neb. Rev. Stat. § 29-2221(1) (Reissue 1995); State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004). In a proceeding to enhance a punishment because of prior convictions, 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. State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). an official record is "duly authenticated" by standards of Neb. Evid. R. 902, Neb. Rev. Stat. § 27-902 (Reissue 1995) In State v. Munn, 212 Neb. 265, 322 N.W.2d 429 (1982), this court rejected the defendant's contention that a copy of an out-of-state court record required a judge's certification of an attestation by a deputy clerk and court seal. Neb. Rev. Stat. § 25-1285 (Reissue 1995) provides that judicial records of Nebraska and federal courts can be proved by the clerk or custodian's certification, accompanied by the official seal of office. In contrast, to prove judicial records from other states, former Neb. Rev. Stat. § 25-1286 (Reissue 1979) then imposed an additional requirement that a judge or magistrate certify that the clerk's attestation and court seal were in due form of law.
Posted by stan_sipple at 7:03 AM