Sunday, July 02, 2006

Sarpy county district court erred when it reduced 3rd offense dwi defendant's jail time from 90 to 10 days as part of her probation order but Defendant still only needs to serve 10 days because State appealed under 23-2315.01 which allows appellate court to make prospective rulings of law applicable to future casesState v. Vasquez, S-05-1019, 271 Neb. 906 HTML Sarpy County Court sentenced 3rd offense drunk driving defendant to probation but added on 90 days in jail, according to § 60--6,197.03(3) (Reissue 2004. The District Court modified the sentence to 10 days in jail. The State took exception under 29-2315.01. § 29-2262(2)(b) (Cum. Supp. 2002 allows the court to sentence a probationer to additional jail time for up to 90 days. 60-6,197.03(3) provides a floor on the jail time a defendant on probation will get for 3rd offense dwi. The supreme court agrees that the District court was wrong to reduce the defendant's sentence to 10 days, it says no one is able to reinstate the stiffer sentence because the State did not appeal the sentence as excessively lenient; the state may only appeal felony sentences. Since the Defendant had been placed in jeopardy, § 29-2316 (Cum. Supp. 2004) this excessively lenient sentence for a problem drinker stands but future drunks wont havethe same opportunities to walk.

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