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Transcription

1 2-685 ; and A- I (consolidated) IN THE COURT OF APPEALS FOR THE STATE OF NEBRASKA STATE OF NEBRASKA, v. Appellee, REBECCA M. BREE, Appellant. Appeal fro of Plalte ru, strict Court, Nebraska District Judge EF OF APPELLEE JON BRUNING,#20351 Attorney General George R. Love #19332 Assistant Attorney General Siobhan E. Duffu Senior Certified Law Clerk 2ll5 State Capitol Lincoln, NE Tel: (402) george. I o v gov Attorneysfor Appellee Ff,tffiM ocr 1 7 ZAQ NEBRff5fl$h?ffiil?URT ttffiil 'trilfl/ W 'trililfll aaaa all 771W W trtt )(-

2 TABLE OF CONTENTS STATEMENT OF JITRISDICTION... 1 STATEMENT OF THE CASE... 1 PROPOSITIONS OF LAW...2 STATEMENT OF FACTS ARGUMENT...6 ASSIGNMENT OF ERROR #1..,...6 CONCLUSION PROOF OF SERVICE...,.,.12

3 TABLE OF AUTHORITIES CASES CITED: State v. Heckman,239 Neb. 25 (1991)... 5, 8, 9, 10 State v. Schulte, 12 Neb. App. 924,928 (Neb. Ct. App. 2004)....2,7 State v. Tucker,z59 Neb. 225 (2000) Widtfeldt v. Holt County Bd. of Equalization, 12 Neb. App. 499 (Neb. Ct. App.2004) ,9 STATATES CITED: Neb. Rev. Stat. $ (Reissue 2008)...3,7

4 STATEMENT OF JURISDICTION The county court's order denying the motion to grant credit for time previously served was filed on April I0,2012. The notice of appeal and poverty affidavit were filed on April 20,2012. On July 6,2012,the district court affirmed the order of the county court denying credit for time previously served. The notice of appeal and poverty affidavit were filed on July 27,2012. This court has jurisdiction. STATEMENT OF THE CASE A. Nature of the Case. This is a criminal case wherein Rebecca M. Bree ("Bree") plead guilty to charges in 3 separate cases. The sentencing hearing was scheduled for November 18, 201l, but Bree did not appear. A bench warrant was issued, she was arrested on January 3,2012, and was in custody until posting bond on January 11,2012. At sentencing, Bree was not given credit for the time she spent in jail from January 3, 2012, to January 11,2012. She filed a motion to grant credit for the time she served during that period, which the county court denied because she was not in custody for the charge under which she was eventually sentenced, but rather was in custody for having failed to appear at her sentencing hearing. The district court affirmed the county court's ruling.

5 B. Issues Tried to the Court. The issue before the district court was whether the county court properly denied Bree's motion to grant credit for time previously served. C. How the Issues Were Decided. The district court affirmed the county court's denial of Bree's motion to grant credit for time previously served. D. Scope of Review. Upon appeal from a county court in a criminal case, a district court acts as an intermediate appellate court, rather than as a trial court, and its review is limited to an examination of the county court record for error or abuse of discretion. Both a district court and a higher appellate court generally review appeals from a county court for error appearing on the record. State v. Schulte, 12 Neb. App. 924,928 (Neb. ct. App. 2004). PROPOSITIONS OF LAW I. Credit against a jail term shall be given to any person sentenced to a city or county jail for time spent as a result of the criminal charge for which the jail term is imposed or as a result of conduct upon which such charge is based. Such credit shall include, but not be limited to, time spent in jail:

6 (a) Prior to trial; (b) During tnal; (c) Pending sentence (d) Prior to delivery of such person to the county board of corrections or, in counties which do not have a county board of corrections, the county sheriff... Neb. Rev. Stat. $ (Reissue 2008). TI. The character of a pleading is determined by its content, not by its caption. See Widtfeldt v. Holt County Bd. of Equalization, 12 Neb. App. 499 (Neb. Ct. 4pp.2004). STATEMENT OF FACTS The State would note as a preliminary matter that this appeal involves 3 cases in which Bree filed 3 separate but identical briefs. The Bill of Exceptions in all 3 cases are identical. The cases have been consolidated by the Nebraska Court of Appeals, and any citations to the Bills of Exception and Brief of Appellant, unless otherwise noted, refer to A

7 In A lCRl2-52, Bree was charged with 1 count of Issuing Bad Checks (Less than $200), a Class II misdemeanor. (A ,T4). On October 5, 2011, Bree plead guilty to the charge, was found guilty, and was ordered to appear at a sentencing hearing on November 18, (A , T1 1). She failed to appear on November 18,2011, and a bench warrant was issued. (A-t2-684, T13-14). Bree was affested in Dodge County on January 3,2012, transported to Platte County and was released on bond on Januaryll,2012. (A , T15-16). On April 4,2012, for the crime of Issuing Bad Checks (Less than $200), a Class II misdemeanor, Bree was sentenced to l0 days jail. (A ,T19-20). In A CR12-53, Bree was charged with I count of Driving Prior to Reinstatement, a Class III misdemeanor. (A ,T4). On October 5,201l, she plead guilty to the charge, was found guilty, and was ordered to appear at a sentencing hearing on November 1 8, (A , T7-8). She failed to appear on November 1 8,201 1, and a bench warrant was issued for her arrest. ( , T9-10). Bree was alrested in Dodge County on January 3,2012, transported to Platte County and was released on bond on Januaryll,2012. (A , T1l-12). On April 4,2012,for the crime of Driving Prior to Reinstatement, a Class III misdemeanor, Bree was given a fine of $150 and was granted credit for time served in Madison County jail against the fine. (A , T15-16). 4

8 In A lCRl2-54, Bree was charged with Count I: Issuing Bad Checks (Less than $200), a Class II misdemeanor and Count II: Issue No-Account Check (Less than $200), a Class II misdemeanor. (A ,T4). On October 5,2011, she plead guilty to the charges, was found guilty, and was ordered to appear at a sentencing hearing on November 18, 201l. (A , T8). She failed to appear on November 18, 201l, and a bench warrant was issued for her arrest. (A , T10-11). Bree was affested in Dodge County on January 3,2012, transported to Platte County and released on bond on JanuaryIl,2012. (A , Tl2-13). On April 2, 2012, for the crime of Issue Bad Checks (Less than $200), a Class II misdemeanor, Bree was sentenced to 10 days jail, imposed consecutive to the sentence in A (A , T16-17). For the crime of Issue No-Account Check (Less than $200), Bree was sentenced to 10 days jail, to run concurrent with the sentence imposed for Count I of this case. (A , Tl6-17). Bree filed a motion requesting the court grant her credit for the time she spent in custody from January 3,2012,to January 11,2012. (A ,T21-22)(A , Tl7-18)(A , Tl8-19). The matter came before the county court on April 10,2012. (A , T25XA , T20XA , T20). The county court, basing its reasoning on State v. Heckman,239 Neb. 25 (1991), 5

9 denied Bree's motion for credit for time previously served. (A ,T25)(A , T2o)(A- I , T20). Bree appealed the county court order and the matter was heard by the district court on June 29,2012. On July 6, 2012, the district court issued an order affirming the county court's denial of Bree's motion to grant credit for time previously served. (A , T37-38)(A , T32-33XA , T33-34). In its order, the district court noted that Bree was arrested and taken into custody as a result of her failure to appear, not as a result of the offense for which she was actually sentenced. (A , T37-38)(A ,T32-33)(A ,T33-34). Bree is appealing the order of the district court which affirmed the lower court's denial of her motion to grant credit for time previously served. ARGUMENT ASSIGNMENT OF ERROR # 1 The District Court Properly Affirmed the County Court Decision Denying Bree Credit for Time Served From January , to January ll, A. Analysis Bree assigns as error that the district court erred when it determined she was not entitled to credit for time spent in jail from January 3, 2012, to January 1 1, (Brief for Appellant, p.3). Upon appeal from a county court in a criminal 6

10 case, a district court acts as an intermediate appellate court, rather than as atrial court, and its review is limited to an examination of the county court record for error or abuse of discretion. Both a district court and a higher appellate court generally review appeals from a county court for error appearing on the record. State v. Schulte, l2 Neb. App. 924,928 (Neb. Ct. App. 2004). To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of the determination made by the court below. State v. Tucker,259 Neb. 225,228 (2000). Bree states in her brief that the issue at hand is the proper interpretation of Neb. Rev. Stat. $ , and that a question of statutory interpretation requires an appellate court to make a decision independent that of the lower court. (Brief for Appellant, p. 3). However, the issue on appeal is more accurately defined as the proper application of the statute rather than its interpretation and the State believes the decision of the district court should be reviewed for effor on the record. Neb. Rev. Stat. $ provides in part that "[c]redit against a jail term shall be given to any person sentenced to a city or county jailfor time spent as a result of the criminal chargefor which the jail term is imposed..." Neb. Rev. Stat. $ (Reissue 2008) (emphasis added). Bree is requesting she be granted credit for time she spent in jail from January 3, 2012, to January 71, 2012.

11 However, the time she spent in jail during that period was not as a result of the offenses for which a criminal sentence was later imposed, but rather was for her failure to appear at her sentencing hearing. The county court denied the motion for credit for time previously served, and the district court affirmed that order, based on the application of State v. Heclcrnan to the case at hand. In State v. Heckman,239 Neb. 25 (1991), a defendant requested credit for time previously served for time he spent in jail after failing to appear. Heckman failed to appear at his sentencing hearing and a bench warrant was issued for his arrest. Id. at 27. He was alrested and spent 7 days in jail on the failure to appear charge, for which he was never convicted or sentenced, before being sentenced under the original criminal charges. Id. at27,28. He requested credit for the 7 days he spent in custody for failing to appear. Id. at27. The Nebraska Supreme Court stated that "[t]o reach the result advocated by the defendant would in effect reward him for his actions in de$ing a court order." Id. at29. The Court held that Heckman was not entitled to credit for the time spent in custody after failing to appear because that time was "...not a result of the particular offenses for which the defendant was actually sentenced." Id. at29. In this case, both the county court and the district court found that Heclcrnan was applicable and that Bree was not entitled to credit for the time she spent in jail 8

12 from January 3,2012,to January 11,2012. Bree argues that because she was never charged with the offense of failure to appear that she was thus never held on that charge, and the time in question should be applied against her sentences for the underlying criminal charges. (Brief for Appellant, p. 6). She argues the bench warrants issued on November I 8,201 1, do not list the charge as "Failure to Appear," but rather lists her underlying criminal offenses, and thus tries to distinguish Heckman from the case at hand. (Brief for Appellant, pp. 6-7). However, in each of the 3 bench warrants issued, the body of the warrant states that Bree was ordered to appear in court on November 1 8,201 1, and that she did not comply with that order. (A ,T14)(A , T10XA , Tl l). The character of a pleading is determined by its content, not by its caption. See Widtfeldt v. Holt County Bd. of Equalization, 12 Neb. App. 499 (Neb. Ct. App. 2004). Here, while the bench warrants may have listed the charge as the underlying criminal charges, it is clear the warrant in each case was issued not because of the underlying criminal offenses for which Bree was later sentenced, but because she failed to comply with the court's order that she appear on November 18, Bree argues the bond she posted in order to be released from custody on January 11,2012, was under her original criminal charges and thus the time she 9

13 served before posting that bond should be applied to her sentences for her original criminal charges. (Brief for Appellant, pp. 7-9). While Bree was never officially charged with failure to appear, and the bond she posted on January ll,2012,was not applied to a charge of failure to appear but was applied to her criminal charges, it is clear from the bench warrants issued by the court in each case that the reason she was being held was because she did not appear at sentencing. The reason the bench warrant was issued and the reason Bree was affested on January 3 was because shefailed to appear in court, not because of her original criminal charges. Applying the time Bree spent in jail after failing to comply with a court order to the sentences for her other criminal offenses would result in no punishment for failing to appear when ordered by the court. This promotes disrespect for the judicial process and would, as the Nebraska Supreme Court noted in Heclcrnan, essentially reward Bree for her refusal to follow a court order. While Bree was never charged with Failure to Appear, and while the bond posted for her release was under her original criminal charges, the time she spent in custody from January 3 to January I I,2012, was because of her failure to appear, not because of her criminal charges for which she was later sentenced, and should not be applied to the sentences for her criminal convictions. 10

14 CONCLUSION For all the foregoing reasons, the Appellee requests that this Court affirm the district court's affirmance of the county court's denial of credit for time previously served. Respectfully submitted, STATE OF NEBRASKA, Appellee, 2ll5 State Capitol Lincoln, NE Tel: (402) Attorneys for the Appellee. 11

15 PROOF OF SERVICE STATE OF NEBRASKA ) ) ss. COUNTY OF LANCASTER ) I, George R. Love, being first duly sworn, depose and state that two copies of the brief in the above entitled case were caused to be served upon the Appellant by depositing said copies in the United States Mail, postage prepaid, addressed to Appellant's counsel of record, Nathan J. Sohriakoff, th Ave., P.O. Box 1618, Columbus, NE 68602, on this 17th day of,2012. //7Jz ' George R) ve, Affiant Subscribed in my presence and sworn to before me this DauV of October,,20l2. GENERAL tl0taby- State O ileunsta KIMBERLYA Comm. Erp. Sept. 28, 2014 l) '*A^ A 3a^*n0","r, Notq$Rublic (l GRL/kas 12