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S-99-1037
IN THE SUPREME COURT OF NEBRASKA
THE STATE OF NEBRASKA,
Appellee,
f~LED
vs.
JAN 0G2000
APRIL HANSEN,
CLERK
NEBRASKA SUPREME C?URT
COURT OF APPEALS
Appellant.
APPEAL FROM THE DISTRICT COURT OF DODGE COUNTY, NEBRASKA
HONORABLE F. A. GOSSETT, III, DISTRICT JUDGE
REPLY BRIEF OF APPELLANT
William G. Line - 12486
P.O. Box 410
Fremont, Nebraska 68026-0410
(402) 721-4203
Attorney for Appellant
KLUTZN1CK LAW LIBRARY
CREIGHTON UNIVERSITY
TABLE OF CONTENTS
Preliminary Statement.........................................................................................
1
Statement of Facts
1
Argument
I.
II.
THE STATE'S CONTENTION THAT HANSEN
WAS GIVEN A CONDITIONAL SENTENCE
IS FRIVOLOUS
2
THE STATE'S AD HOMINEM ARGUMENT
DEMONSTRATES THE LACK OF MERIT
IN ITS CASE.........
3
III. THE STATE CONCEDES THAT THE OFFENDING
PROVISION IS A SENTENCE THEN CALLS IT A
"SENTENCING ALTERNATIVE" DESPITE THE FACT
THAT THERE ARE NO LIMITATIONS ON THE
SENTENCING THAT CAN BE IMPOSED
3
Conclusion .
3
Proof of Service
4
TABLE OF AUTHORITIES
Cases Cited
State v. Divis, 256 Neb. 328 (1999)
3
1.
PRELIMINARY STATEMENT
Appellant is uncertain as to whether she is filing a reply brief to the state's brief on
the merits or whether she is filing a responsive brief to the state's motion for summary
dismissal or summary affmnance with supporting brief. The cover of the state's brief
designates it as a brief in the Court of Appeals even though the state does give the case
number and that number shows that this is a Supreme Court case. That error is simply an
obvious typographical error but, in the certificate of service, the state alleges that it
served two copies of a motion for summary dismissal or summary affmnance and
appellant was not served any copy of a motion for summary dismissal or affmnance.
Despite the apparent uncertainty of the state as to what it is doing, we will treat its brief
as a brief on the merits rather than a supporting brief for summary affmnance.
STATEMENT OF FACTS
The sentence of the court (TIl) entered the 16th day of July, 1999, (TIl) was
followed by the notice of appeal from the judgment and sentence which was immediately
filed the same day, July 16, 1999 (T13).
No motion to dismiss the appeal to the district court was made by the state. The
proceedings of July 16,1999, at 3:30 p.m. were denominated a sentencing (11:20-25) and
the court noted that Ms. Hansen was before it "today for sentencing on the charge of
•
driving while under the influence" (12:1-5). The court noted that it was going to
"proceed with sentencing" (12:19). The court imposed a sentence of probation (13:7-16).
The court indicated again that the sentence was being imposed "right now" subject to the
1
appeal (13:23) and that when the appeal is "formally filed" that she would get her license
back and the sentence would be stayed as would be true on any appeal (14:1). The court
noted that her appearance bond of $200 would be reflective for purposes of appeal
(14:10). The appeal was filed immediately at the close of the 3:30 p.m. hearing on the
16th day of July, 1999, at 4:36 p.m. (T13).
The state distorts the record in its statement of the case when it says that "by
agreement there was no presentence investigative report and Hansen was sentenced to
probation to be held in abeyance subject to the rulings that take place (12:19-14-2)."
Hansen was advised that the conditions would be mandatory until the appeal was
"ripened" (13:3) which is simply no more than a statement of the law. The state failed to
show that defense counsel requested a presentence investigation (7:9).
ARGUMENT
r.
THE
STATE'S
CONTENTION
THAT
HANSEN
WAS
GIVEN
A
CONDITIONAL SENTENCE IS FRIVOLOUS.
The state's assertion that "there is no order in the record to stay the sentence
(state's statement of the case 3(d) pg. 1 Br.) and comment that the order of probation was
held in abeyance with "no record it was ever stayed" (pg. 11 Br.) is ridiculous as appeals
automatically stay further proceedings when a bond is posted as was done here.
2
II.
THE STATE'S AD HOMINEM ARGUMENT DEMONSTRATES THE LACK
OF MERIT IN ITS CASE.
A lawyer generally learns early in his or her career that snide references to
opposing counsel generally fail to make up for the lack of merit in the case. Counsel
devotes two pages of her brief to snide references to counsel's earlier attempts to have
this unconstitutional legislation annulled.
Counsel does apologize for his lack of
astuteness in making this unanswerable challenge earlier. One wonders why the attack
was made since the state concedes that there is nothing to prevent an attack made on any
constitutional ground that the legislation presents.
III.
THE STATE CONCEDES THAT THE OFFENDING PROVISION IS A
SENTENCE THEN CALLS IT A "SENTENCING ALTERNATIVE" DESPITE THE
FACT THAT THERE ARE NO LIMITATIONS ON THE SENTENCING THAT CAN
BE IMPOSED.
It must be remembered that history has taught us that several hundred years ago
religious zealots burned each other at the stake for "the good of their souls". An old
saying is brought to mind: "God save us from those that would save us".
CONCLUSION
The Divis court recognized that the alternative penalties were an inducement to the
legislation, in fact the only excuse for its existence.
3
Respectfully submitted,
APRIL HANSEN, Appellant
By:
-I-...Lf--
_
PROOF OF SERVICE
STATE OF NEBRASKA )
)ss.
COUNTY OF DODGE
)
I, William G. Line, being first duly sworn, depose and state that two copies of the
appellant's reply brief in the above entitled case were served upon the Appellee by
depositing said copies in the United States Mail, postage prepaid, addressed to Attorney
General Don Stenberg, 2115 State Capitol, Lincoln, Nebraska
If
68509-8920, on this
day of January, 2000.
illiam G. Line
SUBSCRIBED in my presence and sworn to before me this
2000. _--~'::':"::~=:1
ENERAL NOTARY·State of Nebraska
SANDRA K.EDLER
My Comm. Exp. Oct. 1, 2002
,J;
III
4
tit
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day of January,