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02/02/2018 01:12 AM CST




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                                  Nebraska Supreme Court A dvance Sheets
                                          298 Nebraska R eports
                                                 STATE v. HUSTON
                                                 Cite as 298 Neb. 323




                                        State of Nebraska, appellee, v.
                                        Brianna L. Huston, appellant.
                                                   ___ N.W.2d ___

                                        Filed December 1, 2017.   No. S-17-267.

                1.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                2.	 Criminal Law: Statutes: Sentences: Legislature. 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.
                3.	 Appeal and Error. An appellate court is not obligated to engage in an
                    analysis that is not necessary to adjudicate the case and controversy
                    before it.

                 Appeal from the District Court for Hall County, M ark J.
               Young, Judge, on appeal thereto from the County Court for
               Hall County, Philip M. M artin, Jr., Judge. Sentence vacated,
               and cause remanded with directions.

                  Robert W. Alexander, Deputy Hall County Public Defender,
               for appellant.

                 Douglas J. Peterson, Attorney General, and Siobhan E.
               Duffy for appellee.

                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
               Funke, JJ.
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                               STATE v. HUSTON
                               Cite as 298 Neb. 323

      K elch, J.
                      NATURE OF CASE
   Brianna L. Huston was sentenced to jail time and probation
after pleading guilty to first-offense driving during revocation.
In addition to this sentence, the county court for Hall County
ordered a revocation of Huston’s driver’s license for 1 year,
believing that such was required under this court’s interpreta-
tion of Neb. Rev. Stat. § 60-4,108 (Cum. Supp. 2016) set forth
in State v. Frederick.1 On appeal, the district court for Hall
County affirmed. Huston subsequently appealed the revocation
portion of her sentence to this court.
   While Huston’s appeal was pending, 2017 Neb. Laws, L.B.
263, went into effect, which amended § 60-4,108 to allow
the sentencing court discretion in ordering a revocation for
first-time offenders when the offender has been placed on
probation.2 Because we determine that the amended version
of § 60-4,108 applies retroactively to Huston’s sentence, we
vacate Huston’s sentence in its entirety and remand the cause
to the district court with directions to remand it to the county
court for resentencing consistent with the amended version of
§ 60-4,108.
                            FACTS
   In July 2016, Huston was charged with driving during
revocation, second or third offense. In November, she pled
guilty to an amended charge of first-offense driving during
revocation. In exchange for Huston’s plea, the State agreed to
a sentence of 45 days’ jail time and to not oppose Huston’s
request for house arrest. The county court sentenced Huston
to 45 days’ jail time and 6 months’ probation and revoked her
license for 1 year.
   In revoking Huston’s license, the county court found that it
was obligated to do so by State v. Frederick, which involved

 1	
      State v. Frederick, 291 Neb. 243, 864 N.W.2d 681 (2015).
 2	
      See 2017 Neb. Laws, L.B. 263, § 65.
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                Nebraska Supreme Court A dvance Sheets
                        298 Nebraska R eports
                                STATE v. HUSTON
                                Cite as 298 Neb. 323

another appellant convicted of driving during revocation.3 In
Frederick, we found no merit to the appellant’s assignment
of error and affirmed his conviction. Although neither party
assigned or argued it, we found that the sentencing court
committed plain error when it failed to revoke the appellant’s
driver’s license. We said that revocation was required by
§ 60-4,108(1)(a), which, at the time Frederick was issued (and
at the time Huston was sentenced), stated in relevant part:
      [For a first offense of driving during revocation,] the
      court shall, as a part of the judgment of conviction, order
      such person not to operate any motor vehicle for any pur-
      pose for a period of one year from the date ordered by the
      court and also order the operator’s license of such person
      to be revoked for a like period . . . . Such [order] shall be
      administered upon sentencing, upon final judgment of any
      appeal or review, or upon the date that any probation is
      revoked, whichever is later.
   Huston appealed her sentence to the district court, which
affirmed the county court’s sentencing order, finding no abuse
of discretion.
   Huston then timely appealed the district court’s order in
March 2017. The parties’ briefs were filed in May and June.
   Effective August 24, 2017, L.B. 263 amended § 60-4,108.
Prior to L.B. 263, § 60-4,108(1)(a) provided that for a first
offense under that section, “the court shall . . . order the
operator’s license of such person to be revoked for [a period
of 1 year].” L.B. 263 added the phrase, “unless the person was
placed on probation, then revocation may be ordered at the
court’s discretion.”
                  ASSIGNMENT OF ERROR
  Huston assigns that the district court erred in affirming the
county court’s decision to revoke her driver’s license and its
decision that the revocation must begin immediately.

 3	
      See State v. Frederick, supra note 1.
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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                              STATE v. HUSTON
                              Cite as 298 Neb. 323

                  STANDARD OF REVIEW
   [1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.4
                          ANALYSIS
   Before addressing Huston’s assigned errors, we turn our
attention to the State’s assertion that L.B. 263 would amend
§ 60-4,108 and that if the change went into effect while
Huston’s appeal was still pending, then the amendment might
affect Huston’s sentence under State v. Randolph.5
   [2] In State v. Randolph, we held 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.6 But, the
Randolph doctrine does not apply if the Legislature created
a “new crime” rather than merely changing the penalty for
an existing crime.7 Here, the amended version of § 60-4,108
changed only the punishment.
   Section 60-4,108 was amended after Huston committed the
offense of driving during revocation, but before final judg-
ment. If a defendant appeals his or her sentence, the sentence
is not a final judgment until the entry of a final mandate.8
Because we have not yet entered a final mandate on Huston’s
appeal of her sentence, the judgment is not yet final. Thus, if
the amendment to § 60-4,108 mitigates Huston’s punishment,
then Huston’s punishment is that provided by the amended
version of § 60-4,108, unless the Legislature has specifically
provided otherwise.

 4	
      State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
 5	
      State v. Randolph, 186 Neb. 297, 183 N.W.2d 225 (1971).
 6	
      Id.
 7	
      See State v. Duncan, 291 Neb. 1003, 870 N.W.2d 422 (2015).
 8	
      Id.
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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                              STATE v. HUSTON
                              Cite as 298 Neb. 323

   We conclude that Huston’s punishment is that provided by
the amended version of § 60-4,108. The Legislature has not
provided otherwise, and the amendment to § 60-4,108 miti-
gates the punishment for Huston’s offense. Before the amend-
ment, under our interpretation set forth in State v. Frederick,
§ 60-4,108 required that a defendant convicted of first-offense
driving during revocation have his or her driver’s license
revoked for a period of 1 year regardless of whether that
defend­ ant was placed on probation.9 After the amendment,
if the defendant is placed on probation, revocation is not
necessarily required.10 Accordingly, the amended version of
§ 60-4,108 allows for a more lenient punishment, i.e., miti-
gates the punishment, and therefore it applies retroactively to
Huston’s sentence. Because it applies retroactively, then, the
county court should have had discretion in deciding whether to
revoke Huston’s driver’s license.
   We acknowledge that Huston’s current sentence, including
the revocation portion, is within the statutory limits of the past
version of § 60-4,108; and even under the amended version
of the statute, the county court could order a 1-year period of
revocation in its discretion. However, here, the county court
was bound by the law at the time of sentencing, was required
to impose a period of revocation, and was unable to exercise
its discretion.
   As a matter of plain error, therefore, we conclude that
Huston is entitled to retroactive relief under L.B. 263.11
Consequently, we vacate Huston’s sentence and remand the
cause to the district court with directions to remand it to the
county court for resentencing consistent with the amended ver-
sion of § 60-4,108.
   [3] Because we conclude that the amended version of
§ 60-4,108 applies retroactively to Huston’s sentence and

 9	
      See State v. Frederick, supra note 1.
10	
      See 2017 Neb. Laws, L.B. 263, § 65.
11	
      See State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
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               Nebraska Supreme Court A dvance Sheets
                       298 Nebraska R eports
                              STATE v. HUSTON
                              Cite as 298 Neb. 323

remand the cause for resentencing, we need not consider
Huston’s assignment of error. An appellate court is not obli-
gated to engage in an analysis that is not necessary to adjudi-
cate the case and controversy before it.12
                         CONCLUSION
   For the reasons set forth above, we conclude that the
amended version of § 60-4,108 applies retroactively to
Huston’s sentence. Under the amended version, the county
court has discretion in deciding whether to impose a period of
revocation. Because the county court was unable to exercise
its discretion at the time of Huston’s sentencing, we vacate
Huston’s sentence in its entirety and remand the cause to
the district court with directions to remand it to the county
court for resentencing consistent with the amended version of
§ 60-4,108.
	Sentence vacated, and cause
	                                 remanded with directions.
   Wright, J., not participating.

12	
      Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (2016).
