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Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE v. IRISH

Cite as 298 Neb. 61

State of Nebraska, appellee, v. 

Bryant L. Irish, appellant.

___ N.W.2d ___

Filed October 13, 2017. No. S-16-1200.

1. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

2. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

3. Statutes. Statutory interpretation presents a question of law.

4. Statutes: Words and Phrases. As a general rule, the word “shall” 

in a statute is considered mandatory and is inconsistent with the idea 

of discretion.

5. Criminal Law: Convictions: Probation and Parole: Motor Vehicles: 

Licenses and Permits: Revocation. When a motor vehicle operator’s 

license revocation must be part of a court’s judgment of conviction in a 

criminal case, as distinguished from an authorized term of probation, it 

is a distinct part of the offender’s punishment for the crime.

6. Constitutional Law: Sentences: Probation and Parole: Drunk 

Driving: Motor Vehicles: Licenses and Permits: Revocation. Because 

the license revocation requirement under Neb. Rev. Stat. § 60-6,198 

(Cum. Supp. 2016) is not a term of probation and the statute does not 

authorize a court to impose it as such, the Nebraska Constitution prohibits a court from later commuting the original sentence.

7. Jurisdiction: Time: Appeal and Error. To vest an appellate court with 

jurisdiction, Neb. Rev. Stat. § 25-1912 (Reissue 2016) requires a criminal defendant to perfect an appeal within 30 days of the judgment.

8. Criminal Law: Judgments: Sentences. In a criminal case, the judgment is the sentence.

Appeal from the District Court for Madison County: Mark

A. Johnson, Judge. Appeal dismissed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/09/2017 09:13 AM CST
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Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE v. IRISH

Cite as 298 Neb. 61

Alan G. Stoler and Jerry M. Hug, of Alan G. Stoler, P.C., 

L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Funke, J.

INTRODUCTION

This is Bryant L. Irish’s appeal from the district court’s 

order that denied his request to modify his probation order. 

We conclude that the court lacked jurisdiction to consider his 

untimely challenge to its sentencing order through a motion to 

amend or terminate a term of probation. We therefore dismiss 

his appeal.

BACKGROUND

In March 2015, Irish was convicted under Neb. Rev. Stat. 

§ 60-6,198 (Cum. Supp. 2016) of proximately causing serious 

bodily injury to another while driving under the influence of 

alcohol, a Class IIIA felony.1 Section 60-6,198(1) provides 

that upon conviction of this crime,

the court shall, as part of the judgment of conviction, 

order the person not to drive any motor vehicle for any 

purpose for a period of at least sixty days and not more 

than fifteen years from the date ordered by the court and 

shall order that the operator’s license of such person be 

revoked for the same period.

At the sentencing hearing, the court placed Irish on probation for a period of 60 months and ordered him to serve the 

first 180 days in jail. It also revoked his driver’s license for 

a period of 10 years. The court then stated from the bench, 

“After a 45-day period of no driving, you may apply for 

an ignition interlock permit and install an ignition interlock 

1 See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014).
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STATE v. IRISH

Cite as 298 Neb. 61

device on any motor vehicle that you operate.” But the court’s 

written sentencing order was silent on Irish’s eligibility to 

drive with an ignition interlock device.

Irish appealed, arguing only that the evidence was insufficient to show that he had proximately caused his passenger’s 

serious injuries. We rejected that argument in January 2016.2

In August 2016, Irish moved for a nunc pro tunc order. 

He asked the court to correct what he characterized as the 

void sentencing order that it had issued in March 2015. He 

asserted that the court had directed his eligibility for an ignition interlock permit during his license revocation hearing but 

that the Nebraska Department of Motor Vehicles (DMV) had 

denied his application because no statute authorized an ignition 

interlock permit for someone convicted of Irish’s crime. Irish 

argued that the judgment was therefore void and requested 

that the court revise the revocation period in its order to carry 

out the court’s intent. After a hearing, which is not part of the 

record, the court overruled the motion.

Irish then filed a motion to modify or clarify the probation order. At the November 2016 hearing, Irish again asked 

the court to revise its original probation order to carry out its 

sentencing intent because the DMV would not grant him an 

ignition interlock permit. He argued that a probation order 

can always be modified. The court responded that § 60-6,198 

required the court to order a person not to drive for a period 

of at least 60 days and not more than 15 years and to order 

a license revocation for the same period. As a result, it concluded that it lacked authority to issue a probation order 

that was contrary to that statutory requirement and overruled 

the motion.

ASSIGNMENT OF ERROR

Irish assigns that the district court erred in determining that 

it lacked authority to modify the terms of his probation.

2 See State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016).
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STATE v. IRISH

Cite as 298 Neb. 61

STANDARD OF REVIEW

[1-3] We independently review questions of law decided by 

a lower court.3 A jurisdictional issue that does not involve a 

factual dispute presents a question of law.4 Statutory interpretation presents a question of law.5

ANALYSIS

Irish relies upon Neb. Rev. Stat. § 29-2263(3) (Reissue 

2016) for his contention that the district court had legal authority to grant his motion to modify his order of probation. 

Section 29-2263(3) sets forth that a court—on application of 

a probation officer or of the probationer, or its own motion—

may modify or eliminate any of the conditions imposed on the 

probationer or add further conditions authorized by Neb. Rev. 

Stat. § 29-2262 (Reissue 2016). However, the district court 

effectively concluded that it lacked jurisdiction to consider 

Irish’s request to reduce the license revocation period in its 

sentencing order.

If the court from which an appeal was taken lacked jurisdiction, then the appellate court acquires no jurisdiction.6

 But 

we have the power to determine whether we have jurisdiction 

over an appeal and to correct jurisdictional errors, even if we 

lacked jurisdiction to consider the merits of the order or judgment appealed.7

Irish concedes that there is no statutory provision under 

§ 60-6,198 for allowing an ignition interlock device as part 

of the driver’s license revocation in cases involving serious 

bodily injury. He further concedes that, as a result, the district 

court was wrong in believing it could authorize the use of an 

3 State v. McColery, 297 Neb. 53, 898 N.W.2d 349 (2017).

4 Id.

5 See State v. Robbins, 297 Neb. 503, 900 N.W.2d 745 (2017).

6 See Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861 

N.W.2d 425 (2015).

7 See id.
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STATE v. IRISH

Cite as 298 Neb. 61

ignition interlock device after 45 days of no driving. However, 

he argues that § 29-2263(3) authorizes the sentencing court to 

modify or eliminate any of the conditions imposed upon the 

probationer and that as a result, the court could have reduced 

the revocation period. We disagree.

The relevant portion of § 60-6,198(1) provides that upon 

conviction of this crime,

the court shall, as part of the judgment of conviction, 

order the person not to drive any motor vehicle for any 

purpose for a period of at least sixty days and not more 

than fifteen years . . . and shall order that the operator’s 

license of such person be revoked for the same period.

(Emphasis supplied.)

[4] As a general rule, the word “shall” in a statute is considered mandatory and is inconsistent with the idea of discretion.8

The term “shall” as it appears in § 60-6,198 describes a specific punishment which must be included in the judgment of 

conviction. Regardless of whether the criminal offender under 

§ 60-6,198 is sentenced to imprisonment or is given a sentence 

of probation, the trial court is required to order the offender not 

to drive during a specified period and to revoke the offender’s 

license for a like period.

In State v. Hense,

9

 under a comparable statutory mandate, 

we held that when a person is convicted of felony operation of 

a motor vehicle during a license revocation period,10 it is mandatory the court revoke the operator’s license of the offender 

for 15 years, and that the court does not have discretion as to 

whether or not it imposes such revocation. We further held 

that the trial court must impose the mandatory 15-year license 

revocation as a part of its sentence, including a sentence 

of probation.11

8 See Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016).

9 State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).

10 See Neb. Rev. Stat. § 60-6,197.06 (Cum. Supp. 2006).

11 Hense, supra note 9.
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STATE v. IRISH

Cite as 298 Neb. 61

Similarly, the Nebraska Court of Appeals has held that the 

15-year license revocation period for driving in violation of an 

ignition interlock restriction12 does not conflict with the 5-year 

limit on a sentence of probation for a felony conviction.13 It 

reasoned that a trial court has no discretion not to impose the 

15-year license revocation period, which is statutorily required, 

in addition to any other sentence the court imposes for the 

crime. It also reasoned that the revocation was not a term of 

probation, but was a term of punishment.14

The Court of Appeals further noted that the Legislature 

has demonstrated that it can distinguish between a mandatory 

license revocation period and a revocation that is a condition 

of probation.15 That legislative distinction is currently illustrated in Neb. Rev. Stat. § 60-6,197.03 (Reissue 2016), the 

sentencing statute for a violation of Neb. Rev. Stat. § 60-6,196 

(Reissue 2010) (driving under the influence) or Neb. Rev. Stat. 

§ 60-6,197 (Cum. Supp. 2016) (refusal to submit to chemical test).

As an example, for a person convicted of violating 

§ 60-6,196 or § 60-6,197 and who has no prior convictions, 

§ 60-6,197.03(1) provides that a court shall order a 6-month 

license revocation as part of its judgment and require the 

offender to apply for an ignition interlock permit for the revocation period. However, if the court places such offender on 

probation or suspends the sentence for any reason, the court 

shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be 

revoked for a period of 60 days from the date ordered by the 

court and order that during the period of revocation the person 

apply for an ignition interlock permit pursuant to Neb. Rev. 

Stat. § 60-6,211.05 (Cum. Supp. 2016).

12 See Neb. Rev. Stat. § 83-1,127.02(4) (Reissue 2014).

13 See State v. Donner, 13 Neb. App. 85, 690 N.W.2d 181 (2004).

14 Id.

15 Id.
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Nebraska Supreme Court Advance Sheets

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STATE v. IRISH

Cite as 298 Neb. 61

Similarly, under § 60-6,197.03(6), if an offender has two 

prior convictions, a court shall order a 15-year license revocation period as part of its judgment and issue an order under 

Neb. Rev. Stat. § 60-6,197.01 (Cum. Supp. 2016). Section 

60-6,197.01(1)(b) gives a court discretion to allow an offender 

to apply for an ignition interlock permit after a 45-day period 

of no driving. Again, however, if the court orders probation 

or suspends the offender’s sentence, § 60-6,197.03(6) requires 

the 15-year license revocation period to be a condition of the 

probation or suspended sentence and authorizes the court to 

permit the offender to apply for an ignition interlock permit 

after a 45-day period of no driving.

The language of § 60-6,198 requires the court to order a 

license revocation. The statute further makes no reference to 

a sentence of imprisonment or a sentence of probation. As a 

result, it is clear that the Legislature intended that the license 

revocation period be a mandatory part of the judgment of conviction and not a condition of probation.

Additionally, in State v. Bainbridge,

16 we held that Neb. 

Rev. Stat. § 39-669.19 (Cum. Supp. 1992), since transferred to 

Neb. Rev. Stat. § 60-6,209 (Cum. Supp. 2016), which allowed 

a person to seek a reduction of a 15-year license revocation period, violated the separation of powers clause of the 

Nebraska Constitution. We concluded that the 15-year revocation under Nebraska’s driving under the influence statute was 

part of the overall punishment of the defendant as opposed to 

a remedial condition.17 We further reasoned, in significant part, 

that the driving under the influence statutes required the revocation period to be a part of the court’s judgment of conviction.18 Relying on our previous decision in State v. Philipps,

19

we held that the precursor to § 60-6,209 invaded the Board of 

16 State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996).

17 Id.

18 Id.

19 State v. Philipps, 246 Neb. 610, 521 N.W.2d 913 (1994).
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STATE v. IRISH

Cite as 298 Neb. 61

Pardons’ power to commute sentences, a power that belonged 

to the executive branch under Neb. Const. art. IV, § 13, and 

therefore violated the separation of powers clause.20

In 1998, 2 years after we decided Bainbridge, the Legislature 

amended § 60-6,209 to require offenders to apply to the DMV 

for a recommendation that the Board of Pardons issue a reprieve 

from a 15-year license revocation.21 But the Legislature did not 

authorize such an application for an offender whose license 

was revoked under § 60-6,198.

In 2011, the Legislature amended Neb. Rev. Stat. 

§ 60-4,118.06 (Supp. 2011). Under specific circumstances, 

§ 60-4,118.06 authorizes the director of the DMV to issue an 

ignition interlock permit allowing the operation of a motor 

vehicle equipped with an ignition interlock device. The amendment added subsection (3)(a), which precludes the DMV from 

issuing an ignition interlock permit to any person except in 

cases of a violation of one of the specified statutes, which do 

not include § 60-6,198.22

[5,6] Our case law clearly establishes that when a motor 

vehicle operator’s license revocation must be part of a court’s 

judgment of conviction in a criminal case, as distinguished 

from an authorized term of probation, it is a distinct part of the 

offender’s punishment for the crime. Thus, a district court cannot later reduce the revocation period pursuant to an offender’s 

application to amend the terms of his or her probation. Because 

the license revocation requirement under § 60-6,198 is not a 

term of probation and the statute does not authorize a court to 

impose it as such, the Nebraska Constitution prohibits a court 

from later commuting the original sentence.

[7,8] We recognize that the court’s statement from the 

bench was inconsistent with its written order of probation. 

But to vest an appellate court with jurisdiction, Neb. Rev. 

20 See Neb. Const. art. II, § 1.

21 See 1998 Neb. Laws, L.B. 309, § 18.

22 See 2011 Neb. Laws, L.B. 667, § 29.
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STATE v. IRISH

Cite as 298 Neb. 61

Stat. § 25-1912 (Reissue 2016) requires a criminal defendant 

to perfect an appeal within 30 days of the judgment.23 In a 

criminal case, the judgment is the sentence.24 Irish did not 

appeal. We therefore agree with the district court that it lacked 

jurisdiction over Irish’s request that it reduce his license revocation period.

CONCLUSION

We conclude that the district court lacked jurisdiction to 

consider Irish’s untimely challenge to its sentencing order 

through a motion to modify or clarify the probation order. 

Accordingly, we dismiss Irish’s appeal.

Appeal dismissed.

23 See, e.g., State v. Meints, 291 Neb. 869, 869 N.W.2d 343 (2015); State v. 

Ruffin, 280 Neb. 611, 789 N.W.2d 19 (2010).

24 Dugan v. State, 297 Neb. 444, 900 N.W.2d 528 (2017).