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298 Nebraska Reports

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 sentence 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, Mark J. 

Young, Judge, on appeal thereto from the County Court for 

Hall County, Philip M. Martin, 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, Kelch, and

Funke, JJ.

Nebraska Supreme Court Online Library

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

02/16/2018 01:10 AM CST
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Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE v. HUSTON

Cite as 298 Neb. 323

Kelch, 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 interpretation 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 Advance Sheets

298 Nebraska Reports

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 purpose 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 Advance Sheets

298 Nebraska Reports

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 judgment. 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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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 mitigates the punishment for Huston’s offense. Before the amendment, 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 

defendant 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., mitigates 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 version 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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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 obligated to engage in an analysis that is not necessary to adjudicate 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).