State v. Ellis
State v. Ellis
Opinion of the Court
This appeal once again presents the question of how the habitual criminal statute, Neb. Rev. Stat. § 29-2221 (Reissue 1979), should be interpreted. The appellant, Roy L. Ellis, was informed against in a three-count amended information. The first count charged him with the robbery of property of Kentucky Fried Chicken from the personal protection of one Nick Gann, in violation of Neb. Rev. Stat. § 28-324 (Reissue 1979), a Class II felony. The second count charged Ellis with the use of a firearm to commit the felony, in violation of Neb. Rev. Stat. §28-1205 (Reissue 1979), a Class III felony. The third count charged him with being an habitual criminal, in violation of § 29-2221. The jury found Ellis guilty as charged of robbery and use of a firearm. Section 29-2221 provides in part: “Whoever
Ellis has filed two briefs in this case. One is filed by his court-appointed attorney, assigning as error the fact that the trial court was wrong in not dismissing the habitual criminal charge against Ellis because his two prior felony convictions used as the basis to find him an habitual criminal occurred simultaneously as part of one transaction. Ellis has likewise filed a brief, pro se, alleging that his federal constitutional right to due process of law was violated when the State’s representative allowed false testimony by its own witness to go uncorrected, even though the testimony was unsolicited by the State’s representative.
We first address Ellis’ pro se assignment of error, because it is wholly without merit and can be disposed of easily. An examination of the record discloses that the matters about which Ellis complains concern testimony given by one Devem Rasco. Ms. Rasco testified at the trial as a witness on behalf of the State and identified Ellis as the one who had robbed the Kentucky Fried Chicken where she was employed. While there are some minor discrepancies in Ms. Rasco’s testimony, an examination of the
The error assigned by Ellis’ court-appointed counsel, however, poses a more difficult problem. By a divided court, with three justices dissenting, this court recently held, in State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979), that the habitual criminal statute could be applied to an individual even though the two previous offenses occurred on the same date and were prosecuted in the same information and resulted in concurrent sentences. As the dissent in State v. Pierce indicated, this holding is the minority view in the United States.
On further reflection, we now believe that we were in error in our holding in State v. Pierce, and it should be overruled. An examination of § 29-2221, the habitual criminal statute, makes it clear that what the Legislature was attempting to accomplish when it enacted the habitual criminal statute was to
We believe that the purpose of enacting the habitual criminal statute is to serve as a warning to previous offenders that if they do not reform their ways they may be imprisoned for a considerable period of time, regardless of the penalty for the specific crime charged. See Dye v. Skeen, Warden, 135 W. Va. 90, 62 S.E.2d 681 (1950). As noted by the dissent in State v. Pierce, supra at 444, 283 N.W.2d at 12: “ ‘Recidivist statutes are enacted in an effort to deter and punish incorrigible offenders. * * * They are intended to apply to persistent violators who have not responded to the restraining influence of conviction and punishment.’ State v. Conley, 222
We believe we should join the majority of jurisdictions in their interpretation of the habitual criminal statute, and now, therefore, declare that in order to warrant the enhancement of the penalty under the Nebraska habitual criminal statute, § 29-2221, the prior convictions, except the first conviction, must be for offenses committed after each preceding conviction, and all such prior convictions must precede the commission of the principal offense. For that reason we believe that the decision of the trial court finding the defendant Ellis to be an habitual criminal must be set aside and the matter remanded to the District Court for further sentencing in accordance with this opinion.
Reversed and remanded with directions.
Dissenting Opinion
dissenting.
State v. Pierce, 204 Neb. 433, 283 N.W.2d 6 (1979), is overruled and, as the reason for its demise, the majority determines that habitual criminal statutes “ ‘ “are enacted in an effort to deter and punish incorrigible offenders [and] are intended to apply to persistent violators who have not responded to the restraining influence of conviction and punishment.” ’ ” That such statutes are enacted to punish incorrigible offenders is obvious, but the deterrent effect, if any, may as logically be said to consist solely of the loss of opportunity to commit crimes because of the longer incarceration. The majority has chosen to substitute doubtful sociological assumptions (without any legislative history to show that the Legislature shared its view) for the logical construction of a statute as set forth by the majority in Pierce. The majority in Pierce suggested that the prevailing view in this case should appropriately have been addressed to the Legislature. We now have eliminated that cumbersome task from the appellant.
Dissenting Opinion
dissenting.
I join in Judge White’s dissent, and add the observation that, generally, where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of its intent. Erspamer Advertising Co. v. Dept. of Labor, ante p. 68, 333 N.W.2d 646 (1983). See, also, State v. Hocutt, 207 Neb. 689, 300 N.W.2d 198 (1981).
Reference
- Full Case Name
- State of Nebraska, Appellee, v. Roy L. Ellis, Appellant
- Cited By
- 35 cases
- Status
- Published