State v. Warner ( 2015 )

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judge “by oath or affirmation.”7 Without the name of any offi-
cer (or perhaps even a “John Doe” designation of some officer
identified by means of the office he or she held), the applica-
tion wholly failed to support issuance of a writ.
But instead of simply denying the writ, the district court,
without any citation to authority under the habeas corpus stat-
utes, directed the State to file a response. At this point, the
court ceased to follow the procedure dictated by the habeas
corpus statutes and basically made up its own procedure. It is
the duty of the court on presentation of a petition for a writ
of habeas corpus to examine it, and if it fails to state a cause
of action, the court must enter an order denying a writ.8 If
the district court had simply followed the statutory procedure
and summarily denied the writ for failure to comply with the
statutes, this appeal would have been very straightforward.
And this court would have had no need to discuss jurisdic-
tion, venue, waiver, and the requirement to attach a copy of
the commitment.
I do not disagree with the majority’s reasoning or conclusion
or the law that it cites. The district court’s irregular procedure
introduced complexity into an otherwise simple process. I
write separately to encourage trial courts not to follow the trail
blazed by the court below, but, rather, to adhere to the simple
statutory procedure.
7
§ 29-2801.
8
See Dixon v. Hann, 160 Neb. 316, 70 N.W.2d 80 (1955).
State of Nebraska, appellant, v.
R enae K. Warner, appellee.
___ N.W.2d ___
Filed May 22, 2015. No. S-14-345.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional
question that does not involve a factual dispute as a matter of law.
2. ____: ____. Before reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction over the matter
before it.
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3. Criminal Law: Judgments: Jurisdiction: Appeal and Error. In the absence of
specific statutory authorization, the State, as a general rule, has no right to appeal
an adverse ruling in a criminal case.
4. ____: ____: ____: ____. Neb. Rev. Stat. § 29-2315.01 (Reissue 2008) grants the
State the right to seek appellate review of adverse criminal rulings and specifies
the special procedure by which to obtain such review. Strict compliance with
§ 29-2315.01 is required to confer jurisdiction.
5. Prosecuting Attorneys: Final Orders: Appeal and Error. By its language, Neb.
Rev. Stat. § 29-2315.01 (Reissue 2008) clearly requires that an error proceeding
cannot be brought until after a “final order” has been entered.
6. Criminal Law: Final Orders. A judgment entered during the pendency of a
criminal cause is final when no further action is required to completely dispose
of the cause pending.
7. Prosecuting Attorneys: Final Orders: Appeal and Error. The test of final-
ity of an order or judgment for the purpose of appeal under Neb. Rev. Stat.
§ 29-2315.01 (Reissue 2008) is whether the particular proceeding or action was
terminated by the order or judgment.
Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Appeal dismissed.
Joe Kelly, Lancaster County Attorney, Ryan Mick and
Richard Grabow, and Meridith Wailes, Senior Certified Law
Student, for appellant.
Dennis R. Keefe, Lancaster County Public Defender, and
John C. Jorgensen for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
The State filed this appeal as an error proceeding pur-
suant to Neb. Rev. Stat. § 29-2315.01 (Reissue 2008). In
this criminal case, Renae K. Warner was charged with two
felony counts of theft by deception, Neb. Rev. Stat. § 28-512
(Reissue 2008). The information alleged that Warner had
written 55 bad checks on an account at one bank, constitut-
ing one felony count, and 23 bad checks on an account at
a second bank, constituting the second felony count. Based
on its reading of § 28-512, the district court for Lancaster
County reasoned that the State should have aggregated all of
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the alleged incidents into a single count of theft by deception
rather than charging two separate counts and, therefore, sus-
tained Warner’s motion to quash the information. Although it
sustained the motion to quash, the court gave the State 7 days
to file an amended information. Instead of filing an amended
information within that time, the State filed an application to
docket error proceedings.
A threshold issue in this appeal is whether, under
§ 29-2315.01, the State may appeal an order which sustained a
motion to quash but allowed the State time to file an amended
information. We conclude that because there was no final
order, the State may not take an appeal under § 29-2315.01
and we lack jurisdiction to consider this error proceeding. We
therefore dismiss this appeal.
STATEMENT OF FACTS
The State filed an information against Warner in which it
alleged that she had committed theft by deception in viola-
tion of § 28-512 when she wrote numerous bad checks drawn
on accounts at two different banks. The State charged Warner
with two counts of theft by deception—one count related to
checks drawn on the first bank and a second count related
to checks drawn on the second bank. The State alleged that
each count involved over $1,500 and was therefore a sepa-
rate Class III felony under Neb. Rev. Stat. § 28-518(1) (Cum.
Supp. 2014).
Warner filed a motion to quash and asserted that the State
had inappropriately charged the incidents as two counts. She
argued that pursuant to § 28-518(7), the allegations should
have been charged as one offense. Section 28-518(7) provides:
“Amounts taken pursuant to one scheme or course of conduct
from one or more persons may be aggregated in the indictment
or information in determining the classification of the offense,
except that amounts may not be aggregated into more than
one offense.”
The district court sustained Warner’s motion to quash and
provided its rationale. The court explained that prior to an
amendment that was effective August 30, 2009, § 28-518(7)
did not refer to “one or more persons” and instead it referred
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to “[a]mounts taken pursuant to one scheme or course of
conduct from one person.” The court stated that the amended
language “has to mean something,” and the court therefore
concluded that the allegations in this case could not be charged
as more than one offense even though the allegations involved
two different banks. In its order filed April 10, 2014, the
court sustained Warner’s motion to quash, but the court fur-
ther stated that the State “is given 7 days to file an Amended
Information, if it chooses to do so.” The court set arraignment
on any amended information for April 28 and ordered Warner
to appear. No party sought dismissal, and the district court did
not dismiss the case.
The State did not file an amended information. Instead, on
April 17, 2014, the State filed an application for leave to docket
an appeal of the April 10 order pursuant to § 29-2315.01. On
April 17, the district court signed off on the application, stating
that it found that the application had been timely filed and was
in conformity with the truth. The court further found that the
part of the record that the State proposed to present on appeal
was adequate for a proper consideration of the matter. The
State filed the application with the Nebraska Court of Appeals
on April 18.
On May 21, 2014, the Court of Appeals granted the State’s
application for leave to docket error proceedings. Thereafter,
we moved the case to our docket on our own motion. Warner
moved this court to dismiss the appeal for the reason that the
district court’s ruling was not a final order and we lacked
jurisdiction. We overruled Warner’s motion for summary dis-
missal without prejudice to future dismissal for lack of juris-
diction. We allowed both parties the opportunity to address
the jurisdictional issue in their briefs. As discussed below,
we find the jurisdictional issue to be dispositive and dismiss
this appeal.
ASSIGNMENT OF ERROR
The State claims that the district court erred when it sus-
tained Warner’s motion to quash and argues that it properly
charged Warner with two counts of theft by deception because
she engaged in two separate schemes.
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STANDARD OF REVIEW
[1] An appellate court determines a jurisdictional question
that does not involve a factual dispute as a matter of law. State
v. Smith, 288 Neb. 797, 851 N.W.2d 665 (2014).
ANALYSIS
[2] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. State v. Alfredson, 287
Neb. 477, 842 N.W.2d 815 (2014). Therefore, we first consider
Warner’s argument that the April 10, 2014, order was not a
final order from which the State could properly bring an error
proceeding. We agree with Warner that there was no final order
as required under § 29-2315.01, and we therefore conclude that
we do not have jurisdiction to consider this error proceeding
and dismiss this appeal.
[3,4] In the absence of specific statutory authorization, the
State, as a general rule, has no right to appeal an adverse rul-
ing in a criminal case. State v. Penado, 282 Neb. 495, 804
N.W.2d 160 (2011). Section 29-2315.01 grants the State the
right to seek appellate review of adverse criminal rulings and
specifies the special procedure by which to obtain such review.
State v. Penado, supra. This court has consistently maintained
that strict compliance with § 29-2315.01 is required to confer
jurisdiction. State v. Penado, supra.
[5] Section 29-2315.01 generally provides that a prosecuting
attorney may take exception to a ruling or decision by pre-
senting to the trial court an application for leave to docket an
appeal and, then, after the trial court has made certain determi-
nations, presenting the application to the appellate court. With
regard to the time for presenting the application to the respec-
tive courts, §29-2315.01 provides that the “application shall be
presented to the trial court within twenty days after the final
order is entered in the cause” and that “[t]he prosecuting attor-
ney shall then present such application to the appellate court
within thirty days from the date of the final order.” (Emphasis
supplied). By its language, the statute clearly requires that an
error proceeding cannot be brought until after a “final order”
has been entered.
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[6,7] In considering the final order requirement in the con-
text of § 29-2315.01, we have stated the following: “A judg-
ment entered during the pendency of a criminal cause is final
when no further action is required to completely dispose of the
cause pending.” State v. Penado, 282 Neb. at 500, 804 N.W.2d
at 164. The test of finality of an order or judgment for the pur-
pose of appeal is whether the particular proceeding or action
was terminated by the order or judgment. Id.
The Nebraska appellate courts have previously concluded in
several cases that jurisdiction over error proceedings brought
under § 29-2315.01 was lacking when the State appealed from
an order that was not a final order. For example, in State v.
Penado, supra, we concluded that we lacked jurisdiction when
the State attempted to appeal from an order in which the dis-
trict court found that the defendant was not competent to stand
trial; we reasoned that because the order did not terminate the
proceedings and further action was required to completely dis-
pose of the cause, the order was not a final order as required
by § 29-2315.01. In State v. Wieczorek, 252 Neb. 705, 565
N.W.2d 481 (1997), we concluded that we were without juris-
diction to consider an error proceeding because, although the
trial court directed verdict on three of four counts, the defend­
ant was convicted of the fourth count and sentencing had not
yet occurred on that count when the State filed its application
for leave to docket an appeal. See, also, State v. Coupens,
20 Neb. Ct. App. 485, 825 N.W.2d 808 (2013) (order granting
defendant’s motion to dismiss one of two counts on speedy
trial grounds not final order from which State could take error
proceedings, because second count still pending and order did
not dispose of action).
In the present case, the district court filed an order on April
10, 2014, in which it sustained Warner’s motion to quash
but stated that the State “is given 7 days to file an Amended
Information, if it chooses to do so.” In the order, the court
also set arraignment on any amended information for April
28 and ordered Warner to appear. Within 20 days after the
April 10 order, the State presented to the district court an
application for leave to docket an appeal of the April 10
order, and within 30 days of the order, the State presented the
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application to the Court of Appeals. Therefore, if the April 10
order was a final order, the State met the time requirements
of § 29-2315.01.
We determine on this record, however, that because further
action was required to completely dispose of the cause in the
district court, the April 10, 2014, order did not terminate the
proceedings below and was not a final order for purposes of
§ 29-2315.01. The court sustained Warner’s motion to quash
but allowed the State time to amend the information. No party
sought dismissal, and the district court did not dismiss the
case, a circumstance upon which we have previously com-
mented. In Dobrusky v. State, 140 Neb. 360, 363, 299 N.W.
539, 541 (1941), the district court filed an order in which it
sustained the defendant’s motion to quash the information,
but “the trial court neither dismissed the proceedings nor
discharged the defendant.” This court found the situation “to
be analogous to sustaining a general demurrer in a civil case,
not followed by the dismissal of the action” and noted that “it
clearly appears from the record presented that the district court
by the limitations of its order has, in effect, retained jurisdic-
tion to have a disposal of this case made on the merits in the
regular course of proceedings.” Id. This court concluded that
“it cannot be said that the mere sustaining of the motion to
quash operated as a discharge of the defendant by due course
of law, when the trial court refrained from entering such a
judgment.” Id. Applying the principles to which reference is
made in Dobrusky to the present case, the April 10 order was
not a final order.
We have recently reached a similar conclusion with respect
to a civil case. In Nichols v. Nichols, 288 Neb. 339, 346-47,
847 N.W.2d 307, 313-14 (2014), we stated that “no appeal can
be taken from an order that grants a motion to dismiss a com-
plaint but allows time in which to file an amended complaint.”
We reasoned in Nichols that “such a conditional order is not a
judgment” and therefore not a final judgment for purposes of
determining whether the order is appealable. Id. at 347, 847
N.W.2d at 314. The appeal in Nichols was dismissed.
In the present case, not only did the district court in the
April 10, 2014, order refrain from dismissing the action, the
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court affirmatively allowed the State time to file an amended
information and scheduled a date for an arraignment on any
amended information that might be filed. Furthermore, the
record reveals that after the State filed its application for error
proceedings, the district court held a hearing at which counsel
for both parties were present and thereafter filed an order stat-
ing that further proceedings in the district court were stayed
pending resolution of the State’s error proceeding.
It therefore cannot be said that the April 10, 2014, order
terminated the proceedings in this case or that no further action
was required to completely dispose of the cause pending in the
district court. According to the record, the court contemplated
further proceedings, and the court stayed proceedings pend-
ing resolution of this appeal. We therefore determine that the
April 10 order was not a “final order” within the meaning of
§ 29-2315.01, and we conclude that we lack jurisdiction to
consider the error proceeding brought by the State.
For completeness, we note that the State suggests that even
if we conclude that the district court’s order of April 10, 2014,
is not a final order under § 29-2315.01, we should neverthe-
less consider the substance of this appeal, because the issue the
State raises could evade review. The State cites the Nebraska
Supreme Court’s decision in State v. Bourke, 237 Neb. 121,
464 N.W.2d 805 (1991), in which the State appealed an order
in which the district court sustained in part a motion to quash
an information and declared unconstitutional a part of the
statute pursuant to which the defendant was being charged. In
Bourke, the Nebraska Supreme Court stated: “Although it is
possible that this issue is not appealable as a final order at this
time, we consider it, since in its posture it could evade review
at a later time.” 237 Neb. at 122, 464 N.W.2d at 806. The State
asserts that the issue it raises in this appeal regarding whether
crimes can be separately charged under § 28-512 could simi-
larly evade review.
We do not accept the State’s suggestion that we consider
the merits of this appeal notwithstanding the absence of a
final order. We do not agree with the State that the substance
of its claim would truly “evade review” where the State
could still bring an error proceeding to raise the claim after
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the prosecution in the instant case is completed and a final
order has been entered. While it is possible that the specific
defendant in this case could “evade” conviction in the manner
in which the State originally charged the defendant, the legal
issue could still be reviewed by an appellate court in an error
proceeding brought by the State after a final order is entered
in this prosecution. And although double jeopardy may prevent
the State from retrying this specific defendant if the State’s
arguments regarding § 28-512 succeed on appeal and the
exception is sustained, we have recognized that “[t]he purpose
of appellate review pursuant to § 29-2315.01 is to provide an
authoritative exposition of the law to serve as precedent in
future cases.” State v. Figeroa, 278 Neb. 98, 101, 767 N.W.2d
775, 779 (2009).
We are aware that this court has recognized a public inter-
est exception to the mootness doctrine when an issue might
otherwise evade appellate review. See, e.g., In re Interest
of Elizabeth S., 282 Neb. 1015, 809 N.W.2d 495 (2012).
However, the exception cannot be used to overcome specific
statutory limits on an appellate court’s jurisdiction, such as the
“final order” requirement in §29-2315.01. We therefore disap-
prove State v. Bourke, supra, to the extent it suggests that there
are circumstances in which an appellate court may consider the
merits of an error proceeding even though the appellate court
lacks jurisdiction under § 29-2315.01.
CONCLUSION
We conclude that the April 10, 2014, order was not a
final order under § 29-2315.01 and that we lack jurisdiction
to consider this error proceeding. We therefore dismiss the
State’s appeal.
Appeal dismissed.