State v. Harris , 307 Neb. 237 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. HARRIS
Cite as 307 Neb. 237
State of Nebraska, appellant and
cross-appellee, v. Jack E. Harris,
appellee and cross-appellant.
___ N.W.2d ___
Filed September 25, 2020. Nos. S-19-130, S-19-133.
1. Jurisdiction. A question of jurisdiction is a question of law.
2. Judgments: Appeal and Error. Appellate courts independently review
questions of law decided by a lower court.
3. ____: ____. The construction of a mandate issued by an appellate court
presents a question of law, on which an appellate court is obligated to
reach a conclusion independent of the determination reached by the
court below.
4. Jurisdiction: Appeal and Error. 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.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
6. Final Orders: Appeal and Error. Among the three types of final orders
which may be reviewed on appeal is an order affecting a substantial
right made during a special proceeding.
7. Actions: Words and Phrases. An action involves prosecuting the
alleged rights between the parties and ends in a final judgment, whereas
a special proceeding does not.
8. Final Orders. Whether an order affects a substantial right depends
on whether it affects with finality the rights of the parties in the sub-
ject matter.
9. ____. Whether an order affects a substantial right depends on whether
the right could otherwise effectively be vindicated.
10. Final Orders: Appeal and Error. An order affects a substantial right
when the right would be significantly undermined or irrevocably lost by
postponing appellate review.
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STATE v. HARRIS
Cite as 307 Neb. 237
11. Appeal and Error: Words and Phrases. In appellate procedure, a
“remand” is an appellate court’s order returning a proceeding to the
court from which the appeal originated for further action in accordance
with the remanding order.
12. Courts: Appeal and Error. After receiving a mandate, a trial court is
without power to affect rights and duties outside the scope of the remand
from an appellate court.
13. Courts: Judgments: Appeal and Error. A lower court may not modify
a judgment directed by an appellate court; nor may it engraft any provi-
sion on it or take any provision from it.
14. Judgments: Appeal and Error. No judgment or order different from, or
in addition to, the appellate mandate can have any effect.
15. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial
court is without power to affect rights and duties outside the scope of the
remand from an appellate court, any order attempting to do so is entered
without jurisdiction and is void.
Appeals from the District Court for Douglas County:
William B. Zastera and Jodi L. Nelson, Judges. Appeal in
No. S-19-130 dismissed. Judgment in No. S-19-133 vacated,
and cause remanded with directions.
Douglas J. Peterson, Attorney General, and James D. Smith,
Solicitor General, for appellant.
Sarah P. Newell, of Nebraska Commission on Public
Advocacy, for appellee.
Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
Moore and Welch, Judges.
Papik, J.
Two decades ago, following a jury trial, Jack E. Harris was
convicted of first degree murder and use of a deadly weapon
to commit a felony. His convictions were affirmed on direct
appeal. As is often the case in such matters, years of litiga-
tion followed, in which Harris filed many motions collaterally
attacking his convictions and sentences. After we remanded
for further proceedings in an appeal involving such collat-
eral attacks in 2017, the district court granted Harris’ motion
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STATE v. HARRIS
Cite as 307 Neb. 237
for new trial and, later, his motion for absolute discharge
on speedy trial grounds. On the State’s appeal from these
orders, we conclude that the district court did not comply
with our mandate in an earlier appeal and that its order grant-
ing Harris a new trial and absolute discharge were thus void.
Accordingly, we vacate those orders and remand the cause for
further proceedings.
I. BACKGROUND
1. Conviction, Earlier Proceedings,
and Appeals by Harris
In 2000, following a jury trial, Harris was convicted of
first degree murder and use of a deadly weapon to commit a
felony. He was sentenced to life imprisonment on the murder
conviction and 10 to 20 years’ imprisonment on the weapons
conviction, to be served consecutively. We affirmed on direct
appeal. See State v. Harris, 263 Neb. 331, 640 N.W.2d 24
(2002) (Harris I).
Several unsuccessful motions and appeals by Harris fol-
lowed. See State v. Harris, 267 Neb. 771, 677 N.W.2d 147
(2004) (Harris II); State v. Harris, 274 Neb. 40, 735 N.W.2d
774 (2007) (Harris III); State v. Harris, 292 Neb. 186, 871
N.W.2d 762 (2015) (Harris IV); and State v. Harris, 296 Neb.
317, 893 N.W.2d 440 (2017) (Harris V).
In Harris IV, we reversed the district court order that dis-
missed Harris’ second postconviction motion, which had been
filed simultaneously with a new trial motion and a motion for
writ of error coram nobis. Harris’ motions rested on allega-
tions (1) that Howard “Homicide” Hicks, Harris’ accomplice
and a key witness in Harris’ trial, disclosed to fellow inmate
Terrell McClinton that Hicks had lied during his testimony
and that Hicks alone, not Harris, had killed the victim; (2)
that another witness, Curtis Allgood, generally corroborated
McClinton’s account and provided details placing Hicks near
the crime scene at the time of the murder; and (3) that Harris
was unaware of this information until McClinton’s contact with
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STATE v. HARRIS
Cite as 307 Neb. 237
Harris’ attorney in 2006 and was prevented from discovering
the information earlier because of misconduct by the prosecu-
tor and the State’s witness.
The district court had earlier granted Harris leave to file a
third amended postconviction motion raising claims similar
to the second motion’s and additional claims concerning the
State’s plea agreement with Hicks. Although the court, the par-
ties, and the evidence gave indications that the third amended
postconviction motion was addressed at the subsequent June
28, 2013, hearing, Harris had not filed it. At the hearing, the
district court announced that the matter was before the court
on the third amended motion for postconviction relief and
took judicial notice of the bill of exceptions for Harris’ trial
in 1999. The State did not assert that Harris had failed to file
the third amended motion, but instead offered a copy of the
motion and the court’s docket entries showing that Harris had
been given leave to file the motion. Harris presented evidence
that was relevant only to his third amended motion for postcon-
viction relief. Following the hearing, the district court’s order
expressly dismissed the second postconviction motion, and
Harris appealed.
In Harris IV, we characterized the 2013 hearing as a hear-
ing on the third amended postconviction motion. We held that
“a court presented with a motion for postconviction relief
which exists simultaneously with a motion seeking relief under
another remedy must dismiss the postconviction motion with-
out prejudice when the allegations, if true, would constitute
grounds for relief under the other remedy sought.” Harris
IV, 292 Neb. at 191, 871 N.W.2d at 766. We determined that
because the motion for new trial was time barred under the
statute then in effect and because there was no possibility of
obtaining relief through a writ of coram nobis, the district
court erred in dismissing the motion for postconviction relief.
See Neb. Rev. Stat. § 29-2103 (Reissue 2008). We remanded
for consideration of “the postconviction motion” on the merits.
Harris IV, 292 Neb. at 194, 871 N.W.2d at 768.
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STATE v. HARRIS
Cite as 307 Neb. 237
On remand, the district court did not conduct a new evi-
dentiary hearing but considered the evidence presented at the
2013 evidentiary hearing. It denied postconviction relief, but
given the matters addressed at the 2013 hearing, it was unclear
whether the district court’s order disposed of the second
postconviction motion or the third amended postconviction
motion involving similar and additional claims. The court’s
order, signed on March 3, 2016, referred to the “[s]econd”
motion for postconviction relief and addressed claims raised
only in the second motion. It stated that “[t]he matter came
on for full evidentiary hearing on June 28, 2013.” The court
did not address Harris’ claims regarding Hicks’ plea agree-
ment raised only in the third amended postconviction motion,
but specifically ruled on his claims that the State suppressed
information possessed by Allgood before Harris’ trial and by
McClinton before Harris’ trial, direct appeal, or postconvic-
tion proceedings. Harris appealed, which led to our decision
in Harris V.
In Harris V, we examined the record from the 2013 post-
conviction hearing and took judicial notice of our previous
records and decisions in Harris’ case. We determined that the
district court properly denied relief on Harris’ claim that the
State suppressed evidence of McClinton’s statements in his
affidavit, but that it failed to apply the correct standard to
Harris’ claim that the State suppressed Allgood’s statements at
Harris’ 1999 murder trial and failed to address Harris’ claims
from the third amended postconviction motion concerning the
State’s plea agreement with Hicks. We affirmed in part, and in
part reversed and remanded for further proceedings to clarify
which postconviction motion the court intended to rule on in
the March 2016 order and, if necessary, to enter an order to
dispense with all of Harris’ claims for relief:
The court’s reasoning that no suppression occurred
because the prosecutor did not know about Allgood’s
statements to investigators was incorrect. Under both
federal and state law, the prosecutor had a duty to learn
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STATE v. HARRIS
Cite as 307 Neb. 237
of favorable material evidence known to others acting on
the government’s behalf in the case. Thus, the State’s duty
to disclose favorable material evidence existed even if the
evidence was known only to police investigators and not
to the prosecutor.
Further, the court’s summary conclusion that Allgood’s
statements were not exculpatory did not comply with
the applicable standards for evaluating Harris’ claims.
Favorable evidence includes both exculpatory and
impeachment evidence.
Harris alleged in his motion that Allgood’s statements
would have corroborated his alibi defense and contra-
dicted Hicks’ testimony that he left the murder scene
with Harris and drove around with him, disposing of
evidence and distributing the money. Harris also alleged
that he would have cross-examined Hicks about his con-
tacts with [Corey] Bass[, an alleged drug dealer for
whom McClinton said Hicks killed people]. His trial
attorney stated that knowing whether Hicks “was with
others or alone in terms of the story that he related”
may have undermined Hicks’ credibility and reinforced
Harris’ alibi.
The court did not consider whether Allgood’s state-
ments to the officer would have impeached Hicks’ cred-
ibility. Nor did the court explain why it concluded that
Allgood’s statements were not “potentially exculpatory
information.”
As explained, we do not have the bill of exceptions
from Harris’ trial. Whether the State suppressed mate-
rial exculpatory information by not disclosing Allgood’s
statements must be evaluated in the light of the trial
evidence. The court’s summary conclusion does not sat-
isfy that requirement. Accordingly, we remand the cause
for further clarification as to whether Allgood’s state-
ments were not exculpatory or would not have impeached
Hicks’ credibility.
....
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STATE v. HARRIS
Cite as 307 Neb. 237
[W]e cannot determine from the record whether the
district court intentionally or erroneously failed to rule on
Harris’ claims regarding Hicks’ plea agreement. Though
an argument can be made that the parties consented to
try all of the claims set forth in Harris’ third amended
motion for postconviction relief, making such determina-
tion would be needlessly speculative. The better course
is for this matter to be remanded to the district court for
clarification as to which motion the court intended to
rule on and, if necessary, the entry of an order which dis-
penses with all of Harris’ claims for relief.
....
We conclude that the court properly denied relief
on Harris’ claim that the State suppressed evidence of
McClinton’s statements in his affidavit. We conclude that
the court applied the wrong standards in denying Harris
relief on his claim that the State suppressed Allgood’s
statements to police by focusing only on the prosecutor’s
knowledge of Allgood’s statements, by failing to consider
whether Allgood’s statements would have impeached
Hicks’ credibility, and by failing to examine whether
Allgood’s statements were material in the light of the
trial evidence. Finally, the court erred in failing to accu-
rately set forth which motion for postconviction relief it
intended to address.
If the court concludes that the State suppressed mate-
rial evidence regarding Allgood’s statements to police or
Hicks’ plea agreement, it must evaluate the materiality
of that suppression cumulatively. That is, the prejudicial
effect of any new suppression must be considered cumu-
latively with the State’s known suppression of [Officer
Leland Cass’ police] report.
Harris V, 296 Neb. at 342-46, 893 N.W.2d at 458-60. Following
the release of our opinion, we issued our mandate ordering the
district court to “proceed to enter judgment in conformity with
the judgment and opinion of this court.”
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STATE v. HARRIS
Cite as 307 Neb. 237
2. New Trial Order
On June 15, 2017, after our mandate in Harris V issued,
Harris filed his third amended motion for postconviction relief,
which he had previously been given leave to file, along with a
motion for new trial based on newly discovered evidence. See
Neb. Rev. Stat. § 29-2101(5) (Reissue 2016). In his motion for
new trial, Harris alleged (1) that Hicks disclosed to McClinton
that Hicks had lied during his testimony and that Hicks alone,
not Harris, had killed the victim; (2) that Allgood corroborated
McClinton’s account of Hicks’ statement; (3) that the prosecu-
tor misrepresented or allowed Hicks to misrepresent Hicks’
plea agreement during Harris’ trial, documentation of which
Harris’ counsel obtained in 2010; and (4) that another witness
at Harris’ trial, Tony Bass, later told another inmate that he had
lied during his testimony. Harris referenced supporting affida-
vits and other documentary evidence attached to the motion.
He concluded by requesting a hearing to substantiate his claims
by affidavit or testimony.
A hearing was held on Harris’ motions on July 24, 2017,
Judge William B. Zastera presiding. The parties presented
arguments, but no evidence was offered or received.
On September 21, 2017, the district court entered an order
granting Harris’ motion for new trial and dismissing Harris’
third amended motion for postconviction relief.
Relevant to the mandate in Harris V, the district court stated:
On March 3, 2016, this Court denied [Harris’] Amended
Second Verified Motion for Postconviction Relief.
[Harris] timely appealed and the Nebraska Supreme Court
affirmed in part and reversed in part this Court’s prior
decision. . . .
At this juncture, [Harris] has filed a Third Amended
Verified Motion for Postconviction Relief and a Motion
for New Trial (Newly Discovered Evidence). In light of
the Nebraska Supreme Court’s findings in [Harris V], the
Court now considers the current motions filed by [Harris].
Quoting language from Harris IV, the district court deter-
mined that it had to consider Harris’ motion for new trial
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STATE v. HARRIS
Cite as 307 Neb. 237
before addressing the third amended motion for postconvic-
tion relief. The district court noted our finding in Harris IV
that Harris’ previous motion for new trial was barred by the
then-applicable statute of limitations, but found that the cur-
rent motion was not time barred by the current version of
§ 29-2103(4) (Reissue 2016). That section requires motions for
new trial based on newly discovered evidence to be brought
within 5 years of the verdict “unless the motion and support-
ing documents show the new evidence could not with reason-
able diligence have been discovered and produced at trial and
such evidence is so substantial that a different result may have
occurred.” § 29-2103(4). Accord § 29-2101(5).
The district court went on to observe that traditionally, new
trial was not granted for issues of impeachment, but that where
it appears the defendant has not been afforded a fair trial, it is
the court’s duty to grant new trial. See State v. Robinson, 198
Neb. 785, 255 N.W.2d 835 (1977). Moreover, it noted that in
the context of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), impeachment evidence can be of such
a weight that depriving the defendant of access to it can change
the outcome of trial. The district court stated that it was unclear
whether Harris would be procedurally barred from obtaining
a new trial under § 29-2103, but that it believed Harris was
entitled to a new trial because his constitutional rights had been
implicated. The court continued:
First, after reviewing the Bill of Exceptions, it is appar-
ent to this Court that material evidence was suppressed
at [Harris’] trial, whether done so intentionally or not.
Regardless of intent, it is clear that the entirety of [an offi-
cer’s] police report was not disclosed which contained the
exculpatory statements of . . . Allgood. Further, it is pos-
sible, that Allgood’s statements to the officer would have
corroborated [Harris’] alibi defense and permitted him to
impeach . . . Hicks’ credibility at [Harris’] trial. Second,
the Court finds that a new trial is also warranted because
the evidence reflects that the prosecutor misrepresented
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STATE v. HARRIS
Cite as 307 Neb. 237
or allowed Hicks to misrepresent the nature of Hicks’
plea agreement during [Harris’] trial.
The district court determined the suppression of this evidence
to be material and prejudicial.
The district court dismissed Harris’ third amended postcon-
viction motion without prejudice pursuant to Harris IV and
ordered him held without bail pending retrial.
Within 10 days, on September 29, 2017, the State filed a
motion “to reconsider, alter and/or amend” pursuant to Neb.
Rev. Stat. § 25-1329 (Reissue 2016). The State asserted that
the new trial order was made without receiving any evidence
or conducting an evidentiary hearing and that it was based on
incorrect legal standards. The State requested that the order be
amended or vacated.
As publicized and announced to the parties months before,
on October 1, 2017, Judge Zastera retired.
3. State Attempts to Appeal;
Appeal Dismissed
On October 23, 2017, before any ruling on its motion
for reconsideration, the State filed a notice of appeal of the
September 21 order for new trial. On December 11, this court
issued an order to show cause within 10 days why the appeal
should not be dismissed for lack of jurisdiction. The State did
not respond and later acknowledged in a motion to extend
brief date that it could not show cause. Harris moved to dis-
miss the appeal for lack of jurisdiction, and on March 28,
2018, we did so. On April 20, our mandate was filed in the
district court.
4. Order Ruling Motion for
Reconsideration Moot and
Granting Discharge
On May 1, 2018, Chief Justice Michael G. Heavican
appointed Judge Nathan B. Cox to preside over this matter,
replacing Judge Zastera.
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STATE v. HARRIS
Cite as 307 Neb. 237
On May 10, 2018, Harris moved for absolute discharge on
speedy trial grounds pursuant to Neb. Rev. Stat. § 29-1207
(Reissue 2016). He also moved to dismiss the State’s motion
for reconsideration as inapplicable to criminal cases and
untimely filed.
On June 28, 2018, Judge Cox recused himself upon Harris’
motion. On July 10, Chief Justice Heavican appointed Judge
Jodi L. Nelson to preside, and the order was filed in the district
court on July 16.
Judge Nelson subsequently conducted a hearing on the
pending motions. The following exchange occurred between
counsel for the State and Judge Nelson:
[State’s counsel]: Judge, I was wondering if we could
take up the — uh — motion for discharge first. Because
I think some of the documents that will pertain to the
motion to reconsider — uh — I plan to offer during that,
as well.
If the Court — I guess — technically thought that there
was merit to the motion for discharge, then I guess my
motion to reconsider probably is moot. Uh, but that was
just kind of my thought. I don’t know if —
THE COURT: Well, we’re going to hear them all today.
[State’s counsel]: Sure.
THE COURT: (Laughs.) So, how I decide them may be
another story; but I — I think we’re going to take them
up all today so that we can get what is pending — uh —
taken care of. I don’t particularly care what order you
want to do that in.
The parties proceeded to address the motion for absolute dis-
charge first, then the motion for reconsideration.
On February 4, 2019, Judge Nelson entered an order grant-
ing Harris’ motion for absolute discharge and ruling moot the
State’s motion for reconsideration and Harris’ motion to dis-
miss it. Judge Nelson determined that the State was permitted
to file a motion for reconsideration, but did not consider the
merits of the motion and concluded that the State had failed
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STATE v. HARRIS
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to show that any of the days between the September 21, 2017,
order and Harris’ motion for discharge on May 10, 2018, were
excludable for speedy trial purposes.
5. Present Appeals
On February 8, 2019, the State filed a notice of appeal
from the district court order entered September 21, 2017, that
granted Harris’ motion for new trial and from the order entered
February 4, “2018,” that sustained Harris’ motion for absolute
discharge and found the State’s motion for reconsideration
moot. We docketed this appeal as case No. S-19-133.
On the same date, the State filed an application for leave
to docket exception proceedings pursuant to Neb. Rev. Stat.
§ 29-2315.01 (Cum. Supp. 2018), which we granted.
On February 12, 2019, the district court granted the State’s
motion to stay the February 4 discharge order pending appeal,
“provided the State files any appeal today.”
Within 30 days of this court’s approval, on February 21,
2019, the State filed a notice of appeal in the district court pur-
suant to § 29-2315.01 from the district court’s orders entered
February 4, 2019, and September 21, 2017. We docketed this
appeal as case No. S-19-130.
On March 11, 2019, Harris moved to dismiss both appeals,
which we have consolidated, for lack of jurisdiction. We over-
ruled Harris’ motions to dismiss and reserved jurisdictional
issues until plenary submission of appeals.
The State has addressed both appeals in the same brief, with
a single list of assigned errors.
Harris has cross-appealed.
II. ASSIGNMENTS OF ERROR
The State assigns that the district court erred in (1) sustain-
ing Harris’ motion for new trial and not sustaining the State’s
motion for reconsideration, (2) sustaining Harris’ motion for
speedy trial discharge, and (3) sustaining Harris’ objection to
the prosecutor’s affidavit at the speedy trial discharge hearing.
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STATE v. HARRIS
Cite as 307 Neb. 237
On cross-appeal, Harris assigns that the district court erred
in (1) finding that Judge Zastera’s order granting Harris’ motion
for new trial was a final, appealable order and (2) determining
that the State could move for reconsideration of that order and
finding that Harris’ motion to dismiss the State’s motion for
reconsideration was moot.
III. STANDARD OF REVIEW
[1,2] A question of jurisdiction is a question of law. State v.
Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). Appellate courts
independently review questions of law decided by a lower
court. Id.
[3] The construction of a mandate issued by an appellate
court presents a question of law, on which an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below. State v. Henk, 299 Neb. 586,
909 N.W.2d 634 (2018).
IV. ANALYSIS
[4] As noted above, the validity of the State’s appeals is in
question, a matter we now must decide. 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. Fredrickson, 305 Neb. 165, 939 N.W.2d 385
(2020). This case comes to us under unusual circumstances.
The State attempts to challenge the new trial order and the
discharge order by filing not one but two notices of appeal,
invoking two different mechanisms for review: first, a con-
ventional direct appeal pursuant to Neb. Rev. Stat. § 25-1912
(Cum. Supp. 2018), which we docketed as case No. S-19-133,
and, later, exception proceedings pursuant to § 29-2315.01,
docketed as case No. S-19-130.
For reasons we will now explain, we conclude that the
direct appeal conferred jurisdiction on this court as to both the
new trial order and the discharge order, and we consider both
orders on the merits in case No. S-19-133. Consequently, we
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dismiss as moot the exception proceedings, docketed as case
No. S-19-130.
1. Case No. S-19-133: Direct Appeal
(a) New Trial Order
(i) State’s Right to Direct Appeal
The first question that confronts us in this case is whether
the State can appeal when a trial court grants a defendant’s
motion for new trial after the time for direct appeal of a crimi-
nal conviction has expired. The statutory scheme governing
motions for new trial in criminal cases does not speak to the
matter, see Neb. Rev. Stat. § 29-2101 et seq. (Reissue 2016),
and neither party has directed us to any cases in which we have
addressed this specific issue. We are thus faced with an issue
of first impression.
Harris contends that we need not spend much time on this
issue, because the State is precluded from appealing by a
well-established principle: that absent specific statutory autho-
rization, the State generally has no right to appeal an adverse
ruling in a criminal case. See State v. Thalken, 299 Neb. 857,
911 N.W.2d 562 (2018). This principle bars the State’s appeal,
Harris asserts, because the district court granted him a new
criminal trial and the State can point to no specific statute
authorizing an appeal. As we will explain, however, although
the district court purported to grant Harris a new criminal trial,
it does not follow that the new trial order itself was issued in
a criminal case.
In a number of contexts, we have held that the State may
mount a direct appeal to challenge adverse rulings when an
individual convicted and sentenced for a crime collaterally
attacks his or her conviction and sentence. We have held that
the State may appeal in habeas corpus proceedings, postcon-
viction proceedings, and cases arising under the DNA Testing
Act. See, e.g., State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871
(2016) (postconviction); Meyer v. Frakes, 294 Neb. 668, 884
N.W.2d 131 (2016) (habeas corpus); State v. Pratt, 273 Neb.
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817, 733 N.W.2d 868 (2007) (DNA Testing Act). See, also,
State v. Jerke, 302 Neb. 372, 923 N.W.2d 78 (2019) (reviewing
State’s appeal from district court order granting defendant’s
motion to vacate sentence and withdraw plea).
The foregoing proceedings are civil in nature. From the
earliest days of our state Constitution, habeas corpus pro-
ceedings have been designated as civil, see Morrill v. Taylor,
6 Neb. 236 (1877), and that has remained unchanged, see,
e.g., Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514
(2016). Similarly, postconviction proceedings are termed civil
by statute and may be appealed as provided for appeals in
civil cases. See Neb. Rev. Stat. §§ 29-3001(2) and 29-3002
(Reissue 2016). See, also, State v. Stewart, 242 Neb. 712,
496 N.W.2d 524 (1993) (citing U.S. Supreme Court opinion
for proposition that postconviction proceedings are civil).
By analogy, we have determined proceedings under the DNA
Testing Act are also civil in nature because, like postconvic-
tion proceedings, they too are a collateral attack on a convic-
tion, not part of the criminal proceeding itself. See, State v.
Pratt, supra; State v. Poe, 271 Neb. 858, 717 N.W.2d 463
(2006). Recognizing the civil nature of proceedings under
the DNA Testing Act and the absence of any restrictions on
the State’s right to appeal under that act, we have held that the
State may appeal from an adverse ruling in such a proceeding.
See State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014). As
we will explain, the same reasoning leads us to conclude that
the order that granted Harris’ motion for new trial based on
newly discovered evidence was appealable by the State pursu-
ant to § 25-1912.
Like habeas corpus proceedings, postconviction proceed-
ings, and proceedings under the DNA Testing Act, Harris’
motion for new trial based on newly discovered evidence was
a collateral attack on a final criminal judgment and not part of
the criminal proceeding itself. When a judgment is attacked in
a way other than by proceeding in the original action to have it
vacated, reversed, or modified, or by a proceeding in equity to
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prevent its enforcement, the attack is a collateral attack. State
v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019). The frame-
work under which Harris brought his motion for new trial fits
this description.
Harris sought a new trial pursuant to § 29-2101(5), under
which relief may be granted based on “newly discovered evi-
dence material for the defendant which he or she could not
with reasonable diligence have discovered and produced at the
trial” and which materially affects the defendant’s substantial
rights. A motion for new trial alleging newly discovered evi-
dence must be filed “within a reasonable time after the dis-
covery of the new evidence” and “cannot be filed more than
five years after the date of the verdict, unless the motion and
supporting documents show the new evidence could not with
reasonable diligence have been discovered and produced at
trial and such evidence is so substantial that a different result
may have occurred.” § 29-2103(4). In response to a motion
for new trial under § 29-2101(5) and following a hearing,
a court may “vacate and set aside the judgment and release
the person from custody or grant a new trial as appropri-
ate.” § 29-2102(3).
Under § 29-2101(5), as in other collateral attacks, Harris
sought to have the existing judgment vacated. Harris’ motion
did not occur in the original criminal proceeding: Harris could
and did move for new trial after the time for direct appeal had
expired. Thus, like habeas corpus proceedings, postconviction
proceedings, and proceedings under the DNA Testing Act,
Harris’ motion for new trial based on newly discovered evi-
dence was a collateral attack on a conviction, not part of the
criminal proceeding itself, and therefore civil in nature. And
like the law concerning other collateral attacks, no provision in
the statutes governing new criminal trials restricts the State’s
right to appeal. Accordingly, we conclude that the State has a
right to file a direct appeal from an order granting a new trial
in a criminal case based on newly discovered evidence after the
time for direct appeal has expired.
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Harris asserts that motions for new trial based on newly dis-
covered evidence under § 29-2101(5), even when filed after the
time to challenge the conviction and sentence on direct appeal
has passed, are more similar to other motions for new trial
than they are to proceedings under the DNA Testing Act. He
cites State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003),
in which we noted the similarities between motions for new
trial based on newly discovered evidence under § 29-2101(5)
and those based on newly discovered DNA evidence under
§ 29-2101(6). In Bronson, we held that these motions were
separate and distinct from the proceedings under Neb. Rev.
Stat. § 29-4123(2) (Reissue 2016) of the DNA Testing Act such
that an appeal arising from a motion to vacate and set aside
a judgment under § 29-4123(2) does not deprive a trial court
of jurisdiction to consider a motion for new trial filed under
§ 29-2101(6). However, we do not believe this holding makes
motions for new trial based on newly discovered evidence any
less collateral in nature.
Harris also disputes that motions for new trial based on
newly discovered evidence are civil in nature. He points out
that the Legislature has adopted separate statutes governing
motions for new trial in civil and criminal contexts and that
the new trial statutes in chapter 29 of the Nebraska Revised
Statutes are written in terms reflecting its criminal law appli-
cation. See, Neb. Rev. Stat. § 25-1144 et seq. (Reissue 2016);
§ 29-2101 et seq. But the same could be said about postcon-
viction proceedings and proceedings under the DNA Testing
Act, and in the case of postconviction proceedings, we have
stated that they are “not . . . ordinary civil action[s].” See State
v. Robertson, 294 Neb. 29, 41, 881 N.W.2d 864, 875 (2016).
Harris posits that this statement calls into question the ongoing
validity of our previous determinations that proceedings under
the DNA Testing Act are civil in nature. However, we disagree.
Our holding in Robertson that civil pleading rules did not apply
to postconviction proceedings did not make postconviction
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proceedings or proceedings under the DNA Testing Act any
less civil in nature.
Harris argues that even if his motion for new trial was a
civil proceeding, once it was granted, the matter reverted to
a criminal proceeding, from which the State could not file a
direct appeal. To illustrate, he points out that a defendant has
no right to counsel during a collateral attack, see State v. Pratt,
273 Neb. 817, 733 N.W.2d 868 (2007), but does have a right
to counsel in any new trial resulting therefrom. We agree that
under such circumstances, any new trial following a collateral
attack is criminal in nature, but the same is not true of the
order granting the new trial. Indeed, in appeals involving col-
lateral attacks, we have treated the resulting order as civil in
nature. See, e.g., id.
Harris also relies on State v. Taylor, 179 Neb. 42, 136
N.W.2d 179 (1965), for the proposition that there is no author-
ity for an appellate court to reinstate a guilty verdict upon a
State’s appeal from a new trial order and argues that therefore,
the rights attending criminal matters should reattach. But as we
explain in more detail in the next section, Harris misconstrues
Taylor, an exception proceedings case in which we spoke of
the necessity of rendering an advisory opinion, not the prac-
ticalities of reinstating a conviction such as would arise in
this case.
Finally, Harris argues that this is not actually a case of first
impression and that our precedent forecloses any possibility of
review of his motion for new trial. Again, he points to State v.
Taylor, supra, and the cases that followed it, State v. Martinez,
198 Neb. 347, 252 N.W.2d 630 (1977), and State v. Linn, 192
Neb. 798, 224 N.W.2d 539 (1974). In those cases, we did not
allow the State to appeal from an order granting new trial in
a criminal case. However, unlike the instant case, none of the
three cases upon which Harris relies involved a judgment,
because the appeals in those cases were filed in the original
criminal proceedings before the defendants were sentenced.
See State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015)
(final judgment in criminal case means sentence).
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In Taylor, the district court sustained the defendant’s motion
for new trial following an adverse verdict; but significantly,
Taylor does not reflect that the defendant was sentenced
before this ruling. The State sought review under § 29-2315.01
(Reissue 1964), and we dismissed the State’s appeal. In doing
so, we discussed the necessity of a final order and character-
ized the order in Taylor as interlocutory because further action
was required: “It is apparent that an order setting aside a
verdict and requiring a retrial does not dispose of the cause.”
179 Neb. at 46, 136 N.W.2d at 182. In Linn, we applied the
same rationale in dismissing the State’s exception proceed-
ings challenging a new trial order that followed a defendant’s
conviction, again with no mention of any sentence. And again,
in Martinez, the defendant had not been sentenced for the con-
viction for which he was granted a new trial, and under Taylor,
we dismissed the State’s cross-appeal in the matter for lack of a
final order. Because Taylor, Linn, and Martinez did not involve
a collateral attack on a final criminal judgment, they do not
govern the State’s right to appeal the order in this case.
In sum, the State has the right to appeal an order granting a
motion for new trial based on newly discovered evidence that
has been filed after the time for direct appeal has expired. Yet
our analysis of the validity of the State’s appeal of the new trial
order is not at an end. We must next consider whether the State
appeals from a final, appealable order.
(ii) Final, Appealable Order
[5,6] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order or final judgment entered
by the court from which the appeal is taken. State v. Paulsen,
304 Neb. 21, 932 N.W.2d 849 (2019). Among the three types
of final orders which may be reviewed on appeal is an order
affecting a substantial right made during a special proceeding.
See Neb. Rev. Stat. § 25-1902 (Reissue 2016). For the reasons
below, we conclude that the order granting Harris’ motion for
new trial based on newly discovered evidence was this type of
final order.
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[7] First, the order granting Harris’ motion for new trial
based on newly discovered evidence was made in a special pro-
ceeding. Special proceedings entail civil statutory remedies not
encompassed in chapter 25 of the Nebraska Revised Statutes
and have also been described as every special statutory remedy
which is not in itself an action. See State v. Pratt, 287 Neb.
455, 842 N.W.2d 800 (2014). An action involves prosecuting
the alleged rights between the parties and ends in a final judg-
ment, whereas a special proceeding does not. State v. Loyd, 269
Neb. 762, 696 N.W.2d 860 (2005). Where the law confers a
right, and authorizes a special application to a court to enforce
it, the proceeding is special, within the ordinary meaning of the
term “special proceeding.” Id. A special proceeding is not an
integral part of or a step in the action; it is not part of what is
sometimes referred to as the “main case.” See State v. Vela, 272
Neb. 287, 721 N.W.2d 631 (2006).
Under these principles, Harris’ motion for new trial initi-
ated a special proceeding. As we have explained in the sec-
tion above, Harris’ motion was civil in nature, not part of the
criminal proceeding itself. That is, having been filed long after
judgment, it was not part of the main case. And it bore other
hallmarks of a special proceeding. Section 29-2101(5) confers
a right to a new trial upon the discovery of new evidence that
fits certain criteria and also authorizes a special application to a
court to enforce the right. Harris’ motion requested a new trial
and alleged facts to support the claim that a new trial was war-
ranted. He did not seek a final judgment.
Harris argues that a motion for new trial does not fit the
description of a special proceeding, because it is in itself an
action. He refers to cases in which we have determined that
the district court may exercise jurisdiction over motions for
new trial based on § 29-2101(5) and (6) at the same time as
this court exercises jurisdiction over a direct appeal or an
appeal under the DNA Testing Act. See, State v. Bronson, 267
Neb. 103, 672 N.W.2d 244 (2003); Smith v. State, 167 Neb.
492, 93 N.W.2d 499 (1958). However, we do not understand
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how the separate and independent nature of these types of
proceedings could alter the character of a motion for new trial
based on newly discovered evidence.
[8-10] Second, the order that granted Harris’ motion for new
trial based on newly discovered evidence affected a substantial
right of the State. Whether an order affects a substantial right
for purposes of appeal depends on a number of factors. See
State v. Fredrickson, 305 Neb. 165, 939 N.W.2d 385 (2020).
The inquiry focuses on whether the right at issue is substantial
and whether the court’s order has a substantial impact on that
right. Id. Regarding the importance of the right affected, we
often state that a substantial right is an essential legal right,
not merely a technical right. See State v. Paulsen, 304 Neb. 21,
932 N.W.2d 849 (2019). Whether an order affects a substantial
right depends on whether it affects with finality the rights of
the parties in the subject matter. State v. Fredrickson, supra. It
also depends on whether the right could otherwise effectively
be vindicated. Id. An order affects a substantial right when the
right would be significantly undermined or irrevocably lost by
postponing appellate review. Id.
We conclude that because the State had already obtained
a criminal judgment, the order that granted Harris’ motion
for new trial based on newly discovered evidence affected
a substantial right of the State. Both this court and the U.S.
Supreme Court have recognized the State’s interest in the
finality of criminal judgments of conviction. See, e.g., Ramos
v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 206 L. Ed. 2d
583 (2020); United States v. Frady, 456 U.S. 152, 102 S. Ct.
1584, 71 L. Ed. 2d 816 (1982); State v. Louthan, 257 Neb.
174, 595 N.W.2d 917 (1999); State v. Lee, 251 Neb. 661, 558
N.W.2d 571 (1997). This finality interest is premised in part
on the significant expenditure of the State’s time and resources
required to secure a criminal conviction. “‘“Society’s resources
have been concentrated at [the time of trial] in order to decide,
within the limits of human fallibility, the question of guilt or
innocence of one of its citizens.”’” State v. Lotter, 278 Neb.
466, 481, 771 N.W.2d 551, 563 (2009), quoting Herrera v.
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Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203
(1993). It also rests on the fact that “with the passage of time
and the erosion of memory and the dispersion of witnesses,
there is no guarantee that the truth-seeking function of a new
trial would be any more exact than the first trial.” Id. at 481,
771 N.W.2d at 563. And courts have observed that without
finality, the criminal law is deprived of much of its deterrent
effect. See, e.g., McCleskey v. Zant, 499 U.S. 467, 111 S. Ct.
1454, 113 L. Ed. 2d 517 (1991) (superseded by statute on other
grounds as stated in Banister v. Davis, ___ U.S. ___, 140 S. Ct.
1698, 207 L. Ed. 2d 58 (2020)).
We further determine that the order granting Harris’ motion
for new trial had a substantial impact on the State’s right. An
order granting new trial following a conviction significantly
undermines the State’s interest in finality. The State cannot
recoup the costs occasioned by a new trial, and if the defendant
is ultimately acquitted, the State cannot lodge a direct appeal to
seek reinstatement of the conviction. See State v. Thalken, 299
Neb. 857, 911 N.W.2d 562 (2018) (generally, State has no right
to appeal adverse ruling in criminal case).
At oral argument, Harris asserted that criminal new trial
statutes do not expressly address the State’s substantial rights,
only the defendant’s. See § 29-2101(5). While this is true,
it does not negate the State’s substantial right as we have
described it. Furthermore, our finding that the State has a
substantial right in the finality of a criminal conviction, and
therefore the ability to appeal following the grant of a new
trial based on newly discovered evidence, does not impinge on
a defendant’s right to seek a new trial; it only allows for the
possibility of appellate review to ensure a grant of a new trial
is properly ordered.
Harris claims we have previously held that an order grant-
ing a motion for new trial in a criminal case is not a final,
appealable order. He relies on three cases mentioned above:
State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965); State
v. Linn, 192 Neb. 798, 224 N.W.2d 539 (1974); and State v.
Martinez, 198 Neb. 347, 252 N.W.2d 630 (1977). In each of
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those cases, we rejected the State’s appellate challenge of an
order granting a motion for new trial, stating in each case that
the order appealed from was not final and appealable. But as
we describe in more detail in the previous section, Taylor,
Linn, and Martinez are distinguishable from this case, partly
because, unlike Harris’ motion for new trial, the motions for
new trial in those cases were not collateral attacks on a final
criminal judgment.
Taylor and Linn are further distinguishable from this case
because they were decided under exception proceedings. In
part, Taylor based its decision, which Linn followed, on rea-
soning that were it to find the new trial order in error, the
district court could be bound by that decision. This would run
contrary to the legislative mandate that our holdings in excep-
tion proceedings are advisory when the defendant has already
been placed in jeopardy in the trial court. See Neb. Rev. Stat.
§ 29-2316 (Reissue 2016). This is not a concern in the instant
case, because we have concluded that the State may challenge
the new trial order in its direct appeal, a review process that
cannot result in an advisory opinion. See State v. Molina,
271 Neb. 488, 713 N.W.2d 412 (2006) (stating that in direct
appeal, it is not function of appellate court to render advi-
sory opinions).
Having determined that the new trial order is a final, appeal-
able order, we proceed to consider the remaining requirements
of appellate jurisdiction.
(iii) Timely Perfection of Direct Appeal
As we have explained, the State appeals from a final,
appealable order, but there is one more hurdle to clear before
we can reach the merits of the State’s challenge to the new
trial order. We next must assess whether the State’s direct
appeal from the new trial order was timely perfected. We con-
clude that it was.
As an initial matter, we take up Harris’ position that the
State did not fulfill two of the basic requirements to perfect
an appeal in case No. S-19-133: a notice of appeal and a
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docket fee. First, Harris points out that the notice of appeal
identifies the orders appealed from as having been filed on
September 21, 2017, and February 4, “2018.” The new trial
order was in fact entered on September 21, 2017, but the
discharge order was entered on February 4, 2019. However,
this error is not fatal to the State’s appeal. Section 25-1912,
which governs the filing of an appeal, does not require that the
order appealed from be correctly identified to confer appel-
late jurisdiction. See Dominguez v. Eppley Transp. Servs., 277
Neb. 531, 763 N.W.2d 696 (2009). Second, Harris claims that
the record does not contain any indication that the docket fee
for case No. S-19-133 has been paid as required to perfect an
appeal. See, § 25-1912(1); Neb. Ct. R. App. P. § 2-101(A) (rev.
2015). But upon an examination of our records, we are satis-
fied that the docket fee has been timely deposited.
With an adequate notice of appeal having been filed and
the docket fee deposited, we need only examine whether the
State’s notice of appeal was timely filed. See id. Generally,
appeals must be filed within 30 days after the entry of the
judgment, decree, or final order. § 25-1912(1). However, that
period may be terminated by filing a motion to alter or amend
within 10 days of the judgment. §§ 25-1329 and 25-1912(3).
See, also, State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).
A new period of 30 days for filing a notice of appeal com-
mences when the terminating motion is ordered dismissed. Id.
Here, the State filed a valid terminating motion in the form of
a “Motion for Reconsideration.”
Typically, a motion for reconsideration does not terminate
the time for appeal and is considered nothing more than an
invitation to the court to consider exercising its inherent power
to vacate or modify its own judgment. See State v. Lotter, 301
Neb. 125, 917 N.W.2d 850 (2018), citing Kinsey v. Colfer,
Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000). For this reason,
we have held that once a notice of appeal is filed, any pending
motions to reconsider that have not been ruled upon become
moot. See Kinsey v. Colfer, Lyons, supra. Harris asserts that
is what happened to the State’s motion for reconsideration
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when the State filed its initial unsuccessful appeal, which we
dismissed for lack of jurisdiction. But Harris is mistaken, as
we will explain.
In some contexts, a motion for reconsideration may also be
treated as a motion to alter or amend a judgment for purposes
of terminating the appeal period. State v. Lotter, supra. To be
treated as a motion to alter or amend a judgment, a motion for
reconsideration must be filed no later than 10 days after the
entry of judgment and seek substantive alteration of the judg-
ment. See id. See, also, State v. Gibilisco, 279 Neb. 308, 778
N.W.2d 106 (2010).
The State’s motion for reconsideration meets the criteria to
be treated as a terminating motion. It was filed on September
29, 2017, less than 10 days after the new trial order was entered
on September 21. The motion for reconsideration sought sub-
stantive alteration of the new trial order by asking that the court
alter, amend, or vacate it because it was “based on precepts and
legal standards reserved for Motions for Post-Conviction Relief
and not on the requisite standards and precepts required to be
considered, analyzed and addressed in an order granting or
denying a Motion for New Trial.”
The State’s motion for reconsideration remained pending,
even when the State filed its first appeal to this court, which
we dismissed for lack of jurisdiction. Under § 25-1912(3), a
notice of appeal filed before a pending terminating motion has
been dismissed shall have no effect. But the terminating motion
continues to operate until it is dismissed, even if the proponent
attempts to appeal in the meantime. See § 25-1912(3).
With the motion for reconsideration operating as a terminat-
ing motion pursuant to § 25-1912, the State’s 30-day appeal
period commenced when the district court dismissed the motion
for reconsideration as moot on February 4, 2019. The State
filed its notice of appeal in case No. S-19-133 on February 8.
Therefore, the State’s direct appeal was timely.
Harris challenges the validity of the State’s motion for
reconsideration as a terminating motion on two bases. First,
he argues that such a terminating motion is reserved for civil
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cases and thus could not serve as a terminating motion in this
matter. Second, Harris claims that by not obtaining an earlier
ruling, the State waived or abandoned the motion or filed it in
bad faith. We reject both of these arguments.
In support of his first point, Harris mainly asserts that
because the statutes relating to terminating motions are
located in the chapter addressing civil procedure, they cannot
apply to the new trial order arising from a motion filed under
§ 29-2101(5), which is located in the chapter addressing crimi-
nal procedure. Like Harris’ previous arguments that the motion
for new trial based on newly discovered evidence is not civil
in nature, this argument also fails, and for the same reasons.
As we have explained, such motions are civil in nature, simi-
lar to habeas corpus proceedings, postconviction proceedings,
and proceedings under the DNA Testing Act. And we have
previously allowed motions to alter or amend under § 25-1329
in postconviction proceedings, including when filed by the
State. See, State v. Gibilisco, 279 Neb. 308, 778 N.W.2d 106
(2010) (State’s motion for reconsideration treated as motion
to alter or amend); State v. Sims, 277 Neb. 192, 761 N.W.2d
527 (2009) (defendant filed motion to alter or amend); State
v. Bao, 269 Neb. 127, 690 N.W.2d 618 (2005) (defendant’s
motion to alter or amend treated as terminating motion). While
our postconviction statutes do specifically provide that appeals
may be taken from the district court as provided for appeals
in civil cases, see § 29-3002, that provision did not dissuade
us from allowing a civil appeal path in cases involving pro-
ceedings under the DNA Testing Act, even though that statu-
tory scheme contains no comparable provision and is located
in chapter 29 of the Nebraska Revised Statutes. See, State v.
Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014); Neb. Rev. Stat.
§ 29-4116 et seq. (Reissue 2016). Today, we reach the same
conclusion regarding an order granting a motion for new trial
based on newly discovered evidence that has been filed after
the time for direct appeal has expired. It logically follows
that the appeal process in this case would allow for terminat-
ing motions.
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We discern no provision of law that would preclude the
State from filing a motion for reconsideration that operates as
a terminating motion in this case. Indeed, we have recognized
that “[j]udicial efficiency is served when any court . . . is given
the opportunity to reconsider its own rulings, either to supple-
ment its reasoning or correct its own mistakes.” See State v.
Hausmann, 277 Neb. 819, 827, 765 N.W.2d 219, 225 (2009),
overruled on other grounds, McEwen v. Nebraska State Coll.
Sys., 303 Neb. 552, 931 N.W.2d 120 (2019) (statute governing
motions to alter or amend judgment applies to judgment of dis-
trict court acting as intermediate appellate court).
We are also unpersuaded by the arguments Harris makes
in support of his position that the motion to reconsider was
waived, was abandoned, or was pursued in bad faith. Harris
argues that the State waived the right to rely on the motion
for reconsideration as a terminating motion by not setting the
matter for hearing and securing a ruling before its initial unsuc-
cessful attempt to appeal. For support, Harris relies on State
v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006). In Aldaco,
the defendant filed a pro se notice of appeal after his motion
for speedy trial discharge was orally overruled and the mat-
ter proceeded to trial. The appeal was dismissed for lack of
jurisdiction because no file-stamped order had been entered
by the trial court. The defendant did not seek further review.
The trial court subsequently entered a written order, which the
defendant appealed within 30 days. We concluded that regard-
less of whether the first appeal should have been dismissed,
the 30-day period to appeal began to run after the trial court
orally overruled the motion and proceeded to trial, and that
the second notice of appeal was filed out of time. We do not
understand how the holding in Aldaco warrants a waiver of the
motion for reconsideration in this case. Aldaco did not deal
with a terminating motion, and our jurisprudence concerning
terminating motions does not address waiver.
Harris also asserts that the motion for reconsideration should
have no effect because the State abandoned it by failing to
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pursue it once it was filed. Harris relies on the proposition that
a motion which is never called to the attention of the court is
presumed to have been waived or abandoned by the moving
party and that where no ruling appears to have been made on a
motion, the presumption is, unless it otherwise appears, that the
motion was waived or abandoned. See, ACI Worldwide Corp.
v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 156
(2017); Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply,
Inc., 235 Neb. 207, 454 N.W.2d 671 (1990).
Harris seems to characterize observations made by Judge
Nelson that the State failed to obtain a hearing date in compli-
ance with local rules as a finding that the State abandoned the
motion for reconsideration. We do not read the discharge order
that way, and we do not believe the State abandoned its motion
for reconsideration. Failure to set a hearing date in accordance
with a local rule does not invalidate a terminating motion; the
statutes governing terminating motions do not require it. See
Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
Further, the State did bring the motion for reconsideration to
the district court’s attention. The district court held a hearing
on the motion before ultimately dismissing it as moot. This is
not a case where the motion was never brought to the attention
of the court.
Similarly, we are not convinced by Harris’ argument that
the State’s motion for reconsideration should not operate as
a terminating motion due to the State’s “dubious actions” or
bad faith. See brief for appellee on cross-appeal at 83. Harris
cites State v. Bao, 269 Neb. 127, 690 N.W.2d 618 (2005),
where we treated the defendant’s motion for reconsideration
as a terminating motion, even though the defendant had with-
drawn it. Citing to a similar federal case, we concluded that a
new 30-day appeal period began after the withdrawal because
there was no indication that the terminating motion was filed
and withdrawn in bad faith. In the present case, the State never
withdrew its terminating motion, and we do not discern bad
faith on the part of the State.
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In short, none of the arguments raised by Harris on this sub-
ject have merit. The State’s direct appeal in case No. S-19-133
was timely perfected and has met the other requirements for
our appellate jurisdiction to review the new trial order.
(iv) Merits: New Trial Order’s Noncompliance
With This Court’s Mandate
As we have established, we have appellate jurisdiction to
review the new trial order. Even so, Harris makes one last
argument that we should not consider the State’s arguments
regarding it. According to Harris, comments by the State’s
counsel at the hearing on the State’s motion for reconsidera-
tion and Harris’ motion to discharge waived as invited error
any opposition to the district court’s ruling that the motion for
reconsideration was denied as moot.
At the hearing, counsel for the State, during a discussion
about which order should be addressed first, remarked, “If the
Court — I guess — technically thought that there was merit to
the motion for discharge, then I guess my motion to reconsider
probably is moot. Uh, but that was just kind of my thought. I
don’t know if — [.]” It is true that a party cannot complain of
error which he or she has invited the court to commit. State v.
Dixon, 286 Neb. 157, 835 N.W.2d 643 (2013). But we do not
consider a party’s equivocal suggestion of the possibility of an
adverse ruling, during a discussion about the order in which
matters would be addressed at the hearing, to be the equivalent
of inviting error.
Turning now to the State’s arguments regarding the new trial
order, the State contends that the new trial order was erroneous
because the district court did not receive any evidence to sup-
port it, because the court applied the wrong standard in grant-
ing it, and because the motion for new trial is meritless. The
State’s arguments may be correct, but we need not and, in fact,
cannot decide them because of a more fundamental problem
with the district court’s new trial order identified by the State:
In granting Harris’ motion for new trial, the district court did
not comply with our mandate in Harris V.
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[11-13] In appellate procedure, a “remand” is an appellate
court’s order returning a proceeding to the court from which
the appeal originated for further action in accordance with the
remanding order. TransCanada Keystone Pipeline v. Tanderup,
305 Neb. 493, 941 N.W.2d 145 (2020). After receiving a man-
date, a trial court is without power to affect rights and duties
outside the scope of the remand from an appellate court. Id.
When a lower court is given specific instructions on remand,
it must comply with the specific instructions and has no dis-
cretion to deviate from the mandate. See id. To carry out its
unqualified duty to follow the mandate issued by an appellate
court, a lower court may not modify a judgment directed by
an appellate court; nor may it engraft any provision on it or
take any provision from it. State v. Payne, 298 Neb. 373, 904
N.W.2d 275 (2017).
Guided by these principles, we turn now to the question of
whether the district court’s new trial order was in accordance
with the specific mandate of Harris V. Where the mandate
incorporates the appellate court’s opinion by reference, we
examine the opinion in conjunction with the mandate to deter-
mine how the lower court should have proceeded. See State
v. Payne, supra. In Harris V, our mandate ordered the district
court to “proceed to enter judgment in conformity with the
judgment and opinion of this court.” Our opinion in Harris V
instructed the district court, upon remand, to clarify whether it
had addressed Harris’ second postconviction motion or third
amended postconviction motion and to apply the correct stan-
dard to Harris’ claims concerning the suppression of Allgood’s
statements, an issue raised in both motions. Finally, we directed
the district court to rule, if necessary, on Harris’ claims raised
in the third amended motion for postconviction relief regarding
Hicks’ plea agreement.
On remand, the district court clarified that its previous
order pertained to the second postconviction motion, but its
compliance with our mandate stopped there. After identifying
the second postconviction motion as the subject of its previ-
ous order, the district court did not address the suppression of
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Allgood’s statements in the context of that motion, as clearly
directed by Harris V. Instead, it took up that analysis in the
context of Harris’ later-filed motion for new trial. Because
it disposed of the matter based on the motion for new trial,
the district court dismissed the third amended postconviction
motion without prejudice. This was not in compliance with
our mandate.
Harris argues that the new trial order was not beyond the
scope of our mandate in Harris V. He bases this argument
on the premise that the motion for new trial was completely
separate and independent from any postconviction proceed-
ings. Harris primarily relies on Smith v. State, 167 Neb. 492, 93
N.W.2d 499 (1958), where we held that the trial court should
consider a motion for new trial based on newly discovered
evidence at the same time as direct appellate review of the
criminal conviction. We determined that the two proceed-
ings “should be conducted separately and independently of
each other” and that neither the Legislature nor our case law
regarded this situation as an invasion of the appellate court’s
jurisdiction. Id. at 494, 93 N.W.2d at 500. See, also, State v.
Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003) (based on
Smith, lower court had jurisdiction to consider motion for new
trial based on newly discovered exculpatory DNA testing evi-
dence under § 29-2101(6) (Cum. Supp. 2002) during pendency
of appeal of denial of motion to vacate and set aside judgment
under DNA Testing Act). Harris asserts not only that the dis-
trict court was permitted by Smith to consider his motion for
new trial separately from the postconviction issues on remand,
but that our holding in Harris IV required the court to con-
sider the motion for new trial first. In Harris IV we held that
a court presented with a postconviction motion simultaneously
with a motion seeking relief under another remedy must first
determine whether the defendant is entitled to relief under the
nonpostconviction remedy.
However, unlike the present case, neither Smith and its prog-
eny nor Harris IV involved the lower court’s implementation
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of an appellate court’s mandate on remand. In Smith, we
observed that the trial court was not required to delay the
exercise of its original jurisdiction to consider the motion for
new trial because “no such restriction of power is declared”
by the Legislature or by our jurisprudence. 167 Neb. at 494-
95, 93 N.W.2d at 501. But our mandate in the instant case
introduced restrictions that barred the district court from con-
sidering Harris’ motion for new trial before it carried out
our mandate.
Our mandate jurisprudence is clear: A trial court is with-
out power to affect rights and duties outside the scope of
the remand from an appellate court. See State v. Payne, 298
Neb. 373, 904 N.W.2d 275 (2017). And, as noted above,
we have consistently held that when a lower court is given
specific instructions on remand, it must comply with the spe-
cific instructions and has no discretion to deviate from the
mandate. TransCanada Keystone Pipeline v. Tanderup, 305
Neb. 493, 941 N.W.2d 145 (2020). Allowing expansion of the
issues on remand in this manner would not serve the public
interest in finality of the litigation process. See Jurgensen v.
Ainscow, 160 Neb. 208, 69 N.W.2d 856 (1955). We applied
these principles in State v. Henk, 299 Neb. 586, 909 N.W.2d
634 (2018), where our mandate required the district court to
conduct an evidentiary hearing on a single postconviction
claim. On remand, the district court gave the defendant leave
to amend his motion for postconviction relief to add an addi-
tional claim, conducted an evidentiary hearing on both claims,
and denied postconviction relief. On appeal, we held that a
defendant cannot be allowed to assert new claims on remand
when he or she is entitled to an evidentiary hearing on other
claims and that the district court acted outside the scope of our
mandate. See, also, State v. Shelly, 279 Neb. 728, 782 N.W.2d
12 (2010). For the same reasons, the district court in this case
was required to follow the directives of our Harris V mandate
first, before entertaining any subsequent motions. This it did
not do.
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As we have explained, Harris V required the district court
to clarify whether its previous order had addressed the second
motion or third amended motion for postconviction relief; to
consider Allgood’s statements in the context of the postconvic-
tion motion from which Harris had appealed; and, if necessary,
to rule on Harris’ claims raised in the third amended motion
for postconviction relief regarding Hicks’ plea agreement. The
district court clarified that its previous order addressed Harris’
second motion, but failed thereafter to comply with our man-
date. It did not consider Allgood’s statements in the context of
a postconviction motion as we directed, and it did not rule on
Harris’ claims raised in the third amended motion for postcon-
viction relief regarding Hicks’ plea agreement.
[14,15] Because everything in the district court’s September
21, 2017, order, aside from the court’s clarification that its pre-
vious order addressed Harris’ second postconviction motion,
did not comply with our mandate in Harris V, we have no
choice but to vacate it. The district court’s subject matter juris-
diction immediately upon remand was limited to carrying out
our mandate. See State v. Payne, supra. And “[n]o judgment or
order different from, or in addition to, the appellate mandate
can have any effect.” Id. at 379, 904 N.W.2d at 280. Because a
trial court is without power to affect rights and duties outside
the scope of the remand from an appellate court, any order
attempting to do so is entered without jurisdiction and is void.
Id. In breaching our mandate, the district court acted outside
its jurisdiction and entered a void order, which we have the
power to vacate. See In re Interest of Trey H., 281 Neb. 760,
798 N.W.2d 607 (2011).
Based on the reasons above, we vacate the September 21,
2017, order, with the exception of the finding that the order
appealed from in Harris V addressed the second motion for
postconviction relief, and remand the cause for ­compliance
with this court’s mandate in Harris V. To comply with our
mandate in Harris V and this opinion, the district court shall
consider Harris’ postconviction claim based on Allgood’s
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statements and the claim in his third amended motion regard-
ing Hicks’ plea agreement. With the aforementioned exception,
the vacated portion of the order encompasses every factual and
legal finding made by the district court, including those per-
taining to the motion for new trial; and because none of these
vacated findings were within the district court’s subject matter
jurisdiction to decide, they shall not operate as the law of the
case on remand.
(b) Discharge Order
(i) State’s Right to Direct Appeal
We now turn to the order granting Harris’ motion for dis-
charge on speedy trial grounds. As with the new trial order, we
must first determine whether the State has the right to chal-
lenge it with a direct appeal. We conclude that it does.
As with the new trial order, Harris relies on the principle
that absent specific statutory authorization, the State generally
has no right to appeal an adverse ruling in a criminal case.
Harris claims this precludes the State’s direct appeal of the
discharge order. But whatever merit Harris’ argument might
have if the State were appealing an ordinary order granting a
defendant’s motion for absolute discharge, it must be recalled
that the order that purported to grant the new trial in this case
was void. Because a void order has no legal effect, this did
not effectively become a criminal case, and thus the principle
Harris invokes is inapplicable.
As we have explained, the district court was permitted to
act within a limited scope on remand from Harris V. The only
matter properly before the court at that time was the resolu-
tion of Harris’ postconviction claims. That is, the district court
was conducting postconviction proceedings. Because the new
trial order was void and had no effect, it could not effectively
change the nature of the postconviction proceedings. We have
allowed the State to file a direct appeal from postconviction
proceedings. State v. Thieszen, 295 Neb. 293, 887 N.W.2d
871 (2016). Therefore, we conclude that the discharge order is
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reviewable on direct appeal by the State, provided it is a final,
appealable order and is timely appealed.
(ii) Timely Appeal of Final,
Appealable Order
As we have already said, for an appellate court to acquire
jurisdiction of an appeal, there must be a final order or final
judgment entered by the court from which the appeal is taken.
State v. Paulsen, 304 Neb. 21, 932 N.W.2d 849 (2019). We
conclude that like the new trial order, the order granting dis-
charge is a type of final order: an order affecting a substantial
right made during a special proceeding. See § 25-1902.
The district court purported to grant discharge in what was,
in reality, still a postconviction proceeding. And we have long
held that postconviction proceedings are special proceedings.
See, State v. Thieszen, supra; State v. Silvers, 255 Neb. 702,
587 N.W.2d 325 (1998).
Furthermore, we conclude that an order granting discharge
on speedy trial grounds affects a substantial right of the State.
When the State has invested the time and resources to charge
an individual with a crime, it has an interest in the accused’s
proceeding to trial and not being discharged improperly. See
State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991)
(recognizing public interest in obtaining convictions of per-
sons who have committed criminal offenses against State).
Absent an appeal from the order granting discharge, this right
of the State could not otherwise be vindicated, see State v.
Fredrickson, 305 Neb. 165, 939 N.W.2d 385 (2020), because
the State cannot bring the same charges again. See Neb. Rev.
Stat. § 29-1208 (Reissue 2016) (providing for “absolute dis-
charge from the offense charged”). Accordingly, the order
granting discharge was a final order under § 25-1902 because it
was made during a special proceeding and affected a substan-
tial right of the State.
We further determine that the State timely appealed the dis-
charge order. The discharge order was entered on February 4,
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2019. The State filed its notice of appeal on February 8, well
within the 30-day period prescribed by § 25-1912(1), and as
we have already noted, the required docket fee was timely
deposited. Thus, as to the discharge order, the State timely per-
fected its direct appeal.
We note that we are not persuaded by Harris’ argument that
the discharge order is not final based on the order that granted
the State’s request for a stay. He asserts that “to the extent
that the February 4, 2019[,] order has stayed the implementa-
tion of Harris’ discharge past the date of filing the appeal or is
conditioned upon the filing of an appeal, the February 4th order
remains stayed and is not a final, appealable order.” Brief for
appellee at 6. However, when the district court purported to
discharge Harris, no further action was required to completely
dispose of the cause; the order was final. Compare State v.
Warner, 290 Neb. 954, 863 N.W.2d 196 (2015) (order sus-
taining defendant’s motion to quash gave State 7 days to file
amended information; State appealed, and we determined that
order was not final because order did not discharge defendant).
This argument lacks merit.
(iii) Disposition of Discharge Order
Having determined that we have jurisdiction to review the
discharge order, we now consider it. Generally, a trial court’s
determination as to whether charges should be dismissed on
speedy trial grounds is a factual question which will be affirmed
on appeal unless clearly erroneous. State v. Lovvorn, 303 Neb.
844, 932 N.W.2d 64 (2019). But in this case, as we will explain,
there is a legal issue we must address first.
When the order granting Harris’ absolute discharge is con-
sidered in light of everything we have already said, it quickly
becomes clear that we must vacate it. Under § 29-1207, a
defendant may be discharged if he or she is not brought to trial
for a charged offense within a certain time period following,
among other things, an order for a new trial. Here, however,
we have already concluded that the order granting the new
trial was void. Harris cannot claim a right to discharge for not
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being speedily tried when the order that purported to grant him
a new trial was a nullity.
If that were not enough, the order of discharge itself
was also outside the scope of our mandate in Harris V. As
explained above, after receiving a mandate, a trial court is
without power to affect rights and duties outside the scope of
the remand from an appellate court. TransCanada Keystone
Pipeline v. Tanderup, 305 Neb. 493, 941 N.W.2d 145 (2020).
Even when Harris moved for absolute discharge, the district
court was still subject to the strictures of our mandate in
Harris V. It clearly acted outside of that mandate when, rather
than following our instructions regarding Harris’ claims for
postconviction relief, it purported to grant absolute discharge
based on a new trial order that was issued outside the scope
of our mandate. So, like the bulk of the new trial order, the
discharge order was void. See TransCanada Keystone Pipeline
v. Tanderup, supra.
The foregoing illustrates the error made by the district
court when it concluded the State’s challenge to the order
granting Harris a new trial was moot in light of its ruling on
Harris’ motion for absolute discharge. Harris’ right to discharge
depended on the validity of the order granting him a new
trial. At the time of Harris’ motion for discharge, the issue of
whether the new trial order was valid continued to exist and
required resolution. See State v. Dunster, 278 Neb. 268, 769
N.W.2d 401 (2009) (case becomes moot when issues initially
presented cease to exist or when litigants seek to determine
question which does not rest upon existing facts or rights).
For these reasons, we vacate the order that granted Harris
absolute discharge and remand the cause with instructions to
reinstate his convictions and sentences.
2. Case No. S-19-130:
Exception Proceedings
Having resolved all the relevant issues presented by the par-
ties in the appeal docketed as case No. S-19-133, we dismiss
case No. S-19-130 as moot. See State v. Dunster, supra.
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V. CONCLUSION
Litigation regarding Harris’ convictions and sentences has
lasted many years. And, for a number of reasons, it has
become complex. Under these circumstances, one might won-
der whether our decision today—which vacates multiple orders
entered over the course of several years and largely returns this
case to where it stood when we remanded it to the district court
in 2017—contributes to advancing the matter to a resolution
of some kind. While perhaps an understandable question, it is
not a legally relevant one. As we have explained, the district
court entered void orders under our law and we are obligated
to vacate them. See DeLima v. Tsevi, 301 Neb. 933, 946, 921
N.W.2d 89, 98 (2018) (“[s]o while it is certainly regrettable
that the significant time and energy devoted to litigating [an
issue] was all for naught, upon its correct determination that it
never had subject matter jurisdiction, the district court had no
choice but to vacate its prior custody orders”).
Accordingly, in case No. S-19-133, we vacate the district
court’s order granting Harris a new trial and remand the
cause for further proceedings in compliance with this deci-
sion and our mandate in Harris V. We also vacate the order
granting absolute discharge and remand the cause with direc-
tions to reinstate Harris’ convictions and sentences. In case
No. S-19-130, we dismiss the State’s exception proceedings as
moot. In light of these dispositions, we need not address the
parties’ remaining arguments.
Appeal in No. S-19-130 dismissed.
Judgment in No. S-19-133 vacated, and
cause remanded with directions.
Heavican, C.J., and Freudenberg, J., not participating.