State v. Hood ( 2015 )


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  •                                      - 208 -
    Decisions of the Nebraska Court of A ppeals
    23 Nebraska A ppellate R eports
    STATE v. HOOD
    Cite as 
    23 Neb. Ct. App. 208
    State of Nebraska, appellant, v.
    Edward E. Hood, appellee.
    ___ N.W.2d ___
    Filed August 25, 2015.    No. A-15-199.
    1.	 Criminal Law: Judgments: Appeal and Error. In the absence of a
    specific statutory authorization, the State, as a general rule, has no right
    to appeal an adverse ruling in a criminal case.
    2.	 Motions to Suppress: Appeal and Error. Neb. Rev. Stat. § 29-824
    (Reissue 2008) provides the State with the specific right of appealing a
    district court’s ruling granting a motion to suppress.
    3.	 ____: ____. Neb. Rev. Stat. § 29-825 (Reissue 2008) outlines the proc­
    ess for filing with the appellate court an application of review of an
    order granting a motion to suppress.
    4.	 Motions to Suppress: Time: Appeal and Error. Neb. Rev. Stat.
    § 29-826 (Reissue 2008) gives the district court the authority to establish
    time limits for the State to file a notice of intent with the clerk of the
    district court seeking review of an order granting a motion to suppress
    and to file the application with the appellate court.
    5.	 Jurisdiction: Time: Appeal and Error. Timeliness of an appeal is a
    jurisdictional necessity.
    6.	 Legislature: Courts: Time: Appeal and Error. When the Legislature
    fixes the time for taking an appeal, the courts have no power to extend
    the time directly or indirectly.
    Appeal from the District Court for Garden County: Derek C.
    Weimer, Judge. Appeal dismissed.
    Greg M. Ariza, Special Deputy Garden County Attorney, for
    appellant.
    No appearance for appellee.
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    Decisions of the Nebraska Court of A ppeals
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    STATE v. HOOD
    Cite as 
    23 Neb. Ct. App. 208
    Inbody, Pirtle, and Bishop, Judges.
    Pirtle, Judge.
    INTRODUCTION
    The State of Nebraska brings this appeal from an order of
    the Garden County District Court granting Edward E. Hood’s
    motion to suppress evidence. Because we conclude that the
    State failed to comply with the statutory requirements for
    docketing an appeal in this court, the case is dismissed for
    lack of jurisdiction.
    BACKGROUND
    The State has filed an application for review of a district
    court order granting Hood’s motion to suppress. The sup-
    pression order was entered on February 27, 2015. The State
    timely filed a notice of intent to appeal on March 4, pursuant
    to Neb. Rev. Stat. § 29-826 (Reissue 2008). At that point, the
    State had 30 days, or until April 3, in which to file its applica-
    tion for review with the consent of the Attorney General. See
    Neb. Rev. Stat. § 29-825 (Reissue 2008). It did so on April 1.
    However, § 29-825 requires that the application be accompa-
    nied by a copy of the suppression order and “a bill of excep-
    tions containing all of the evidence.”
    It also appears that while the State had filed a praecipe for
    a bill of exceptions and its application for review stated it
    was attaching the bill of exceptions, it did not file the actual
    bill of exceptions with the clerk of the Court of Appeals until
    April 7, 2015.
    On May 11, 2015, a show cause order was issued giving
    the State 15 days to file a response, to include a supporting
    affidavit or affidavits, if necessary, specifically addressing
    why the bill of exceptions was not timely filed in this matter,
    or otherwise show cause why this appeal should not be dis-
    missed for lack of jurisdiction pursuant to Neb. Ct. R. App. P.
    § 2-107(A)(2) (rev. 2012).
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    STATE v. HOOD
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    23 Neb. Ct. App. 208
    On May 18, 2015, the State filed its response to the show
    cause order and attached the affidavit of the court reporter,
    wherein she stated as follows:
    On March 4, 2015, I received the State’s Praecipe for
    Bill of Exceptions to include transcripts and exhibits
    for hearings held October 6, 2014 and February 17,
    2015 to be filed with the Clerk of the Supreme Court
    of Nebraska.
    . . . I filed the bill of exceptions with the Garden
    County District Court on April 6, 2015; and filed the bill
    of exceptions with the Court of Appeals on April 7, 2015,
    by electronic mail.
    . . . My understanding was the bill of exceptions was
    to be completed within seven (7) weeks after the filing of
    a notice of appeal, April 22, 2015, pursuant to Neb. R. of
    Appellate Practice § 2-105.
    In fact, our record confirms that the court reporter’s e-mail
    with the bill of exceptions was sent on April 7, 2015, at 5:11
    p.m. Thus, the question before us is whether the State’s fail-
    ure to file the bill of exceptions in this matter on or before
    April 3, in compliance with Neb. Rev. Stat. § 29-824 et seq.
    (Reissue 2008), requires us to dismiss the appeal for lack
    of jurisdiction.
    ANALYSIS
    [1-4] In the absence of a specific statutory authorization,
    the State, as a general rule, has no right to appeal an adverse
    ruling in a criminal case. State v. Wieczorek, 
    252 Neb. 705
    ,
    
    565 N.W.2d 481
    (1997); State v. Ritz, 
    17 Neb. Ct. App. 589
    , 
    767 N.W.2d 809
    (2009). Section 29-824 provides the State with
    the specific right of appealing a district court’s ruling grant-
    ing a motion to suppress. Section 29-825 outlines the process
    for filing with the appellate court an application of review of
    an order granting a motion to suppress. Section 29-826 gives
    the district court the authority to establish time limits for the
    State to file a notice of intent with the clerk of the district
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    STATE v. HOOD
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    court seeking review of an order granting a motion to sup-
    press and to file the application with the appellate court.
    In the present case, the suppression order was entered on
    February 27, 2015. The State timely filed a notice of intent
    to appeal on March 4, pursuant to § 29-826. At that point, the
    State had 30 days, or until April 3, in which to file its applica-
    tion for review with the consent of the Attorney General. See
    § 29-825. It did so on April 1. However, the application must
    be accompanied by a copy of the suppression order and “a
    bill of exceptions containing all of the evidence,” pursuant to
    §§ 29-824 and 29-825. While the State timely filed a praecipe
    for a bill of exceptions and its application for review stated
    that it was attaching the bill of exceptions, it had not filed the
    actual bill of exceptions on or before April 3.
    It appears that the State attempted to comply with this
    requirement by requesting a bill of exceptions with the clerk
    of the district court. Without specifically addressing the ques-
    tion of whether a request for a bill of exceptions is appropriate
    for compliance with the statutory mandates of § 29-825, we
    note that in the present case, the State failed to file the pre-
    pared bill of exceptions with this court by April 3, 2015. The
    only reason given for this, apparently, is the court reporter’s
    statement in her affidavit that she believed she had 7 weeks
    instead of 30 days to complete and file the bill of exceptions
    with the clerk of the appellate court. The statute specifically
    requires the appealing party, not the court reporter, to timely
    file the relevant documents with the clerk of the appellate
    court. See § 29-825. Therefore, a misunderstanding by the
    court reporter in these circumstances does not excuse the
    appealing party’s responsibility for timely compliance with
    the requirements of the statute.
    The dissent asserts that “[e]ven had the State gone to the
    court reporter on the 30th day to obtain the bill of exceptions
    in order to file it, the bill of exceptions would not have been
    ready.” On the other hand, had the State checked on the status
    of the bill of exceptions with the court reporter on the 21st,
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    25th, or even the 28th day, the court reporter’s misunderstand-
    ing of the applicable law most likely would have been discov-
    ered and the 30-day deadline still capable of being met.
    [5,6] Timeliness of an appeal is a jurisdictional neces-
    sity. State v. Wieczorek, supra; State v. 
    Ritz, supra
    . When the
    Legislature fixes the time for taking an appeal, the courts have
    no power to extend the time directly or indirectly. 
    Id. CONCLUSION Because
    the State failed to timely file a bill of exceptions
    containing all of the evidence with this court by April 3, 2015,
    the appeal must be dismissed for lack of jurisdiction. See
    §§ 29-825 and 29-826.
    A ppeal dismissed.
    Inbody, Judge, dissenting.
    I respectfully disagree with the majority’s determination
    that the failure of the State to timely file the bill of excep-
    tions as required by § 29-825 defeats jurisdiction in this
    court. Assuming, without deciding, that the filing of the bill
    of exceptions within 30 days of February 27, 2015, is a
    jurisdictional requirement, the specific facts surrounding the
    untimeliness of the filing of the bill of exceptions in this case
    were caused solely by the court reporter whose responsibility
    it was to timely prepare the bill of exceptions. Therefore, the
    failure of the State to timely file the bill of exceptions should
    not defeat the jurisdiction of this court. Case law supports
    this position.
    In Larson v. Wegner, 
    120 Neb. 449
    , 
    233 N.W. 253
    (1930),
    the Nebraska Supreme Court considered when the filing of
    a transcript on appeal from the district court to the Supreme
    Court was a jurisdictional requirement. The court noted that
    the general rule is that for the Supreme Court to acquire
    jurisdiction of an appeal, the transcript must be filed with the
    court within 3 months from the rendition of the final order.
    However, an appellant will not be deprived of an appeal where
    the appellant is free from neglect and was prevented from
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    having his appeal docketed by the appellate court within the
    statutory period through the neglect or failure of the proper
    officer to prepare the transcript. “[W]here the appellant has
    done all things necessary, he cannot be deprived of his appeal
    by the negligence or fault of the officers of the court whose
    duty it is to prepare the transcript.” 
    Id. at 451,
    233 N.W. at
    254. There is a caveat to the exception: If the appellant relies
    upon the court official to file the necessary transcript and
    perfect an appeal, where the filing is not the duty of the court
    official, the appellant makes the court official his agent for
    that purpose, and the negligence in filing or failing to file is
    that of the appellant. See Larson v. 
    Wegner, supra
    . See, also,
    Marcotte v. City of Omaha, 
    196 Neb. 217
    , 220, 
    241 N.W.2d 838
    , 840 (1976) (“while the requirement . . . that ‘a transcript
    of the proceedings containing the final judgment or order’ be
    filed with the petition in error is jurisdictional, the inability of
    a petitioner in error, who has timely filed his petition to obtain
    and file the transcript, occasioned solely by the failure of the
    public official charged with responsibility for furnishing the
    transcript to perform his public duty, does not defeat the juris-
    diction of the appellate court”).
    Cases where untimeliness has not been excused have
    included those where the appellant chooses the agent for
    delivery of the application, bond, or transcript for filing
    with the clerk, and, in these cases, the appellant bears the
    responsibility for the untimeliness of the filing. See, Lopez
    v. IBP, inc., 
    264 Neb. 273
    , 
    646 N.W.2d 628
    (2002) (appel-
    lant was not free from neglect in delay in filing application
    for review where appellant listed wrong address for clerk of
    Workers’ Compensation Court, causing delay in delivery);
    Drier v. Knowles Vans, Inc., 
    144 Neb. 619
    , 
    14 N.W.2d 222
    (1944) (postal authorities’ actions did not excuse appellant’s
    untimely filed bond where appellant selected agent and placed
    burden upon that agent to search out and find justice to deliver
    required bond for appeal); Larson v. 
    Wegner, supra
    (appellant
    selected U.S. mail to transport transcript to clerk of Supreme
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    Court and any negligence in untimely delivery of transcript
    was attributable to appellant who selected agent of transport
    and delivery); U. P. R. R. Co. v. Marston, 
    22 Neb. 721
    , 
    36 N.W. 153
    (1888) (appellant’s attorney’s agreement with jus-
    tice of peace for justice to file transcript in district court did
    not relieve appellant from consequence of justice’s neglect to
    timely file transcript). See, also, Marcotte v. City of 
    Omaha, supra
    (order dismissing appeal was correct where no reason
    appeared in record to excuse failure to timely file petition in
    error and certified copy of transcript).
    Jurisdiction was also defeated by failure to timely file a
    transcript and certified order of the court in Geller v. Elastic
    Stop Nut Corporation, 
    147 Neb. 330
    , 
    23 N.W.2d 271
    (1946),
    wherein the Nebraska Supreme Court held that the failure
    to timely file the aforementioned documents prevented the
    district court from acquiring jurisdiction of an appeal from
    the dismissal of a workers’ compensation case. The Nebraska
    Supreme Court held that although the worker had filed a motion
    to include in the record on appeal to the district court a com-
    plete certified transcript of all the pleadings and orders in the
    compensation court, the transcript was filed out of time under
    the provisions of the relevant statute. Further, no showing was
    made that any officer of the compensation court caused a delay
    in his securing a certified transcript of the pleadings therein,
    including the order of said court appealed from, and the record
    reflected that the transcript had been certified within time to
    have permitted the worker to have perfected the appeal in the
    manner as required by statute.
    In contrast, cases where untimeliness has been found not
    to defeat the jurisdiction of the appellate court have focused
    on the lack of culpability of the appellant. In Liljehorn v.
    Fyfe, 
    178 Neb. 532
    , 
    134 N.W.2d 230
    (1965), the district court
    dismissed the appellants’ appeal from county court because a
    purported transcript, although filed in 30 days, was not signed
    and certified by the county judge. The Nebraska Supreme
    Court stated:
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    There is no doubt that if the officer or judge undertakes
    to perform some act not required of him, he acts as agent
    of appellant and his neglect or failure is attributable to
    appellant himself. [Citations omitted.] But, where the
    default relates only to the failure of the officer to perform
    a duty imposed on him by law, the right to appeal is not
    destroyed by the failure to perfect the appeal in time. In
    such a case appeal may be had after the time fixed by
    statute and a proper transcript filed after term.
    
    Id. at 535,
    134 N.W.2d at 232.
    The record showed on its face an “utter failure by the court
    to perform a mandatory statutory duty charged as the respon-
    sibility of the judge alone.” 
    Id. The appellants
    had no duty to
    perform in securing the signing and certification of the tran-
    script, and the county judge performed the appellants’ job of
    timely delivering the transcript to the clerk of the district court.
    The appellants “were not required to perform a futile act.”
    
    Id. at 536,
    134 N.W.2d at 232. “[O]fficial neglect cannot be
    excused by saying a properly prepared transcript would have
    been ready had appellants called in due time and made another
    demand.” 
    Id. “‘[A] party
    cannot be deprived of his appeal by
    the wrong of the officer, when he is without fault himself.’” 
    Id. at 536,
    134 N.W.2d at 232-33.
    In Cheney v. Buckmaster, 
    29 Neb. 420
    , 
    45 N.W. 640
    (1890),
    an appeal was dismissed for lack of jurisdiction where the
    transcript was not filed within 30 days as required by statute,
    even though the transcript was ordered promptly by a party
    intending to appeal a judgment from county court to district
    court and the failure to promptly file was not on account of the
    carelessness or negligence of the appellants or their attorney,
    but the neglect of the county judge. In opposition to a motion
    to dismiss, the appellants offered the affidavit of the county
    court judge which stated, in part:
    “At the time of the filing of the appeal [the appellant’s]
    attorney[] demanded of me a transcript of the judgment
    docket of said case, and that I would have complied with
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    said demand within thirty days from the date of said
    judgment was it not for the fact that I understood, until
    after the expiration of thirty days from the date of said
    judgment, that I had until the second day of the next term
    of the district court for said county in which to make out
    said transcript.”
    
    Id. at 422,
    45 N.W. at 641.
    The Nebraska Supreme Court reversed and reinstated the
    appeal, noting that it did not appear the judge was to file the
    transcript, that the appellant requested the county judge to
    make a certified copy of the judgment on the fourth day after
    trial, and that the appellant “had a right to expect that the
    request would be complied with in ample time.” 
    Id. at 423,
    45
    N.W. at 641. The court stated, “While the law requires a suitor
    to be diligent in perfecting his appeal, yet if, without any fail-
    ure on his part he is prevented from doing so on account of the
    failure of the proper officer to make out the transcript, he will
    not be deprived of his right of appeal.” 
    Id. Three years
    later, the Nebraska Supreme Court relied upon
    Cheney v. 
    Buckmaster, supra
    , in deciding Omaha Coal, Coke
    & Lime Co. v. Fay, 
    37 Neb. 68
    , 
    55 N.W. 211
    (1893), wherein
    the appellants appealed to the district court but failed to
    timely file a transcript. The Nebraska Supreme Court stated
    in Fay:
    [T]he case of Cheney v. Buckmaster . . . is authority for
    holding that where a transcript was ordered promptly
    a party intending to appeal is justified in relying upon
    the presumption that it will be prepared within a proper
    period, and that he cannot be deprived of his appeal
    by the failure of the county judge to so prepare it. The
    plaintiff in error ordered the transcript immediately upon
    the rendition of judgment, and he was not required by
    law to procure it, and file it in the district court within
    any shorter time than thirty days after the rendition of
    judgment. The transcript was not prepared within this
    time, and even had the [appellant’s] attorney not been ill,
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    had he gone to the county judge to request the transcript
    upon the thirtieth day it would not have been 
    ready. 37 Neb. at 71-72
    , 55 N.W. at 212. See, also, Harte v. Gallagher,
    
    186 Neb. 141
    , 
    181 N.W.2d 251
    (1970) (dismissal of appeal in
    probate case caused by county judge’s failure to perform man-
    datory duty to timely prepare and transmit transcript to district
    court did not defeat appeal); R. V. R. R. Co. v. McPherson, 
    12 Neb. 480
    , 481, 
    11 N.W. 739
    , 740 (1882) (Nebraska Supreme
    Court affirmed district court’s reinstatement of appeal where
    appellant “made every effort to perfect the appeal within the
    time limited by statute, but was prevented by the negligence,
    or failure to perform his duty, of the county judge” to make
    and deliver transcript to her).
    In the instant case, the majority is deciding that the filing of
    the bill of exceptions within 30 days is jurisdictional. Neither
    the Nebraska Supreme Court nor a full panel of the Court
    of Appeals has decided this issue. Although the issue was
    addressed by one judge of this court in State v. Ruiz-Medina,
    
    8 Neb. Ct. App. 529
    , 
    597 N.W.2d 403
    (1999), decisions by one
    judge of this court or the Supreme Court are not binding and
    are not eligible to be cited as precedent. See State v. White,
    
    220 Neb. 527
    , 
    371 N.W.2d 262
    (1985). However, in order
    to proceed with the analysis, I will assume that the major-
    ity’s determination of this issue is correct, without conceding
    this point.
    The appellant timely filed his notice of intent to appeal
    and the praecipe for the bill of exceptions on March 4, 2015,
    and timely filed its application for review with the consent of
    the Attorney General on April 1. The appellant retained the
    responsibility for filing the bill of exceptions with the clerk
    of the Court of Appeals by April 3 but was prevented from
    doing so by the court reporter’s failure to perform her manda-
    tory duty to timely prepare the bill of exceptions. The court
    reporter’s affidavit states that although she received the State’s
    praecipe for the bill of exceptions on March 4, she believed
    that she had 7 weeks from the date of the filing of the notice
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    of appeal to complete the bill of exceptions in this case. Even
    had the State gone to the court reporter on the 30th day to
    obtain the bill of exceptions in order to file it, the bill of
    exceptions would not have been ready. Since there has been no
    negligence or carelessness on the part of the appellant in this
    case, the failure of the court reporter to perform her official
    duties does not deprive the appellant of his appeal. Although
    the majority places the burden on the appellant to call the
    reporter and check the progress of the bill of exceptions, “offi-
    cial neglect cannot be excused by saying a properly prepared
    transcript would have been ready had appellants called in due
    time and made another demand.” Liljehorn v. Fyfe, 
    178 Neb. 532
    , 536, 
    134 N.W.2d 230
    , 232 (1965). The appellant timely
    filed his praecipe for the bill of exceptions on March 4, 2015,
    and “had a right to expect that the request would be complied
    with in ample time.” See Cheney v. Buckmaster, 
    29 Neb. 420
    ,
    423, 
    45 N.W. 640
    , 641 (1890).
    I would find that it would be wrong to deprive this court of
    jurisdiction under the specific facts surrounding the untimeli-
    ness of the filing of the bill of exceptions in this case, since it
    was caused solely by the court reporter, whose responsibility
    it was to timely prepare the bill of exceptions. Therefore, the
    filing of the bill of exceptions on April 7, 2015, which is more
    than 30 days after the February 27 entry of the suppression
    order, does not defeat the jurisdiction of this court.