State v. Thalken , 299 Neb. 857 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/15/2018 09:12 AM CDT
- 857 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
State of Nebraska, appellant, v.
M atthew F. Thalken, appellee.
___ N.W.2d ___
Filed May 11, 2018. No. S-16-830.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies the
same standards of review that it applies to decide appeals from criminal
convictions in district court.
6. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
7. Statutes. The interpretation of a statute presents a question of law.
8. Courts: Appeal and Error. Neb. Rev. Stat. § 29-2315.01 (Reissue
2016) authorizes error proceedings taken from the district court sitting
as an intermediate court of appeal.
- 858 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
9. Constitutional Law: Search and Seizure: Evidence. Under the exclu-
sionary rule, evidence obtained in violation of the Fourth Amendment
cannot be used in a criminal proceeding against the victim of the illegal
search and seizure.
10. Probable Cause: Police Officers and Sheriffs: Investigative Stops:
Motor Vehicles. An officer’s stop of a vehicle is objectively reasonable
when the officer has probable cause to believe that a traffic violation, no
matter how minor, has occurred.
11. Probable Cause: Appeal and Error. An appellate court determines
whether probable cause existed under an objective standard of reason-
ableness, given the known facts and circumstances.
12. Probable Cause: Police Officers and Sheriffs. Probable cause is not
defeated by an officer’s incorrect belief regarding the law applicable to
the facts.
13. Probable Cause: Police Officers and Sheriffs: Appeal and Error. In
analyzing probable cause, an appellate court focuses on the facts known
to the officer, not the conclusions the officer drew from those facts.
14. Arrests: Probable Cause: Police Officers and Sheriffs. Police offi-
cers are not required to be legal scholars. This means, among other
things, that the arresting officer’s knowledge of facts sufficient to sup-
port probable cause is more important to the evaluation of the propri-
ety of an arrest than the officer’s understanding of the legal basis for
the arrest.
15. Constitutional Law: Statutes: Jurisdiction: Appeal and Error.
In Nebraska, jurisdiction is vested in an appellate court through the
Nebraska Constitution and the statutes enacted by the Legislature.
16. Statutes: Appeal and Error. The right of appeal in Nebraska is purely
statutory.
17. Constitutional Law: Jurisdiction: Appeal and Error. Except in those
cases where original jurisdiction is specifically conferred by Neb.
Const. art. V, § 2, the Nebraska Supreme Court exercises appellate
jurisdiction.
18. Criminal Law: Appeal and Error. The right to appeal in criminal
cases can be exercised only by a party to whom it is given, and gen-
erally only a person aggrieved or injured by a judgment may take an
appeal from it.
19. Constitutional Law: Double Jeopardy: Appeal and Error. An acquit-
tal cannot be reviewed, on error or otherwise, without putting the
defend­ant twice in jeopardy, thereby violating the Constitution.
20. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy
attaches (1) in a case tried to a jury, when the jury is impaneled and
sworn; (2) when a judge, hearing a case without a jury, begins to hear
- 859 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
evidence as to the guilt of the defendant; or (3) at the time the trial court
accepts the defendant’s guilty plea.
21. Trial: Double Jeopardy. Double Jeopardy bars retrial where all three
elements are present: (1) Jeopardy has attached in a prior criminal
proceeding, (2) the defendant is being retried for the same offense
prosecuted in that prior proceeding, and (3) the prior proceeding has
terminated jeopardy.
22. Statutes: Words and Phrases. Such words and phrases as may have
acquired a peculiar and appropriate meaning in the law shall be con-
strued and understood in Nebraska statutes according to such peculiar
and appropriate meaning.
23. Statutes: Legislature: Presumptions: Intent: Appeal and Error. An
appellate court will, if possible, give effect to every word, clause, and
sentence of a statute, since the Legislature is presumed to have intended
every provision of a statute to have a meaning.
24. Statutes: Appeal and Error. The rules of statutory interpretation
require an appellate court to reconcile different provisions of the statutes
so they are consistent, harmonious, and sensible in the context in which
they appear.
25. Courts: Judgments: Appeal and Error. Under the language of Neb.
Rev. Stat. § 29-2316 (Reissue 2016), when an exception proceeding is
before the Nebraska Supreme Court or Court of Appeals from the dis-
trict court where the trial took place in district court, § 29-2316 restricts
the scope of any ruling directed at the defendant and district court. But
under the language of § 29-2316, where the district court is sitting as an
appellate court, the defendant was not placed in jeopardy in that court
and the limitations of § 29-2316 do not apply to dispositions or orders
directed at the district court.
Appeal from the District Court for Douglas County, J.
Michael Coffey, Judge, on appeal thereto from the County
Court for Douglas County, Lawrence E. Barrett, Judge.
Exception sustained, and cause remanded with directions.
Matthew Kuhse, Omaha City Attorney, and Kevin J. Slimp
for appellant.
W. Randall Paragas, of Paragas Law Offices, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
- 860 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
Per Curiam.
I. NATURE OF CASE
The county court convicted Matthew F. Thalken of operat-
ing a motor vehicle while under the influence of alcohol, and
Thalken appealed to the district court. In vacating Thalken’s
conviction and sentence, the district court focused on a police
officer’s mistake of law regarding a driving statute1 and relied
on one of our decisions.2 We granted the State’s application
for leave to docket an exception proceeding.3 Notwithstanding
the officer’s incorrect view of the law, when probable cause
exists for a stop based on an objective view of the facts known
to the officer, the stop does not offend the Constitution.
We sustain the State’s exception and conclude that because
Thalken was not placed legally in jeopardy by the district
court sitting as an appellate court, Neb. Rev. Stat. § 29-2316
(Reissue 2016) does not prevent us from reversing the district
court’s decision with directions to reinstate Thalken’s convic-
tion. Accordingly, we remand the cause to the district court
with directions to reinstate and affirm Thalken’s conviction
and sentence.
II. STATEMENT OF FACTS
This case arises out of Thalken’s conviction for operating
a motor vehicle while under the influence. At approximately
1:15 a.m. on July 26, 2015, Omaha police officer Pat Soltys
was in his cruiser proceeding north on 168th Street in Omaha,
Nebraska, when he observed a vehicle approach the cruiser
from the rear at a very high rate of speed with illuminated fog
lights—a type of auxiliary light. There were two northbound
lanes of travel, and eventually, the vehicle, driven by Thalken,
proceeded to within 40 feet of Soltys’ cruiser and then passed.
Soltys observed that the headlights of Thalken’s vehicle were
“bright” and the fog lights were “exceptionally bright.” At
1
Neb. Rev. Stat. § 60-6,225 (Reissue 2010).
2
State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013).
3
See Neb. Rev. Stat. § 29-2315.01 (Reissue 2016).
- 861 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
no time did Thalken dim any of his vehicle’s lights. Soltys
made a traffic stop, observed signs of alcohol impairment, and
noticed an odor of alcohol coming from the vehicle.
Soltys testified that the reason he stopped Thalken was not
because he was speeding or following too close, but that he
believed Thalken’s fog lights were illegally illuminated. Soltys
testified that he “believed, at the time, that having fog lights
on, auxiliary lights on, in itself, was a violation.” He further
clarified that consistent with his report regarding the incident,
he “‘[s]topped the vehicle for having its auxiliary lights on
during normal/stable weather.’”
The State charged Thalken in the county court for Douglas
County with operating a motor vehicle while under the influ-
ence. Thalken filed a motion to suppress challenging the
traffic stop. The county court denied the motion and, after a
bench trial on stipulated facts, found him guilty of the charged
offense.
Thalken appealed the county court’s denial of his motion to
suppress and his conviction to the district court. Therefore, in
this case, the district court was sitting as an appellate court.
After a hearing, the district court reversed. In its order, the dis-
trict court determined that Soltys did not have probable cause
to stop Thalken. As to the law, the district court concluded that
the use of auxiliary lights was not a traffic violation, and as
to the facts, the district court found that the traffic stop was
based on Soltys’ incorrect belief that having auxiliary lights
on was in and of itself a traffic violation. The district court
stated that because Thalken drove his vehicle within 200 feet
of the rear of the cruiser with both extremely bright auxiliary
lights and bright headlights illuminated, Thalken had violated
§ 60-6,225(2) and another statute.4 However, referring to our
decision in State v. Au,5 the district court nonetheless vacated
Thalken’s county court conviction and sentence.
4
Neb. Rev. Stat. § 60-6,224(2) (Reissue 2010).
5
State v. Au, supra note 2.
- 862 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
On August 31, 2016, the State filed an application for leave
to docket an exception proceeding. The State claimed that
the district court sitting as an appellate court erred when it
reversed the county court’s ruling denying Thalken’s motion
to suppress and, as a result, reversed the judgment of the
county court and vacated and set aside the conviction. We
granted the State’s application for leave to docket an excep-
tion proceeding.
III. ASSIGNMENTS OF ERROR
The State claims that the district court erred when it (1)
reversed the county court’s ruling which denied Thalken’s
motion to suppress and (2) reversed the judgment of the county
court and ordered that Thalken’s conviction and sentence be
vacated and set aside.
IV. STANDARDS OF REVIEW
[1-5] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion.6 Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record.7 When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable.8 But we independently review questions of law
in appeals from the county court.9 When deciding appeals
from criminal convictions in county court, we apply the same
standards of review that we apply to decide appeals from
criminal convictions in district court.10
6
State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
7
Id.
8
Id.
9
Id.
10
Id.
 - 863 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
[6] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.11
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination.12
[7] The interpretation of a statute presents a question
of law.13
V. ANALYSIS
[8] Before addressing the merits, we note that the State
is the appellant. Absent specific statutory authorization, the
State generally has no right to appeal an adverse ruling in a
criminal case.14 As we have already noted, the State appeals
under § 29-2315.01, which provides an exception to the
general rule by allowing a county attorney to request appel-
late review of an adverse ruling by a district court. We have
interpreted the statute to authorize exception proceedings
taken from the district court sitting as an intermediate court of
appeal.15 Although we have sometimes described a proceed-
ing under § 29-2315.01 as an “error” proceeding, that statute
contemplates the State’s “exception” and in the interest of
precision, we use that term.
1. Probable Cause for Traffic Stop
[9] This appeal arises out of the question of whether there
was legal justification for Soltys to stop Thalken. The Fourth
Amendment to the U.S. Constitution and article I, § 7, of the
11
State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
12
Id.
13
State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
14
State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).
15
State v. Schall, 234 Neb. 101, 449 N.W.2d 225 (1989), overruled on other
grounds, State v. Hense, supra note 14.
- 864 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
Nebraska Constitution protect individuals against unreasonable
searches and seizures by the government. Stopping an auto-
mobile and detaining its occupants constitute a “‘“seizure”’”
within the meaning of the Fourth Amendment, and if the
seizure was illegal, the evidence obtained as a result is inad-
missible.16 Under the exclusionary rule, “evidence obtained
in violation of the Fourth Amendment cannot be used in a
criminal proceeding against the victim of the illegal search
and seizure.”17
[10-13] An officer’s stop of a vehicle is objectively rea-
sonable when the officer has probable cause to believe that
a traffic violation, no matter how minor, has occurred.18 We
determine whether probable cause existed under an objec-
tive standard of reasonableness, given the known facts and
circumstances.19 The question is whether the facts available
to the officer would cause a reasonably cautious person to
believe that the suspect has committed an offense.20 Probable
cause is not defeated by an officer’s incorrect belief regard-
ing the law applicable to the facts.21 We focus on the facts
known to the officer, not the conclusions the officer drew
from those facts.22
In this matter, Thalken urges us to find that the traf-
fic stop was objectively unreasonable because Soltys ini-
tiated it based solely on a mistaken interpretation of the
auxiliary lights statute, § 60-6,225, which Soltys believed
16
Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S. Ct. 3138, 82 L. Ed. 2d
317 (1984).
17
United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 38 L. Ed. 2d
561 (1974). Accord State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005),
overruled on other grounds, State v. McCulloch, 274 Neb. 636, 742
N.W.2d 727 (2007).
18
See State v. Au, supra note 2.
19
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
20
See State v. Au, supra note 2.
21
See State v. McCave, supra note 19.
22
State v. Ball, 271 Neb. 140, 710 N.W.2d 592 (2006).
- 865 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
Thalken had violated when he drove with fog lights turned
on during normal weather conditions. The State contends
that because Thalken drove within 40 feet of Soltys’ cruiser
while displaying exceptionally bright auxiliary lights, i.e.,
fog lights, Thalken violated § 60-6,225(2), which, when read
with other statutes, prohibits the use of bright auxiliary or
fog lights when approaching other vehicles. The State claims
that because of this violation, the traffic stop was supported
by probable cause. Given the State’s position, we limit our
analysis to whether there was probable cause to stop on the
basis that Thalken violated § 60-6,225(2). We agree with the
State that probable cause supported the stop.
We first identify the statutes relevant to our analysis. Section
60-6,225(2) provides, in pertinent part:
Any motor vehicle may be equipped with not to exceed
two auxiliary driving lights [which shall comply with the]
limitations set forth in section 60-6,221. . . . Auxiliary
driving lights shall be turned off at the same time the
motor vehicle’s headlights are required to be dimmed
when approaching another vehicle from either the front
or the rear.
As relevant to this case, the “limitations set forth in sec-
tion 60-6,221” to which reference is made in § 60-6,225(2)
include a provision making it illegal for auxiliary lights to
“project a glaring or dazzling light to persons in front of such
headlights.”23
Section 60-6,221(2) provides:
Headlights shall be deemed to comply with the provi-
sions prohibiting glaring and dazzling lights if none of
the main bright portion of the headlight beam rises above
a horizontal plane passing through the light centers paral-
lel to the level road upon which the loaded vehicle stands
and in no case higher than forty-two inches, seventy-five
feet ahead of the vehicle.
23
Neb. Rev. Stat. § 60-6,221(1) (Reissue 2010).
- 866 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
Finally, § 60-6,224(2) provides that vehicle headlights are
required to be dimmed whenever another vehicle follows
“another vehicle within two hundred feet to the rear.”
As Thalken and the district court agree, Nebraska law does
not make it illegal per se to drive with auxiliary driving lights
including fog lights turned on, and Soltys was incorrect in his
belief that it was improper to drive with fog lights turned on
during normal visibility conditions.24 But the State correctly
notes that because Thalken was within 200 feet of Soltys’
cruiser, § 60-6,224(2) required Thalken’s headlights to be
dimmed, and that he failed to turn off his auxiliary lights,
which violated § 60-6,225(2). The uncontradicted facts show,
as urged by the State, that Thalken violated § 60-6,225(2).
The district court concluded, “[T]he fact that [Thalken]
drove his vehicle within two hundred feet of the rear of the
cruiser with the auxiliary lights on was a violation of Neb.
Rev. Stat. [§§] 60-6,225(2) and 60-6,224(2).” And it is well
settled that a violation, no matter how minor, creates probable
cause for an officer to stop the driver of a vehicle.25 However,
even though the district court found a violation of driving
statutes, the district court did not conclude that probable
cause existed.
Instead, in reversing the ruling and judgment of the county
court, the district court relied on Soltys’ mistake regarding the
vehicle’s fog lights, which served as his basis for the stop, and
determined that “the incorrect assumption of [Soltys] did not
provide him with probable cause to stop [Thalken].” The dis-
trict court reasoned that “[t]o find that [an] officer’s mistaken
belief that a violation had occurred [gives] police officers the
ability to ‘create’ instances which would then be used as prob-
able cause to justify a traffic stop.” The district court referred
to Au 26 as the basis for its ruling. As we explain below, the
district court misperceives Au.
24
See State v. Carnicle, 18 Neb. Ct. App. 761, 792 N.W.2d 893 (2010).
25
State v. Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014).
26
State v. Au, supra note 2.
- 867 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
In Au, we considered a traffic stop based on Neb. Rev.
Stat. § 60-6,139(1) (Reissue 2010), which requires a motor
vehicle operator to remain within a traffic lane “as nearly as
practicable.” We observed that the statute gave leeway in the
determination of whether the facts met the descriptive phrase
“as nearly as practicable” and whether the driver violated the
statute. We noted that the surrounding circumstances must be
considered in determining the existence of a violation and
hence a determination regarding probable cause.
In Au, we said that in contrast to the statute at issue
therein, some other driving statutes strictly declare particular
actions to be traffic violations. One such strict statute was
implicated in State v. Magallanes,27 wherein we held that
the driver of a vehicle crossing a fog line and driving on the
shoulder of the highway, albeit briefly, violated the statute
prohibiting driving on a shoulder. The present case is similar
to Magallanes, in that particular objective facts and not sur-
rounding circumstances determine whether an act was a vio-
lation of a driving statute. The State observed that the uncon-
tradicted facts are that Thalken was within 200 feet of Soltys’
cruiser and that he did not turn off his fog lights, in violation
of § 60-6,225(2). Here, unlike in Au, no subjective or other
facts were required to establish a driving violation and hence
probable cause.
Evidently, the district court in the instant case referred to Au
for that case’s discussion regarding the mistaken understand-
ing of a statute shared by the district court and the sheriff’s
officer. Because as just explained, the statute in Au and the
statute at issue are not comparable and the statute now at issue
is not subject to consideration of additional circumstances
or scholarly legal analysis, the district court’s reliance on Au
was misplaced.
Similar to the district court’s reasoning, Thalken maintains,
relying on Au, that Soltys’ mistaken view of the law makes the
stop improper. But in Au, we determined that the stop was not
27
State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012).
- 868 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
justified due to lack of proof of the surrounding circumstances
as required by the statute, not because the sheriff’s officer or
the district court misperceived the law.
As we have often stated, probable cause to stop a vehicle is
analyzed under an objective reasonableness standard, and thus,
the officer’s subjective intent or motivation is not relevant.28
That is, if an officer is aware of facts amounting to probable
cause to stop a violator, the stop is objectively reasonable and
any ulterior motivation is irrelevant.29
[14] From our preceding discussion, it is clear that Soltys
possessed facts from which it was reasonable to believe
Thalken committed a traffic violation, and the county court
properly denied Thalken’s motion to suppress. The district
court erred when it limited its analysis to Soltys’ mistake
regarding the operation of auxiliary lights statute and ignored
the uncontroverted facts. In the arrest context, we have stated:
“‘Police officers are not required to be legal scholars. This
means, among other things, that the arresting officer’s knowl-
edge of facts sufficient to support probable cause is more
important to the evaluation of the propriety of an arrest than
the officer’s understanding of the legal basis for the arrest.’”30
The same reasoning applies here. As the State urges, given
the uncontroverted facts, “Thalken was required to turn off
his auxiliary lights when he approached Soltys[’] vehicle from
the rear.”31 When Thalken failed to do so, Soltys had knowl-
edge of facts that Thalken had committed an offense under
§ 60-6,225(2); hence, probable cause existed. The county court
did not err when it overruled Thalken’s motion to suppress,
but the district court sitting as an appellate court erred when it
disagreed with this ruling and reversed Thalken’s conviction.
28
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008), citing Whren
v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
29
See State v. Sanders, supra note 25.
30
State v. Ball, supra note 22, 271 Neb. at 154, 710 N.W.2d at 605, quoting
Williams v. Jaglowski, 269 F.3d 778 (7th Cir. 2001).
31
Brief for appellant at 5.
- 869 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
Accordingly, we find merit in the State’s exception to the dis-
trict court’s ruling.
2. Effect of Ruling on Conviction
The parties characterize this appeal as an “‘error pro­
ceeding.’”32 They do so, presumably, because of several of our
previous decisions.33
This, in turn, has led to a focus on language in § 29-2316,
stating in pertinent part:
The judgment of the court in any action taken pursuant
to section 29-2315.01 shall not be reversed nor in any
manner affected when the defendant in the trial court
has been placed legally in jeopardy, but in such cases the
decision of the appellate court shall determine the law
to govern in any similar case which may be pending at
the time the decision is rendered or which may thereafter
arise in the state.
(Emphasis supplied.) The “not be reversed nor in any manner
affected” language of § 29-2316 led us to conclude that where a
defendant has appealed a county court conviction and sentence
in a criminal case to the district court and the district court, as
an intermediate appellate court, has erroneously reversed the
county court’s judgment, a higher appellate court could not,
consistent with § 29-2316, reinstate the county court’s judg-
ment. We take this opportunity to correct this misunderstanding
as well as to identify a basis for appellate jurisdiction other
than exception proceedings.
(a) Basis of Appellate Jurisdiction
[15-17] In Nebraska, jurisdiction is vested in an appel-
late court through the Nebraska Constitution and the statutes
32
See, e.g., id. at 9.
33
See State v. Schall, supra note 15. See, also, State v. Kleckner, 291 Neb.
539, 867 N.W.2d 273 (2015); State v. Vasquez, 271 Neb. 906, 716 N.W.2d
443 (2006); State v. Jones, 264 Neb. 812, 652 N.W.2d 288 (2002); State v.
Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986); State v. Ziemba, 216 Neb.
612, 346 N.W.2d 208 (1984).
- 870 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
enacted by the Legislature.34 Over and over, we have reiter-
ated that the right of appeal in Nebraska is purely statutory.35
Except in those cases where original jurisdiction is specifically
conferred by Neb. Const. art. V, § 2, the Nebraska Supreme
Court exercises appellate jurisdiction.36 And the Nebraska
Constitution limits that appellate jurisdiction to “such appel-
late jurisdiction as may be provided by law.”37 In other words,
appellate jurisdiction must be created by statute.38
This allocation is driven by the constitutional provision
dividing the powers of government into three distinct depart-
ments—legislative, executive, and judicial.39 Together, these
constitutional provisions prevent courts from inventing rules
to enlarge appellate jurisdiction.40 Thus, we focus on the
Nebraska statutes authorizing appellate jurisdiction and pro-
viding procedures for its exercise. And we do so in the limited
context of appeals or exception proceedings in criminal cases
and in particular those cases where the criminal defendant
was convicted in county court and appealed to the district
court; that is, where the district court was sitting as an appel-
late court.
(b) Appeals by Defendants From
Trial Courts in Criminal Cases
[18] Several Nebraska statutes have been correctly under-
stood to generally limit the right to appeal from a trial court’s
judgment in criminal cases to appeals by a defendant.41 Thus,
34
See, Neb. Const. art. V, § 2; Neb. Rev. Stat. § 24-204 (Reissue 2016);
Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623
N.W.2d 308 (2001).
35
See, e.g., Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
36
See id.
37
Neb. Const. art. V, § 2.
38
See Heckman v. Marchio, supra note 35.
39
See Neb. Const. art. II, § 1(1).
40
See Heckman v. Marchio, supra note 35.
41
See State v. Berry, 192 Neb. 826, 224 N.W.2d 767 (1975).
- 871 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
we have said that it is a general rule that the right to appeal in
criminal cases can be exercised only by a party to whom it is
given and that generally, only a person aggrieved or injured by
a judgment may take an appeal from it.42 Separate statutes gov-
ern defendants’ appeals from the respective trial courts.
(i) District Courts
As to criminal proceedings where the district court acts as a
trial court, a combination of statutes limits the right to appeal
to a defendant.43 One statute authorizes an appeal by “a person
. . . convicted of an offense,” in other words, by a defendant.44
This must be read together with the general statutes authoriz-
ing appeals from district court.45 Section 25-1912 specifically
prescribes the appeal procedure, which applies to both civil and
criminal appeals.
But review of criminal cases by appeal is a relatively recent
development. At one time, the method of review of all crimi-
nal cases in the Supreme Court was upon writ of error.46 The
transition away from writs of error began in 1957,47 continued
in 196148 and 1973,49 and culminated in 1982.50 And an under-
standing of the writ of error procedure is essential to making
sense of the exception proceedings now permitted to be taken
by the State.
(ii) County Courts
In contrast to the statutes governing district courts, the
statute limiting appeals from county court in criminal cases
42
Id.
43
Id.
44
Neb. Rev. Stat. § 29-2301 (Reissue 2016).
45
See Neb. Rev. Stat. §§ 25-1911 and 25-1912 (Reissue 2016).
46
See Krell v. Mantell, 157 Neb. 900, 62 N.W.2d 308 (1954).
47
See 1957 Neb. Laws, L.B. 407, § 2.
48
See 1961 Neb. Laws, L.B. 394, § 3.
49
See 1973 Neb. Laws, L.B. 146, § 5.
50
See 1982 Neb. Laws, L.B. 722, § 7.
- 872 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
is explicit: “Any party in a civil case and any defendant in
a criminal case may appeal from the final judgment or final
order of the county court to the district court of the county
where the county court is located.”51 This statute also states
in part, “In a criminal case, a prosecuting attorney may obtain
review by exception proceedings pursuant to sections 29-2317
to 29-2319.”52 Thus, it is clear that in regard to a criminal case
in county court, a defendant may “appeal,” but the State is lim-
ited to an “exception proceeding[].”53
In the county court, § 25-2728 authorizes an appeal by
a defendant.54 A separate statute, Neb. Rev. Stat. § 25-2729
(Reissue 2016), prescribes the procedure to be followed in
taking such an appeal. In such an appeal, the district court
acts as an intermediate court of appeals, and its review is
limited to an examination of the record for error or abuse of
discretion.55 Because Thalken took an appeal from the county
court to the district court, §§ 25-2728 and 25-2729 governed
his appeal.
(c) Appeals by the State
Separate statutes authorize exception proceedings from the
respective trial courts.
(i) District Courts
Before 1959, the State could be permitted to proceed upon
a writ of error to the Supreme Court from a criminal case in
the district court.56 But the proceeding by the State could not
“reverse[] nor in any manner affect[]” the district court’s judg-
ment; rather, its sole purpose was to “determine the law to
51
Neb. Rev. Stat. § 25-2728(1) (Reissue 2016) (emphasis supplied).
52
Id.
53
Id.
54
Id.
55
State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (2017).
56
See Neb. Rev. Stat. §§ 29-2314 to 29-2316 (Reissue 1956).
- 873 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
govern in any similar case” which might be pending or would
arise later.57
But in 1959, the statute was changed to permit the Supreme
Court’s decision to sometimes affect the case giving rise to
the matter before it.58 As of that time, the statute, § 29-2316,
prohibited further proceedings in the particular case “where
the defendant in the trial court has been placed legally in
jeopardy.”59 Where the defendant “had not been placed legally
in jeopardy prior to the entry of [the] erroneous order,” the
proceeding could resume against the defendant, applying the
law determined by the Supreme Court.60 It was also in 1959
that a new statute was adopted prescribing the procedure for
the State to follow to “take exception to any ruling or deci-
sion of the court” by an application for leave to docket an
error proceeding.61 We have described this statute as a “spe-
cial procedure.”62 Although the procedure has been modified
since then to take exception by seeking “leave to docket an
appeal,”63 the language of § 29-2316 (Reissue 2016) remains
essentially unchanged.
(ii) County Courts
Because the case before us addresses an appeal taken by
a defendant to the district court, we omit most of the details
pertaining to appeals or exception proceedings available to
the State from a county court ruling or decision. Prior to the
reorganization of county courts in the early 1970’s, there
was no procedure for appeals from county court judgments
in criminal cases by the State. Rather, the statute governing
57
See § 29-2316 (Reissue 1956).
58
See 1959 Neb. Laws, L.B. 461, § 3.
59
Id. (emphasis omitted).
60
§ 29-2316 (Reissue 1964).
61
§ 29-2315.01 (Reissue 1964). See 1959 Neb. Laws, L.B. 461, § 1.
62
State v. Dunlap, 271 Neb. 314, 316, 710 N.W.2d 873, 875 (2006).
63
See § 29-2315.01 (Reissue 2016).
- 874 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
appeals from magistrates, including justices of the peace,
municipal judges, and county judges, conferred the right of
appeal expressly upon the “defendant.”64 In 1975, a statute,
comparable to the procedures applicable to district courts,
was enacted to permit a prosecuting attorney to take an
“exception” to the district court from a county court ruling
or decision.65
(d) §§ 24-204 and 25-1912:
A Jurisdictional Path
In 1989, in State v. Schall,66 we examined § 29-2315.01
(Cum. Supp. 1988) and reasoned that it provided a jurisdic-
tional basis under which the State could bring a case to the
Supreme Court from the district court, where the district court
sat as an appellate court in an appeal brought by a crimi-
nal defendant. But even in 1989, a jurisdictional path to the
Supreme Court from the district court sitting as an appellate
court, other than by § 29-2315.01, existed. And our decision in
Schall overlooked it.
At the time, the defendant’s appeal in Schall began under
Neb. Rev. Stat. § 24-541.01(1) (Cum. Supp. 1984), which
stated in part, “Any party may appeal from the final judg-
ment or final order of the county court to the district court of
the county where the county court is located.” Neb. Rev. Stat.
§ 24-541.02 (Cum. Supp. 1984) prescribed the familiar appeal
procedure, requiring the filing of a notice of appeal and depos-
iting of a docket fee. Neb. Rev. Stat. § 24-541.06(1) (Cum.
Supp. 1984) required the district court to “render a judgment
which may affirm, affirm but modify, or reverse the judgment
or final order of the county court.” Under those sections, the
district court acted as an intermediate appellate court.67
64
See Neb. Rev. Stat. § 29-611 (Reissue 1964).
65
Neb. Rev. Stat. § 29-2317(1) (Reissue 2016). See 1975 Neb. Laws, L.B.
130, § 1.
66
State v. Schall, supra note 15.
67
See State v. Thompson, 224 Neb. 922, 402 N.W.2d 271 (1987).
- 875 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
In 1989, all appeals from judgments of the district court ran
to the Nebraska Supreme Court. This predated the Nebraska
Court of Appeals, which had not yet come into existence. And
§ 24-204 (Reissue 1989) then conferred upon the Supreme
Court, as that statute’s current version does now, “appellate
and final jurisdiction of all matters of appeal and proceedings
in error which may be taken from the judgments or decrees” of
the district courts. The “judgment” required by § 24-541.06(1)
fell within the scope of the Supreme Court’s appellate jurisdic-
tion. Thus, § 24-204 (Reissue 1989) broadly conferred appel-
late jurisdiction on the Supreme Court over appeals including
those by the State from a district court’s judgments or decrees,
which included those rulings by the district court stemming
from a defendant’s appeal from the county court. Section
25-1911 (Reissue 1985) empowered the Supreme Court to
reverse, vacate, or modify, for errors appearing on the record,
a judgment rendered or final order made by the district court.68
Section 25-1912 (Reissue 1985) merely prescribed the proce-
dure for taking of the further appeal from the district court to
the Supreme Court. And where the district court was sitting as
an appellate court, the issues on appeal to the Supreme Court
would be limited to those issues that had been raised in the
district court.
Thus, our decision in Schall 69 was flawed to the extent
that it overlooked the statutes conferring appellate jurisdic-
tion upon the Supreme Court and prescribing the procedure
for appeal of district court judgments or decrees to this court.
We overlooked the then-existing statutes which provided the
jurisdictional path.
We have adhered to § 29-2315.01 (Reissue 2016) as the
only jurisdictional “path” from the district court to this court
based on the admittedly weak reasoning of Schall. However,
§ 24-204 (Reissue 2016) confers upon this court “appellate
68
See, also, Neb. Rev. Stat. § 25-2733 (Reissue 2016) and State v. Erlewine,
234 Neb. 855, 452 N.W.2d 764 (1990).
69
State v. Schall, supra note 15.
- 876 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
and final jurisdiction of all matters of appeal and proceedings
in error which may be taken from the judgments or decrees
of other courts.” And Neb. Rev. Stat. § 24-1106(1) (Reissue
2016) confers appellate jurisdiction upon the Nebraska Court
of Appeals. Section 25-2728 confers appellate jurisdiction
upon the district court over a defendant’s appeal from a
county court. Instead of relying upon §§ 24-204, 24-1106,
and 25-1912, we have depended upon § 29-2315.01 as the
path for further appeal by the State in criminal cases where
the appeal from county court to district court was initiated by
a defendant.
Because of this history, the parties naturally focused on
§ 29-2315.01 as the only jurisdictional path. This focus led
to filing of the § 25-1912 (Reissue 2016) docket fee in this
case more than 30 days after the district court’s judgment.
Of course, this would be fatal to jurisdiction but for the par-
ties’ reliance on § 29-2315.01. We respect this choice and
proceed accordingly under § 29-2315.01. This will in turn
lead to the effect of the ruling statute, § 29-2316, which we
address later.
[19] We take this opportunity to note that the Legislature
could simplify the procedures governing appeals by the State
in criminal cases, but it is neither prudent nor proper for this
court to usurp the legislative function. In United States v.
Sisson,70 the U.S. Supreme Court, under similar circumstances,
elected to await a legislative solution which would clarify the
jurisdictional basis for criminal appeals taken by the govern-
ment. In the federal criminal law, the government is authorized
by statute to appeal in a criminal case pursuant to several
different statutory provisions subject, of course, to constitu-
tional limitations. Being a jurisdictional statute, the Criminal
Appeals Act precludes an appeal by the government where
implementation of the outcome will be moot due to double
jeopardy; in effect, in federal court where there is no real case
70
United States v. Sisson, 399 U.S. 267, 90 S. Ct. 2117, 26 L. Ed. 2d 608
(1970).
- 877 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
or controversy, there will be no appeal.71 At issue in Sisson
was whether the federal district court’s order styled “arrest
of judgment” was in fact an arrest of judgment which was
appealable under the then-effective Criminal Appeals Act,72
or an acquittal, which is not appealable, because an “acquit-
tal [cannot] be reviewed, on error or otherwise, without put-
ting [the defendant] twice in jeopardy, and thereby violating
the Constitution.”73
Having concluded the order in Sisson was an acquittal and
therefore not appealable by the government on that basis, the
Court considered whether the order was appealable under the
“‘motion in bar’” provision of the Criminal Appeals Act, stat-
ing: “The language of the motion-in-bar provision itself limits
appeals to those granted ‘when the defendant has not been put
in jeopardy.’ We read that limitation to mean exactly what it
says—i. e., no appeal from a motion in bar is to be granted
after jeopardy attaches.”74 The Sisson opinion stated that at the
time the statute was written, “there was little dispute over the
then-settled notion that a defendant was put into jeopardy once
the jury was sworn.”75 The comment regarding “put in jeop-
ardy” echoes the Nebraska Legislature’s choice of language
in 1959, which we discuss later in the portion of our opinion
considering the effect of our ruling under § 29-2316.
The U.S. Supreme Court in United States v. Jorn76 summa-
rized the opinion in Sisson as follows: “[T]he ‘put in jeopardy’
language [precluding an appeal by the government] applied
71
Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S. Ct. 1055,
137 L. Ed. 2d 170 (1997).
72
United States v. Sisson, supra note 70, 399 U.S. at 270. See 18 U.S.C.
§ 3731 (1964 & Supp. V 1970).
73
United States v. Ball, 163 U.S. 662, 671, 16 S. Ct. 1192, 41 L. Ed. 300
(1896).
74
United States v. Sisson, supra note 70, 399 U.S. at 304-05.
75
Id., 399 U.S. at 305.
76
United States v. Jorn, 400 U.S. 470, 474-75, 91 S. Ct. 547, 27 L. Ed. 2d
543 (1971).
- 878 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
whenever the jury had been impaneled, even if the defendant
might constitutionally have been retried under the double jeop-
ardy provisions of the Fifth Amendment.” That is, jurisdiction
would not lie because of the statutory language “put in jeop-
ardy,” not because the defendant did or did not face constitu-
tional double jeopardy in subsequent proceedings.
The Sisson Court refused to read “put in jeopardy” as a
“restatement of the constitutional prohibition” against dou-
ble jeopardy, because such reading would render the phrase
“superfluous.”77 The Sisson Court, stating the obvious, contin-
ued, “No Senator thought that Congress had the power under
the Constitution to provide for an appeal in circumstances in
which that would violate [the double jeopardy prohibition in]
the Constitution.”78 In its conclusion, the Sisson Court stated
that although it was dissatisfied with the jurisdictional limita-
tions of the Criminal Appeals Act, it would adhere to the terms
of the act “until such time as Congress decides to amend
the statute.”79
In 1975, the Court noted that Congress recognized the dif-
ficulties of the Criminal Appeals Act disparaged in Sisson and
finally disposed of the statute in 1970 and replaced it
with a new Criminal Appeals Act intended to broaden the
Government’s appeal rights. . . . [T]he legislative history
makes it clear that Congress intended to remove all statu-
tory barriers to Government appeals and to allow appeals
whenever the Constitution would permit.80
The new statute, passed as Title III of the Omnibus Crime
Control Act of 1970,81 provides in part:
In a criminal case an appeal by the United States
shall lie to a court of appeals from a decision, judgment,
77
United States v. Sisson, supra note 70, 399 U.S. at 305.
78
Id.
79
Id., 399 U.S. at 308.
80
United States v. Wilson, 420 U.S. 332, 337, 95 S. Ct. 1013, 43 L. Ed. 2d
232 (1975).
81
Pub. L. No. 91-644, 84 Stat. 1890.
- 879 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
or order of a district court dismissing an indictment or
information as to any one or more counts, except that no
appeal shall lie where the double jeopardy clause of the
United States Constitution prohibits further prosecution.82
This revision to the Criminal Appeals Act made clear that
“Congress was determined to avoid creating nonconstitutional
bars to the Government’s right to appeal.”83 The evolution of
the federal statute provides a cautionary tale. The language
with respect to jurisdiction was changed by legislature, not the
Court. In any event, because the jurisdictional path in this case
is controlled by § 29-2315.01, we turn to the effect of a ruling
permitted by § 29-2316 in an exception proceeding.
(e) § 29-2316 Remains Controlling
Under the statute pertaining to exception proceedings, as we
explained in State v. Vasquez,84 § 29-2316 limits the relief we
can afford, even if the exception taken by the State is sustained.
This is because the application of § 29-2316 by its terms turns
on whether the defendant had been placed in jeopardy in the
trial court, not by whether the Double Jeopardy Clause bars
further action. Although this is the law in Nebraska, the State
urges us to return to the position expressed in an interlude of
cases in which we equated “placed legally in jeopardy” with
double jeopardy. We reject the State’s suggestion. Because
jurisdiction of this exception proceeding and its disposition are
controlled by §§ 29-2315.01 and 29-2316, we must faithfully
adhere to the terms of these statutory grants.
Section 29-2316 provides in relevant part as follows:
The judgment of the court in any action taken pursu-
ant to section 29-2315.01 shall not be reversed nor in
any manner affected when the defendant in the trial court
has been placed legally in jeopardy, but in such cases
the decision of the [Nebraska Supreme Court or Court of
82
18 U.S.C. § 3731 (1970) (emphasis supplied).
83
United States v. Wilson, supra note 80, 420 U.S. at 339.
84
State v. Vasquez, supra note 33.
- 880 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
Appeals] shall determine the law to govern in any similar
case which may be pending . . . or which may thereafter
arise . . . .
The premise of the State’s suggestion is that the phrase
of § 29-2316 “has been placed legally in jeopardy” in the
trial court is the equivalent of double jeopardy. The premise
is faulty and not necessary to the reversal it seeks, and in
addition, it ignores the importance of the phrase “in the trial
court” found in § 29-2316. As we have discussed above in our
discussion of the “jurisdictional path,” along with the U.S.
Supreme Court as reflected in United States v. Sisson,85 we
recognize that “placed in jeopardy” is not the equivalent of
“double jeopardy.” And as we further explain below, where
the matter is brought to us by an exception proceeding from
the district court sitting as an appellate court, § 29-2316
does not limit the relief we can order, because the defendant
was not placed legally in jeopardy in that court. Our holding
necessarily overrules cases like State v. Kleckner86 and State
v. Figeroa.87
Historically, in ruling on cases brought under § 29-2315.01,
we have focused on the language of §§ 29-2315.01 and
29-2316, especially as they pertain to the scope of relief. For
decades, we respected the language of §§ 29-2315.01 and
29-2316. For example, in a case where the exception proceed-
ing was brought prematurely, we distinguished between the
phrases “has been placed legally in jeopardy” in § 29-2316
(Reissue 1964) and “double jeopardy” and found the former
to be the proper reading of § 29-2316.88 And in a case where
an exception proceeding had been taken from the county
court to the district court under § 29-2317 (Reissue 1975),
we found that the district court’s conclusion that the county
85
United States v. Sisson, supra note 70.
86
State v. Kleckner, supra note 33.
87
State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009).
88
See State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965).
- 881 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
court had erred was correct, but that under the language of
Neb. Rev. Stat. § 29-2319(1) (Reissue 1975), which is com-
parable to § 29-2316, the district court erred when it affected
the judgment.89
Although we detoured for a period of time in equating
“placed legally in jeopardy” with constitutional double jeop-
ardy, we returned to our adherence to the commands of the
statutory language. As we reasoned in Vasquez, when the
Legislature chose language which limited relief where the
defendant has previously been placed legally in jeopardy, it
meant something different from constitutional double jeop-
ardy.90 This is a logical reading of this temporal statute;
§ 29-2316 (Reissue 2016) is structured to limit relief based
on past events, and furthermore, it would be unnecessary for
the Legislature to remind the Supreme Court to refrain from
issuing future orders which violate the defendant’s long-upheld
constitutional rights, including the right to be free from dou-
ble jeopardy.
[20] We read “placed legally in jeopardy” as used by the
Legislature in § 29-2316 as reflecting and incorporating
Nebraska jurisprudence. In Nebraska, jeopardy attaches (1) in
a case tried to a jury, when the jury is impaneled and sworn;
(2) when a judge, hearing a case without a jury, begins to hear
evidence as to the guilt of the defendant; or (3) at the time the
trial court accepts the defendant’s guilty plea.91
[21] In contrast to “placed legally in jeopardy,” more ele-
ments must be present to implicate constitutional double jeop-
ardy under both the federal and state Constitutions. We have
summarized the elements of double jeopardy in Nebraska.92
Double jeopardy bars retrial where all three elements are pres-
ent: (1) Jeopardy has attached in a prior criminal proceeding,
89
See State v. McDermott, 200 Neb. 337, 263 N.W.2d 482 (1978).
90
State v. Vasquez, supra note 33.
91
See id.
92
See State v. Bostwick, 222 Neb. 631, 385 N.W.2d 906 (1986).
- 882 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
(2) the defendant is being retried for the same offense pros-
ecuted in that prior proceeding, and (3) the prior proceeding
has terminated jeopardy.93 Examples of terminated jeopardy
are an acquittal by a jury or by a trial judge,94 a directed ver-
dict of acquittal by the trial judge for insufficient evidence,95
and a conviction reversed for insufficient evidence.96 As is
evident from the foregoing, jeopardy may have attached, but
the several requirements of freedom from double jeopardy
which prohibit retrial may not yet have occurred. The universe
of defendants who fit the description of the legislative phrase
“placed legally in jeopardy” is not the equivalent of and, in
fact, is obviously greater than the universe of defendants who
are threatened by double jeopardy.
[22,23] We read the phrase “has been placed legally in jeop-
ardy” as having been inserted in § 29-2316 by the Legislature
intentionally and with purpose. And under the statute prescrib-
ing general rules of construction, such “words and phrases . . .
as may have acquired a peculiar and appropriate meaning in
the law shall be construed and understood [in Nebraska stat-
utes] according to such peculiar and appropriate meaning.” 97
We will, if possible, give effect to every word, clause, and
sentence of a statute, since the Legislature is presumed to
have intended every provision of a statute to have a meaning.98
Just as the U.S. Supreme Court recognized concerning simi-
lar terms in Sisson, equating “placed legally in jeopardy” in
the controlling statute, § 29-2316, with double jeopardy was
93
See id.
94
See Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717
(1978).
95
See Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30
(1981).
96
See Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1
(1978).
97
Neb. Rev. Stat. § 49-802(5) (Reissue 2010).
98
State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015).
- 883 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
warranted neither by the jurisprudence nor by the language or
meaning of that statute.99
(f) Effect of § 29-2316 in Exception Proceedings
After the Defendant’s Appeal From
County Court to District Court
We turn now to the phrase “in the trial court” in § 29-2316,
which we understand describes where “placed legally in jeop-
ardy” occurred. To repeat, the first sentence of § 29-2316
states:
The judgment of the court in any action taken pursu-
ant to section 29-2315.01 shall not be reversed nor in
any manner affected when the defendant in the trial court
has been placed legally in jeopardy, but in such cases
the decision of the [Nebraska Supreme Court or Court of
Appeals] shall determine the law to govern in any similar
case which may be pending . . . or which may thereafter
arise . . . .
[24] We recognize that “trial court” lacks specificity, but
we give it a consistent, harmonious, and sensible reading in
the statutory context in which it appears.100 Thus, with respect
to relief under § 29-2316, placed legally in jeopardy “in the
trial court” means the scope of grantable appellate relief is
restricted on cases filed with us or in the Court of Appeals
reviewing a ruling from the forum where jeopardy attached.
So where the trial took place in district court and the exception
proceeding was taken therefrom, the scope of relief is limited,
as we recognized in State v. Hense.101 Likewise, where the trial
took place in the county court and an exception proceeding is
taken to the district court, under § 29-2319 (Reissue 2016),
the district court is limited in the scope of relief it can grant
to the State.102
99
United States v. Sisson, supra note 70.
100
See Huntington v. Pedersen, 294 Neb. 294, 883 N.W.2d 48 (2016).
101
State v. Hense, supra note 14.
102
See State v. McDermott, supra note 89.
- 884 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
However, in a criminal case where the district court is sitting
as an appellate court in an appeal brought by the defendant,
the defendant was not placed legally in jeopardy in that appel-
late court; he or she effectively arrived at the district court on
appeal already cloaked in jeopardy, having been placed legally
in jeopardy by the county court. Such defendant was not placed
legally in jeopardy by the district court, and our orders effec-
tuating relief where the district court was sitting as an appel-
late court are not circumscribed by the statutory limitation in
§ 29-2316. To the extent that our decision in Schall 103 misin-
terpreted the meaning of the “trial court” in its jurisdictional
analysis, we disapprove of its interpretation.
[25] In sum, under the language of § 29-2316, when an
exception proceeding is before the Nebraska Supreme Court
or Court of Appeals from the district court where the trial took
place in district court, § 29-2316 restricts the scope of any rul-
ing directed at the defendant and district court. But under the
language of § 29-2316, where the district court is sitting as an
appellate court the defendant was not placed in jeopardy in that
court, and the limitations of § 29-2316 do not apply to disposi-
tions or orders directed at the district court.
Historically, although our language was sometimes less than
precise, we ordinarily followed the foregoing principles in
cases before us with respect to exception proceedings chal-
lenging the rulings of the district court sitting as an appellate
court. In cases such as State v. Schaf 104 which were docketed
as exception proceedings taken from the district court sitting
as an appellate court, although we referred in our opinion
to the matter before us as an “appeal,” we granted relief in
addition to pronouncing the correct law. Thus, historically, in
103
State v. Schall, supra note 15.
104
State v. Schaf, 218 Neb. 437, 355 N.W.2d 793 (1984). But see State v.
Golgert, supra note 33; State v. Merithew, 220 Neb. 530, 371 N.W.2d
110 (1985); and State v. Wilkinson, 219 Neb. 685, 365 N.W.2d 478 (1985)
(sustaining exception).
- 885 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
exception proceedings, we recognized that § 29-2316 was not
an impediment to correcting an erroneous determination of the
district court sitting as an appellate court. As we have recently
emphasized, the “Legislature has prescribed when a court may
exercise appellate jurisdiction,”105 and in the exercise of our
appellate jurisdiction under §§ 29-2315.01 and 29-2316, cor-
recting the district court sitting as an appellate court adheres to
the language of § 29-2316.
In view of our analysis above holding that where an excep-
tion proceeding pursuant to § 29-2315.01 is taken from the
district court sitting as an appellate court to the Nebraska
Supreme Court or Court of Appeals, the disposition of the
matter is not limited by the restrictive language of § 29-2316,
we must overrule the dispositional portion of cases such as
Kleckner106 and Figeroa.107
Because the matter is before us as an exception proceeding
under § 29-2315.01, the relief we can afford is controlled by
§ 29-2316. As we explain above, the defendant was not “placed
legally in jeopardy” in the district court sitting as an appellate
court, and therefore, § 29-2316 does not limit the relief in this
case and we therefore vacate the ruling of the district court.
VI. CONCLUSION
As we discussed above, the State seeking review of the
district court’s decision sitting as an appellate court in a crimi-
nal appeal brought to it by a defendant could have filed an
appeal under §§ 24-204 and 25-1912. However, the State filed
an exception proceeding under § 29-2315.01, for which we
have historically recognized jurisdiction. Also, as we explained
above, § 29-2316 does not limit the relief we can afford the
State, where the matter is brought to us by the State from the
district court sitting as an appellate court.
105
Heckman v. Marchio, supra note 35, 296 Neb. at 464, 894 N.W.2d at 301.
106
State v. Kleckner, supra note 33.
107
State v. Figeroa, supra note 87.
- 886 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. THALKEN
Cite as 299 Neb. 857
Having analyzed the State’s contention in this case that
the district court sitting as an appellate court erred when it
reversed Thalken’s conviction, we find merit to the State’s
argument. Because the uncontroverted known facts showed
that Thalken committed a traffic violation for failure to turn off
his fog lights, in violation of § 60-6,225(2), there was probable
cause for the traffic stop and the county court properly denied
Thalken’s motion to suppress. The district court, sitting as an
appellate court, erred when it ruled to the contrary and vacated
Thalken’s conviction and sentence.
Because we are not prevented from granting relief under
§ 29-2316, we sustain the State’s exception and reverse the
district court’s order which had reversed Thalken’s conviction
and sentence. Accordingly, we remand the cause to the district
court with directions to reinstate and affirm Thalken’s convic-
tion and sentence.
Exception sustained, and cause
remanded with directions.
Wright and K elch, JJ., not participating in the decision.