State v. McColery

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/14/2017 01:09 AM CDT
- 53 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. McCOLERY
Cite as 297 Neb. 53
State of Nebraska, appellee, v.
Scott McColery, appellant.
___ N.W.2d ___
Filed June 23, 2017. No. S-16-1017.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. 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, irrespective of
whether the issue is raised by the parties.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken.
5. Final Orders: Appeal and Error. An order affects a substantial right
if it affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to an appellant before the order
from which an appeal is taken.
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Appeal dismissed.
Brett McArthur for appellant.
Joe Kelly, Lancaster County Attorney, and Jason M. Cooper
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
- 54 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. McCOLERY
Cite as 297 Neb. 53
K elch, J.
NATURE OF CASE
Scott McColery posted a $5,000 appearance bond for a
crime of which he was later convicted. After posting the
bond, McColery assigned the bond funds to his attorney. The
State then filed an affidavit of lien for overdue child support.
After McColery was convicted, he filed a motion to release
the funds to his attorney. That motion was overruled, and
McColery appeals.
FACTS
In September 2015, McColery was charged with strangu-
lation of his girlfriend and was appointed a public defender,
though he later obtained a private attorney. Bond was set
at $50,000.
On October 5, 2015, McColery posted a $5,000 appear-
ance bond. On October 30, McColery filed an “Assignment of
Bond” to his “attorney, Brett McArthur, for his services in the
above entitled matter.”
On November 18, 2015, the State filed an affidavit of lien
for child support indicating that the bond funds held by the
court were subject to garnishment for McColery’s overdue
child support. Attached to the affidavit, a payment history
report reflected that as of November 2015, McColery owed
over $18,000 in overdue child support.
In June 2016, McColery filed a motion to release the bond
funds to his attorney. After a hearing, the motion was over-
ruled in an order dated October 20, 2016. From that order,
McColery appeals.
ASSIGNMENT OF ERROR
McColery’s sole assignment of error is that the district
court erred as a matter of law in overruling his motion to
release the bond funds to his attorney.
- 55 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. McCOLERY
Cite as 297 Neb. 53
STANDARD OF REVIEW
[1,2] A jurisdictional issue that does not involve a factual
dispute presents a question of law.1 An appellate court inde-
pendently reviews questions of law decided by a lower court.2
ANALYSIS
[3] 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, irrespective of whether
the issue is raised by the parties.3
[4] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the court from
which the appeal is taken.4 Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), an order is final for purposes of appeal if it
affects a substantial right and (1) determines the action and
prevents a judgment, (2) is made during a special proceeding,
or (3) is made on summary application in an action after judg-
ment is rendered.5
[5] The State argues that the order overruling McColery’s
motion to release the bond funds does not affect a substan-
tial right because it does not affect any party’s rights to the
bond funds. We agree. An order affects a substantial right if it
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to an appellant before
the order from which an appeal is taken.6
1
Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
2
Id.
3
Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (2013); Carlos H. v.
Lindsay M., 283 Neb. 1004, 815 N.W.2d 168 (2012).
4
Big John’s Billiards v. State, supra note 1.
5
Pearce v. Mutual of Omaha Ins. Co., 293 Neb. 277, 876 N.W.2d 899
(2016).
6
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906
(2016).
- 56 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE v. McCOLERY
Cite as 297 Neb. 53
Here, the subject matter of the litigation was not affected,
because the district court’s order did not determine the rights of
the parties with respect to the bond funds. Although the order
indicated that the funds would not be released to McColery’s
attorney at that time, it did not indicate that the attorney was
not entitled to the funds. Nor did it indicate that the State was
entitled to the funds. Because the order merely holds the funds
in the court, it does not diminish McColery’s or his attorney’s
claim to the funds or eliminate any objection he or his attor-
ney might have to the State’s garnishment of the funds for
child support.
We conclude that McColery’s appeal is premature. The
State has not yet initiated garnishment proceedings. When it
does, McColery’s attorney will be able to intervene pursuant
to Neb. Rev. Stat. § 25-1030.03 (Reissue 2016), which allows
for a third party claiming ownership to intervene in the gar-
nishment proceedings.
Because we find that the order does not affect a substantial
right, it is not a final, appealable order. We therefore dismiss.
CONCLUSION
There is no final order in this case. The appeal is dismissed
as premature.
A ppeal dismissed.