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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. McALEESE

Cite as 311 Neb. 243

State of Nebraska, appellee, v. 

Andrew McAleese, appellant.

___ N.W.2d ___

Filed March 25, 2022. No. S-21-255.

1. Jurisdiction: Appeal and Error. Determination of a jurisdictional 

issue which does not involve a factual dispute is a matter of law which 

requires an appellate court to reach its conclusions independent from a 

trial court.

2. ____: ____. Subject matter jurisdiction is a question of law for the court, 

which requires an appellate court to reach a conclusion independent of 

the lower court’s decision.

3. Criminal Law: Statutes. Where a criminal procedure is not authorized 

by statute, it is unavailable to a defendant in a criminal proceeding.

4. Criminal Law: Jurisdiction. When an unauthorized motion is filed in a 

criminal case, the court lacks subject matter jurisdiction to adjudicate it.

5. Judgments: Jurisdiction: Collateral Attack. When a collateral attack 

on a criminal judgment is not raised in a recognized proceeding, the 

court lacks jurisdiction over the claim.

6. Criminal Law: Judgments: Jurisdiction. A criminal judgment is void 

when the court rendering it lacks jurisdiction or a legal basis to impose 

judgment.

Appeal from the District Court for Adams County, Terri 

S. Harder, Judge, on appeal thereto from the County Court 

for Adams County, Michael P. Burns, Judge. Judgment of 

District Court affirmed.

Shon T. Lieske, of Lieske, Lieske & Ensz, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/17/2022 01:07 AM CDT
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STATE v. McALEESE

Cite as 311 Neb. 243

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

Nearly 9 years after the county court sentenced him for driving under the influence, third offense, Andrew McAleese filed 

a motion seeking to vacate and correct his sentence to add an 

ignition interlock provision. The county court concluded it had 

no legal authority to consider such a motion, and it denied the 

motion on that basis. McAleese appealed, and the district court 

affirmed. McAleese appeals again, and we granted the State’s 

petition to bypass. We likewise affirm.

BACKGROUND

In 2008, McAleese was convicted in the county court for 

Adams County of driving under the influence of alcohol, third 

offense, a Class W misdemeanor. McAleese was sentenced to a 

60-month term of probation, which included a 30-day jail term, 

a $600 fine, and a 2-year license revocation.

In September 2010, McAleese’s probation was revoked, and 

he was resentenced to a jail term of 120 days, a $600 fine, 

and a 15-year license revocation. McAleese was ordered not 

to drive a motor vehicle during the 15-year period of revocation, and the court impounded his operator’s license during 

that period.

Although neither party brought it to the attention of the sentencing court at the time, the parties agree that in addition to 

the statutory penalty for driving under the influence, 1 the statutory scheme governing the crime of driving under the influence 

also requires a sentencing court to issue an order pursuant to 

Neb. Rev. Stat. § 60-6,197.01 (Reissue 2021). 2 The version of 

§ 60-6,197.01 in effect when McAleese was arrested required 

1 See, generally, Neb. Rev. Stat. § 60-6,196(2) (Reissue 2021) (providing 

anyone who is convicted of driving under the influence shall be “punished 

as provided in sections 60-6,197.02 to 60-6,197.08”).

2 See, generally, Neb. Rev. Stat. § 60-6,197.03(4) (Reissue 2021).
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STATE v. McALEESE

Cite as 311 Neb. 243

the court to impose one of two restrictions on all motor vehicles owned by the convicted person; it could either (1) order 

the motor vehicles immobilized for a period not less than 5 

days nor more than 8 months or (2) order “installation of an 

ignition interlock device . . . if [the defendant] was sentenced 

to an operator’s license revocation of at least one year and has 

completed at least one year of such revocation.” 3

It is undisputed that neither the 2010 sentencing order, nor 

any other order in our record, imposed either of the statutory 

restrictions on motor vehicles owned by McAleese. No appeal 

was taken, and the conviction and sentence became final 30 

days later. 4

Nine years later, McAleese filed what he titled as a “Motion 

to Re-Open the Case [and] Vacate the Previous Sentencing 

Order and to Resentence the Defendant to Authorize an 

Ignition Interlock Device During Revocation.” The motion 

asserted that the 2010 sentencing order failed to include an 

order pursuant to § 60-6,197.01, and it requested that the criminal case be reopened so the sentencing order could be vacated 

and “corrected to order [McAleese] to obtain [and] install an 

ignition interlock device in his vehicle . . . for the remainder 

of his revocation period.”

The county court denied the postjudgment motion. It 

acknowledged that the 2010 sentencing order was “flawed” 

in that it failed to include an order pursuant to § 60-6,197.01. 

But the court observed that the 2010 sentence had not been 

3 See §§ 60-6,197.01(1)(a) and (b) and 60-6,197.03(4) (Cum. Supp. 2006). 

See, also, Neb. Rev. Stat. § 60-6,197.02(4) (Cum. Supp. 2010) (“[a] person 

arrested for a violation of section 60-6,196 or 60-6,197 before May 14, 

2009, but sentenced . . . after May 14, 2009, shall be sentenced according 

to the provisions of section 60-6,197.03 in effect on the date of arrest”).

4 See, State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000) (holding 

when no appeal taken from criminal judgment, it becomes final for all 

purposes); Caradori v. Hamilton, 193 Neb. 500, 227 N.W.2d 850 (1975) 

(same). See, also, State v. Jonsson, 192 Neb. 730, 224 N.W.2d 181 (1974) 

(holding judgment and sentence become final 30 days after entered if no 

appeal filed).
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STATE v. McALEESE

Cite as 311 Neb. 243

appealed, and “now, more than nine years later, any recognized 

flaws are well past that point in time that may have allowed 

the authority of this court to rectify the same.” Concluding 

that it had no “legal authority” to reopen the case or grant the 

requested relief by correcting the sentence, the court denied 

the motion.

McAleese appealed. The district court, sitting as an appellate court, agreed the 2010 sentencing order was erroneous in 

that it failed to include an order pursuant to § 60-6,197.01. But 

the district court also agreed with the county court’s recognition that it lacked jurisdiction to vacate and correct McAleese’s 

sentence, which had long ago become a final judgment. The 

district court therefore affirmed the county court’s order denying the motion based on a lack of jurisdiction.

McAleese filed a timely appeal, and we granted the State’s 

petition to bypass.

ASSIGNMENT OF ERROR

McAleese assigns that the district court erred in affirming 

the county court’s denial of his motion to vacate and correct 

his sentence.

STANDARD OF REVIEW

[1,2] Determination of a jurisdictional issue which does not 

involve a factual dispute is a matter of law which requires an 

appellate court to reach its conclusions independent from a trial 

court. 5 Subject matter jurisdiction is a question of law for the 

court, which requires an appellate court to reach a conclusion 

independent of the lower court’s decision. 6

ANALYSIS

The court’s failure to issue an order pursuant to § 60-6,197.01 

when imposing the 2010 sentence is something McAleese 

5 State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018). See State v. Greer, 

309 Neb. 667, 962 N.W.2d 217 (2021).

6 State v. Chojolan, 288 Neb. 760, 851 N.W.2d 661 (2014).
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STATE v. McALEESE

Cite as 311 Neb. 243

could have brought to the attention of the county court at the 

time of sentencing or could have assigned as error on direct 

appeal. 7 He did neither. Instead, 9 years after his criminal 

judgment became final, McAleese filed a motion asking the 

sentencing court to reopen his criminal case, vacate his sentence, and impose a “corrected” sentence. McAleese directs us 

to no statutory authority for such a motion, and we are aware 

of none.

[3-5] We have long recognized the general rule that where 

a criminal procedure is not authorized by statute, it is unavailable to a defendant in a criminal proceeding. 8 And we have 

said that when an unauthorized motion is filed in a criminal 

case, the court lacks subject matter jurisdiction to adjudicate 

it. 9 Similarly, we have said that when a collateral attack on 

7 See, e.g., State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013) (defendant 

convicted of driving under influence, third offense, assigns error to sen

tencing order that required ignition interlock device and continuous alcohol 

monitor during 15-year license revocation); State v. Hense, 276 Neb. 313, 

753 N.W.2d 832 (2008) (State files error proceeding to challenge sen

tencing court’s failure to impose 15-year license revocation as required by 

statute when sentencing one convicted of operating vehicle during period 

of revocation).

8 See, State v. Melton, 308 Neb. 159, 953 N.W.2d 246 (2021) (holding post

judgment motion to modify nonprobationary sentence is not authorized 

by criminal procedure statutes and thus is not available in criminal pro

ceeding); State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005) (holding 

court lacked jurisdiction over postjudgment motion to vacate death sen

tence because motion not statutorily authorized and same relief could be 

requested in legislatively authorized procedure such as postconviction 

motion); State v. Louthan, 257 Neb. 174, 186, 595 N.W.2d 917, 925 

(1999) (holding Legislature “has not enacted a procedure for asserting 

second-tier challenges to prior plea-based [driving under the influence] 

convictions, and thus, unless such a procedure is constitutionally mandated, 

it ‘is unauthorized and, therefore, unavailable under Nebraska criminal 

procedure’”); State v. Miller, 240 Neb. 297, 481 N.W.2d 580 (1992) 

(holding motions for judgment notwithstanding the verdict allowed in civil 

proceedings, but unauthorized in criminal proceedings).

9 See, Melton, supra note 8; Dunster, supra note 8; Miller, supra note 8.
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STATE v. McALEESE

Cite as 311 Neb. 243

a criminal judgment is not raised in a recognized proceeding, 

the court lacks jurisdiction over the claim. 10

Here, the county court concluded that it lacked “legal authority” to reopen the criminal case or vacate and correct the sentence, and on that basis, it denied the motion. On appeal, the 

district court agreed that the county court lacked jurisdiction to 

vacate and correct McAleese’s sentence, which had long ago 

become a final judgment, and therefore, it affirmed the county 

court’s order denying the motion. We likewise conclude the 

county court lacked subject matter jurisdiction to adjudicate 

the motion filed by McAleese, as there is no recognized criminal procedure which authorizes a sentencing court to reopen a 

criminal case after the judgment has become final in order to 

vacate and correct an alleged sentencing error.

Whether McAleese’s motion is viewed as an unauthorized 

motion to modify a sentence 11 or as an unauthorized collateral 

attack on his criminal judgment, 12 the sentencing court had no 

subject matter jurisdiction to adjudicate the motion, and the 

district court did not err in affirming the county court’s order 

based on a lack of jurisdiction.

For the sake of completeness, we note that McAleese contends that his 2010 sentence was “void, at least in part, due to 

its failure to comply with . . . § 60-6,197.01.” 13 We soundly 

reject this characterization.

[6] It is well-established that a criminal judgment is void 

when the court rendering it lacks jurisdiction or a legal basis 

10 State v. Rodriguez, 288 Neb. 714, 850 N.W.2d 788 (2014). See Dunster,

supra note 8.

11 See, e.g., State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017) (holding 

district court correctly determined it lacked jurisdiction to consider defend

ant’s postjudgment motion seeking to reduce license revocation period in 

sentencing order).

12 See State v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019) (affirming 

denial of 2018 motion requesting jail credit on 1994 sentence, because 

district court had no statutory authority to consider collateral attack on 

sentence which was erroneous but not void).

13 Brief for appellant at 15.
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STATE v. McALEESE

Cite as 311 Neb. 243

to impose judgment. 14 Here, there is no dispute that in 2010, 

the sentencing court had jurisdiction over McAleese and had 

subject matter jurisdiction over the crime for which he was 

sentenced. The alleged sentencing error raised by McAleese 

does not pertain in any respect to the court’s jurisdiction to 

impose the sentence. Instead, it involves only the court’s 

failure to issue an order pursuant to § 60-6,197.01 when it 

imposed the sentence. This alleged error or irregularity is not 

one which rendered the judgment and sentence void, 15 and 

McAleese’s claim to the contrary is meritless.

14 See Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016). See, also, 

Gray v. Kenney, 290 Neb. 888, 863 N.W.2d 127 (2015); Peterson v. 

Houston, 284 Neb. 861, 824 N.W.2d 26 (2012); Rehbein v. Clarke, 257 

Neb. 406, 598 N.W.2d 39 (1999); In re Carbino, 117 Neb. 107, 219 N.W. 

846 (1928); Keller v. Davis, 69 Neb. 494, 95 N.W. 1028 (1903); In re 

Ream, 54 Neb. 667, 75 N.W. 24 (1898).

15 See, Barnes, supra note 12, 303 Neb. at 170, 927 N.W.2d at 67 (explaining 

“[a] sentence outside of the period authorized for a valid crime is errone

ous only; it is not a void sentence” and “failing to give credit for time 

served, while erroneous, does not render the sentence void”); State v. 

Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018) (finding incorrect 

determination that Sex Offender Registration Act applies is error that 

does not void application of act); Meyer v. Frakes, 294 Neb. 668, 676, 

884 N.W.2d 131, 138 (2016) (holding “failure by the court to impose 

a sentence inside of the mandatory statutory limits for a valid crime is 

erroneous only; it is not a void sentence subject to collateral attack”); 

State v. Woodruff, 205 Neb. 638, 641, 288 N.W.2d 754, 757 (1980) (“[a] 

sentence to imprisonment which exceeds the maximum statutory period is 

merely erroneous and not void”); Hickman v. Fenton, 120 Neb. 66, 231 

N.W. 510 (1930) (sentence for less than minimum prescribed by statute is 

erroneous, but not void); McElhaney v. Fenton, 115 Neb. 299, 212 N.W. 

612 (1927) (sentence in excess of statutory period was erroneous, but 

not void); In re Fanton, 55 Neb. 703, 76 N.W. 447 (1898) (same). See, 

also, State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006) (sentence 

imposed pursuant to unconstitutional statute is erroneous, but not void); 

State v. Conover, 270 Neb. 446, 703 N.W.2d 898 (2005) (same); State 

v. Rouse, 206 Neb. 371, 381, 293 Neb. 83, 89 (1980) (explaining that 

“[a]n indeterminate sentence imposed for a crime, where not authorized by 

statute, is erroneous but not void”); State v. Alford, 6 Neb. App. 969, 578 

N.W.2d 885 (1998) (same).
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STATE v. McALEESE

Cite as 311 Neb. 243

CONCLUSION

The district court correctly concluded that 9 years after the 

judgment and conviction became final, the county court lacked 

jurisdiction to adjudicate McAleese’s motion to vacate and 

correct his sentence. We therefore affirm the judgment of the 

district court.

Affirmed.