- 857 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

STATE v. THALKEN

Cite as 299 Neb. 857

State of Nebraska, appellant, v. 

Matthew 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 appellate 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 decision 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 historical 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 independently 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.

Nebraska Supreme Court Online Library

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

06/29/2018 11:13 AM CDT
- 858 -

Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

STATE v. THALKEN

Cite as 299 Neb. 857

9. Constitutional Law: Search and Seizure: Evidence. 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.

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 reasonableness, 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 officers are not required to be legal scholars. This means, among other 

things, that the arresting officer’s knowledge 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.

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 generally only a person aggrieved or injured by a judgment may take an 

appeal from it.

19. Constitutional Law: Double Jeopardy: Appeal and Error. An acquittal 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 Advance Sheets

299 Nebraska Reports

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 construed 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 district 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 Advance Sheets

299 Nebraska Reports

STATE v. THALKEN

Cite as 299 Neb. 857

Per Curiam.

I. NATURE OF CASE

The county court convicted Matthew F. Thalken of operating 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 conviction. 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 Advance Sheets

299 Nebraska Reports

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 influence. 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 district 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 Advance Sheets

299 Nebraska Reports

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 exception 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 Advance Sheets

299 Nebraska Reports

STATE v. THALKEN

Cite as 299 Neb. 857

[6] 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.11

Regarding historical 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 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 appellate 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 proceeding 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 Advance Sheets

299 Nebraska Reports

STATE v. THALKEN

Cite as 299 Neb. 857

Nebraska Constitution protect individuals against unreasonable 

searches and seizures by the government. Stopping an automobile 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 inadmissible.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 reasonable 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 objective 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 regarding 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 traffic stop was objectively unreasonable because Soltys initiated 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 Advance Sheets

299 Nebraska Reports

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 section 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 provisions 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 parallel 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 Advance Sheets

299 Nebraska Reports

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 district 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 probable cause to justify a traffic stop.” The district court referred 

to Au26 as the basis for its ruling. As we explain below, the 

district court misperceives Au.

24 See State v. Carnicle, 18 Neb. 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 Advance Sheets

299 Nebraska Reports

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 surrounding circumstances determine whether an act was a violation of a driving statute. The State observed that the uncontradicted 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 understanding 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 Advance Sheets

299 Nebraska Reports

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 knowledge 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 knowledge 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 Advance Sheets

299 Nebraska Reports

STATE v. THALKEN

Cite as 299 Neb. 857

Accordingly, we find merit in the State’s exception to the district court’s ruling.

2. Effect of Ruling on Conviction

The parties characterize this appeal as an “‘error proceeding.’”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 judgment. 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 appellate 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 Advance Sheets

299 Nebraska Reports

STATE v. THALKEN

Cite as 299 Neb. 857

enacted by the Legislature.34 Over and over, we have reiterated 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 appellate 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 departments—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 providing 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 appellate court.

(b) Appeals by Defendants From 

Trial Courts in Criminal Cases

[18] Several Nebraska statutes have been correctly understood 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 Advance Sheets

299 Nebraska Reports

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 govern 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 authorizing 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 criminal 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 understanding 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 Advance Sheets

299 Nebraska Reports

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 limited 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 judgment; 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 Advance Sheets

299 Nebraska Reports

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 decision of the court” by an application for leave to docket an 

error proceeding.61 We have described this statute as a “special 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 Advance Sheets

299 Nebraska Reports

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 jurisdictional 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 criminal 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 judgment 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 depositing 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 Advance Sheets

299 Nebraska Reports

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 jurisdiction. Thus, § 24-204 (Reissue 1989) broadly conferred appellate 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 procedure 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 Schall69 was flawed to the extent 

that it overlooked the statutes conferring appellate jurisdiction 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 Advance Sheets

299 Nebraska Reports

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 parties’ 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 government. 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 constitutional 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 Advance Sheets

299 Nebraska Reports

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 “acquittal [cannot] be reviewed, on error or otherwise, without putting [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, stating: “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 jeopardy” 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 summarized 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 Advance Sheets

299 Nebraska Reports

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 jeopardy provisions of the Fifth Amendment.” That is, jurisdiction 

would not lie because of the statutory language “put in jeopardy,” not because the defendant did or did not face constitutional double jeopardy in subsequent proceedings.

The Sisson Court refused to read “put in jeopardy” as a 

“restatement of the constitutional prohibition” against double jeopardy, because such reading would render the phrase 

“superfluous.”77 The Sisson Court, stating the obvious, continued, “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 limitations 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 difficulties 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 statutory 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 Advance Sheets

299 Nebraska Reports

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 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 [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 Advance Sheets

299 Nebraska Reports

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 proceeding 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 Advance Sheets

299 Nebraska Reports

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 comparable 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 jeopardy, 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 jeopardy.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 double 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 elements must be present to implicate constitutional double jeopardy 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 present: (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 Advance Sheets

299 Nebraska Reports

STATE v. THALKEN

Cite as 299 Neb. 857

(2) the defendant is being retried for the same offense prosecuted 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 verdict 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 jeopardy” as having been inserted in § 29-2316 by the Legislature 

intentionally and with purpose. And under the statute prescribing 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 statutes] 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 similar 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 Advance Sheets

299 Nebraska Reports

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 jeopardy” occurred. To repeat, the first sentence of § 29-2316 

states:

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 [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 Advance Sheets

299 Nebraska Reports

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 appellate 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 effectuating relief where the district court was sitting as an appellate court are not circumscribed by the statutory limitation in 

§ 29-2316. To the extent that our decision in Schall103 misinterpreted 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 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.

Historically, although our language was sometimes less than 

precise, we ordinarily followed the foregoing principles in 

cases before us with respect to exception proceedings challenging 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 Advance Sheets

299 Nebraska Reports

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, correcting 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 exception 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 criminal 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.

105Heckman 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 Advance Sheets

299 Nebraska Reports

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 conviction and sentence.

 Exception sustained, and cause

remanded with directions.

Wright and Kelch, JJ., not participating in the decision.