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STATE v. HARRIS

Cite as 307 Neb. 237

State of Nebraska, appellant and 

cross-appellee, v. Jack E. Harris, 

appellee and cross-appellant.

___ N.W.2d ___

Filed September 25, 2020. Nos. S-19-130, S-19-133.

1. Jurisdiction. A question of jurisdiction is a question of law.

2. Judgments: Appeal and Error. Appellate courts independently review 

questions of law decided by a lower court.

3. ____: ____. The construction of a mandate issued by an appellate court 

presents a question of law, on which an appellate court is obligated to 

reach a conclusion independent of the determination reached by the 

court below.

4. 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.

5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a final order or final 

judgment entered by the court from which the appeal is taken.

6. Final Orders: Appeal and Error. Among the three types of final orders 

which may be reviewed on appeal is an order affecting a substantial 

right made during a special proceeding.

7. Actions: Words and Phrases. An action involves prosecuting the 

alleged rights between the parties and ends in a final judgment, whereas 

a special proceeding does not.

8. Final Orders. Whether an order affects a substantial right depends 

on whether it affects with finality the rights of the parties in the subject matter.

9. ____. Whether an order affects a substantial right depends on whether 

the right could otherwise effectively be vindicated.

10. Final Orders: Appeal and Error. An order affects a substantial right 

when the right would be significantly undermined or irrevocably lost by 

postponing appellate review.

Nebraska Supreme Court Online Library

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

11/20/2020 02:08 AM CST
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11. Appeal and Error: Words and Phrases. In appellate procedure, a 

“remand” is an appellate court’s order returning a proceeding to the 

court from which the appeal originated for further action in accordance 

with the remanding order.

12. Courts: Appeal and Error. After receiving a mandate, a trial court is 

without power to affect rights and duties outside the scope of the remand 

from an appellate court.

13. Courts: Judgments: Appeal and Error. A lower court may not modify 

a judgment directed by an appellate court; nor may it engraft any provision on it or take any provision from it.

14. Judgments: Appeal and Error. No judgment or order different from, or 

in addition to, the appellate mandate can have any effect.

15. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial 

court is without power to affect rights and duties outside the scope of the 

remand from an appellate court, any order attempting to do so is entered 

without jurisdiction and is void.

Appeals from the District Court for Douglas County: 

William B. Zastera and Jodi L. Nelson, Judges. Appeal in 

No. S-19-130 dismissed. Judgment in No. S-19-133 vacated, 

and cause remanded with directions.

Douglas J. Peterson, Attorney General, and James D. Smith, 

Solicitor General, for appellant.

Sarah P. Newell, of Nebraska Commission on Public 

Advocacy, for appellee.

Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and 

Moore and Welch, Judges.

Papik, J.

Two decades ago, following a jury trial, Jack E. Harris was 

convicted of first degree murder and use of a deadly weapon 

to commit a felony. His convictions were affirmed on direct 

appeal. As is often the case in such matters, years of litigation followed, in which Harris filed many motions collaterally 

attacking his convictions and sentences. After we remanded 

for further proceedings in an appeal involving such collateral attacks in 2017, the district court granted Harris’ motion 
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for new trial and, later, his motion for absolute discharge on 

speedy trial grounds. On the State’s appeal from these orders, 

we conclude that the district court did not comply with our 

mandate in an earlier appeal and that its orders granting 

Harris a new trial and absolute discharge were thus void. 

Accordingly, we vacate those orders and remand the cause for 

further proceedings.

I. BACKGROUND

1. Conviction, Earlier Proceedings, 

and Appeals by Harris

In 2000, following a jury trial, Harris was convicted of 

first degree murder and use of a deadly weapon to commit a 

felony. He was sentenced to life imprisonment on the murder 

conviction and 10 to 20 years’ imprisonment on the weapons 

conviction, to be served consecutively. We affirmed on direct 

appeal. See State v. Harris, 263 Neb. 331, 640 N.W.2d 24 

(2002) (Harris I).

Several unsuccessful motions and appeals by Harris followed. See State v. Harris, 267 Neb. 771, 677 N.W.2d 147 

(2004) (Harris II); State v. Harris, 274 Neb. 40, 735 N.W.2d 

774 (2007) (Harris III); State v. Harris, 292 Neb. 186, 871 

N.W.2d 762 (2015) (Harris IV); and State v. Harris, 296 Neb. 

317, 893 N.W.2d 440 (2017) (Harris V).

In Harris IV, we reversed the district court order that dismissed Harris’ second postconviction motion, which had been 

filed simultaneously with a new trial motion and a motion for 

writ of error coram nobis. Harris’ motions rested on allegations (1) that Howard “Homicide” Hicks, Harris’ accomplice 

and a key witness in Harris’ trial, disclosed to fellow inmate 

Terrell McClinton that Hicks had lied during his testimony 

and that Hicks alone, not Harris, had killed the victim; (2) 

that another witness, Curtis Allgood, generally corroborated 

McClinton’s account and provided details placing Hicks near 

the crime scene at the time of the murder; and (3) that Harris 

was unaware of this information until McClinton’s contact with 
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Harris’ attorney in 2006 and was prevented from discovering 

the information earlier because of misconduct by the prosecutor and the State’s witness.

The district court had earlier granted Harris leave to file a 

third amended postconviction motion raising claims similar 

to the second motion’s and additional claims concerning the 

State’s plea agreement with Hicks. Although the court, the parties, and the evidence gave indications that the third amended 

postconviction motion was addressed at the subsequent June 

28, 2013, hearing, Harris had not filed it. At the hearing, the 

district court announced that the matter was before the court 

on the third amended motion for postconviction relief and 

took judicial notice of the bill of exceptions for Harris’ trial 

in 1999. The State did not assert that Harris had failed to file 

the third amended motion, but instead offered a copy of the 

motion and the court’s docket entries showing that Harris had 

been given leave to file the motion. Harris presented evidence 

that was relevant only to his third amended motion for postconviction relief. Following the hearing, the district court’s order 

expressly dismissed the second postconviction motion, and 

Harris appealed.

In Harris IV, we characterized the 2013 hearing as a hearing on the third amended postconviction motion. We held that 

“a court presented with a motion for postconviction relief 

which exists simultaneously with a motion seeking relief under 

another remedy must dismiss the postconviction motion without prejudice when the allegations, if true, would constitute 

grounds for relief under the other remedy sought.” Harris 

IV, 292 Neb. at 191, 871 N.W.2d at 766. We determined that 

because the motion for new trial was time barred under the 

statute then in effect and because there was no possibility of 

obtaining relief through a writ of coram nobis, the district 

court erred in dismissing the motion for postconviction relief. 

See Neb. Rev. Stat. § 29-2103 (Reissue 2008). We remanded 

for consideration of “the postconviction motion” on the merits. 

Harris IV, 292 Neb. at 194, 871 N.W.2d at 768.
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On remand, the district court did not conduct a new evidentiary hearing but considered the evidence presented at the 

2013 evidentiary hearing. It denied postconviction relief, but 

given the matters addressed at the 2013 hearing, it was unclear 

whether the district court’s order disposed of the second 

postconviction motion or the third amended postconviction 

motion involving similar and additional claims. The court’s 

order, signed on March 3, 2016, referred to the “[s]econd” 

motion for postconviction relief and addressed claims raised 

only in the second motion. It stated that “[t]he matter came 

on for full evidentiary hearing on June 28, 2013.” The court 

did not address Harris’ claims regarding Hicks’ plea agreement raised only in the third amended postconviction motion, 

but specifically ruled on his claims that the State suppressed 

information possessed by Allgood before Harris’ trial and by 

McClinton before Harris’ trial, direct appeal, or postconviction proceedings. Harris appealed, which led to our decision 

in Harris V.

In Harris V, we examined the record from the 2013 postconviction hearing and took judicial notice of our previous 

records and decisions in Harris’ case. We determined that the 

district court properly denied relief on Harris’ claim that the 

State suppressed evidence of McClinton’s statements in his 

affidavit, but that it failed to apply the correct standard to 

Harris’ claim that the State suppressed Allgood’s statements at 

Harris’ 1999 murder trial and failed to address Harris’ claims 

from the third amended postconviction motion concerning the 

State’s plea agreement with Hicks. We affirmed in part, and in 

part reversed and remanded for further proceedings to clarify 

which postconviction motion the court intended to rule on in 

the March 2016 order and, if necessary, to enter an order to 

dispense with all of Harris’ claims for relief:

The court’s reasoning that no suppression occurred 

because the prosecutor did not know about Allgood’s 

statements to investigators was incorrect. Under both 

federal and state law, the prosecutor had a duty to learn 
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of favorable material evidence known to others acting on 

the government’s behalf in the case. Thus, the State’s duty 

to disclose favorable material evidence existed even if the 

evidence was known only to police investigators and not 

to the prosecutor.

Further, the court’s summary conclusion that Allgood’s 

statements were not exculpatory did not comply with 

the applicable standards for evaluating Harris’ claims. 

Favorable evidence includes both exculpatory and 

impeachment evidence.

Harris alleged in his motion that Allgood’s statements 

would have corroborated his alibi defense and contradicted Hicks’ testimony that he left the murder scene 

with Harris and drove around with him, disposing of 

evidence and distributing the money. Harris also alleged 

that he would have cross-examined Hicks about his contacts with [Corey] Bass[, an alleged drug dealer for 

whom McClinton said Hicks killed people]. His trial 

attorney stated that knowing whether Hicks “was with 

others or alone in terms of the story that he related” 

may have undermined Hicks’ credibility and reinforced 

Harris’ alibi.

The court did not consider whether Allgood’s statements to the officer would have impeached Hicks’ credibility. Nor did the court explain why it concluded that 

Allgood’s statements were not “potentially exculpatory 

information.”

As explained, we do not have the bill of exceptions 

from Harris’ trial. Whether the State suppressed material exculpatory information by not disclosing Allgood’s 

statements must be evaluated in the light of the trial 

evidence. The court’s summary conclusion does not satisfy that requirement. Accordingly, we remand the cause 

for further clarification as to whether Allgood’s statements were not exculpatory or would not have impeached 

Hicks’ credibility.

. . . .
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[W]e cannot determine from the record whether the 

district court intentionally or erroneously failed to rule on 

Harris’ claims regarding Hicks’ plea agreement. Though 

an argument can be made that the parties consented to 

try all of the claims set forth in Harris’ third amended 

motion for postconviction relief, making such determination would be needlessly speculative. The better course 

is for this matter to be remanded to the district court for 

clarification as to which motion the court intended to 

rule on and, if necessary, the entry of an order which dispenses with all of Harris’ claims for relief.

. . . .

We conclude that the court properly denied relief 

on Harris’ claim that the State suppressed evidence of 

McClinton’s statements in his affidavit. We conclude that 

the court applied the wrong standards in denying Harris 

relief on his claim that the State suppressed Allgood’s 

statements to police by focusing only on the prosecutor’s 

knowledge of Allgood’s statements, by failing to consider 

whether Allgood’s statements would have impeached 

Hicks’ credibility, and by failing to examine whether 

Allgood’s statements were material in the light of the 

trial evidence. Finally, the court erred in failing to accurately set forth which motion for postconviction relief it 

intended to address.

If the court concludes that the State suppressed material evidence regarding Allgood’s statements to police or 

Hicks’ plea agreement, it must evaluate the materiality 

of that suppression cumulatively. That is, the prejudicial 

effect of any new suppression must be considered cumulatively with the State’s known suppression of [Officer 

Leland Cass’ police] report.

Harris V, 296 Neb. at 342-46, 893 N.W.2d at 458-60. Following 

the release of our opinion, we issued our mandate ordering the 

district court to “proceed to enter judgment in conformity with 

the judgment and opinion of this court.”
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2. New Trial Order

On June 15, 2017, after our mandate in Harris V issued, 

Harris filed his third amended motion for postconviction relief, 

which he had previously been given leave to file, along with a 

motion for new trial based on newly discovered evidence. See 

Neb. Rev. Stat. § 29-2101(5) (Reissue 2016). In his motion for 

new trial, Harris alleged (1) that Hicks disclosed to McClinton 

that Hicks had lied during his testimony and that Hicks alone, 

not Harris, had killed the victim; (2) that Allgood corroborated 

McClinton’s account of Hicks’ statement; (3) that the prosecutor misrepresented or allowed Hicks to misrepresent Hicks’ 

plea agreement during Harris’ trial, documentation of which 

Harris’ counsel obtained in 2010; and (4) that another witness 

at Harris’ trial, Tony Bass, later told another inmate that he had 

lied during his testimony. Harris referenced supporting affidavits and other documentary evidence attached to the motion. 

He concluded by requesting a hearing to substantiate his claims 

by affidavit or testimony.

A hearing was held on Harris’ motions on July 24, 2017, 

Judge William B. Zastera presiding. The parties presented 

arguments, but no evidence was offered or received.

On September 21, 2017, the district court entered an order 

granting Harris’ motion for new trial and dismissing Harris’ 

third amended motion for postconviction relief.

Relevant to the mandate in Harris V, the district court stated:

On March 3, 2016, this Court denied [Harris’] Amended 

Second Verified Motion for Postconviction Relief. 

[Harris] timely appealed and the Nebraska Supreme Court 

affirmed in part and reversed in part this Court’s prior 

decision. . . .

At this juncture, [Harris] has filed a Third Amended 

Verified Motion for Postconviction Relief and a Motion 

for New Trial (Newly Discovered Evidence). In light of 

the Nebraska Supreme Court’s findings in [Harris V], the 

Court now considers the current motions filed by [Harris].

Quoting language from Harris IV, the district court determined that it had to consider Harris’ motion for new trial 
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before addressing the third amended motion for postconviction relief. The district court noted our finding in Harris IV

that Harris’ previous motion for new trial was barred by the 

then-applicable statute of limitations, but found that the current motion was not time barred by the current version of 

§ 29-2103(4) (Reissue 2016). That section requires motions for 

new trial based on newly discovered evidence to be brought 

within 5 years of the verdict “unless the motion and supporting documents show the new evidence could not with reasonable diligence have been discovered and produced at trial and 

such evidence is so substantial that a different result may have 

occurred.” § 29-2103(4). Accord § 29-2101(5).

The district court went on to observe that traditionally, new 

trial was not granted for issues of impeachment, but that where 

it appears the defendant has not been afforded a fair trial, it is 

the court’s duty to grant new trial. See State v. Robinson, 198 

Neb. 785, 255 N.W.2d 835 (1977). Moreover, it noted that in 

the context of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 

10 L. Ed. 2d 215 (1963), impeachment evidence can be of such 

a weight that depriving the defendant of access to it can change 

the outcome of trial. The district court stated that it was unclear 

whether Harris would be procedurally barred from obtaining 

a new trial under § 29-2103, but that it believed Harris was 

entitled to a new trial because his constitutional rights had been 

implicated. The court continued:

First, after reviewing the Bill of Exceptions, it is apparent to this Court that material evidence was suppressed 

at [Harris’] trial, whether done so intentionally or not. 

Regardless of intent, it is clear that the entirety of [an officer’s] police report was not disclosed which contained the 

exculpatory statements of . . . Allgood. Further, it is possible, that Allgood’s statements to the officer would have 

corroborated [Harris’] alibi defense and permitted him to 

impeach . . . Hicks’ credibility at [Harris’] trial. Second, 

the Court finds that a new trial is also warranted because 

the evidence reflects that the prosecutor misrepresented 
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or allowed Hicks to misrepresent the nature of Hicks’ 

plea agreement during [Harris’] trial.

The district court determined the suppression of this evidence 

to be material and prejudicial.

The district court dismissed Harris’ third amended postconviction motion without prejudice pursuant to Harris IV and 

ordered him held without bail pending retrial.

Within 10 days, on September 29, 2017, the State filed a 

motion “to reconsider, alter and/or amend” pursuant to Neb. 

Rev. Stat. § 25-1329 (Reissue 2016). The State asserted that 

the new trial order was made without receiving any evidence 

or conducting an evidentiary hearing and that it was based on 

incorrect legal standards. The State requested that the order be 

amended or vacated.

As publicized and announced to the parties months before, 

on October 1, 2017, Judge Zastera retired.

3. State Attempts to Appeal; 

Appeal Dismissed

On October 23, 2017, before any ruling on its motion 

for reconsideration, the State filed a notice of appeal of the 

September 21 order for new trial. On December 11, this court 

issued an order to show cause within 10 days why the appeal 

should not be dismissed for lack of jurisdiction. The State did 

not respond and later acknowledged in a motion to extend 

brief date that it could not show cause. Harris moved to dismiss the appeal for lack of jurisdiction, and on March 28, 

2018, we did so. On April 20, our mandate was filed in the 

district court.

4. Order Ruling Motion for 

Reconsideration Moot and 

Granting Discharge

On May 1, 2018, Chief Justice Michael G. Heavican 

appointed Judge Nathan B. Cox to preside over this matter, 

replacing Judge Zastera.
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On May 10, 2018, Harris moved for absolute discharge on 

speedy trial grounds pursuant to Neb. Rev. Stat. § 29-1207 

(Reissue 2016). He also moved to dismiss the State’s motion 

for reconsideration as inapplicable to criminal cases and 

untimely filed.

On June 28, 2018, Judge Cox recused himself upon Harris’ 

motion. On July 10, Chief Justice Heavican appointed Judge 

Jodi L. Nelson to preside, and the order was filed in the district 

court on July 16.

Judge Nelson subsequently conducted a hearing on the 

pending motions. The following exchange occurred between 

counsel for the State and Judge Nelson:

[State’s counsel]: Judge, I was wondering if we could 

take up the — uh — motion for discharge first. Because 

I think some of the documents that will pertain to the 

motion to reconsider — uh — I plan to offer during that, 

as well.

If the Court — I guess — technically thought that there 

was merit to the motion for discharge, then I guess my 

motion to reconsider probably is moot. Uh, but that was 

just kind of my thought. I don’t know if —

THE COURT: Well, we’re going to hear them all today.

[State’s counsel]: Sure.

THE COURT: (Laughs.) So, how I decide them may be 

another story; but I — I think we’re going to take them 

up all today so that we can get what is pending — uh — 

taken care of. I don’t particularly care what order you 

want to do that in.

The parties proceeded to address the motion for absolute discharge first, then the motion for reconsideration.

On February 4, 2019, Judge Nelson entered an order granting Harris’ motion for absolute discharge and ruling moot the 

State’s motion for reconsideration and Harris’ motion to dismiss it. Judge Nelson determined that the State was permitted 

to file a motion for reconsideration, but did not consider the 

merits of the motion and concluded that the State had failed 
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to show that any of the days between the September 21, 2017, 

order and Harris’ motion for discharge on May 10, 2018, were 

excludable for speedy trial purposes.

5. Present Appeals

On February 8, 2019, the State filed a notice of appeal 

from the district court order entered September 21, 2017, that 

granted Harris’ motion for new trial and from the order entered 

February 4, “2018,” that sustained Harris’ motion for absolute 

discharge and found the State’s motion for reconsideration 

moot. We docketed this appeal as case No. S-19-133.

On the same date, the State filed an application for leave 

to docket exception proceedings pursuant to Neb. Rev. Stat. 

§ 29-2315.01 (Cum. Supp. 2018), which we granted.

On February 12, 2019, the district court granted the State’s 

motion to stay the February 4 discharge order pending appeal, 

“provided the State files any appeal today.”

Within 30 days of this court’s approval, on February 21, 

2019, the State filed a notice of appeal in the district court pursuant to § 29-2315.01 from the district court’s orders entered 

February 4, 2019, and September 21, 2017. We docketed this 

appeal as case No. S-19-130.

On March 11, 2019, Harris moved to dismiss both appeals, 

which we have consolidated, for lack of jurisdiction. We overruled Harris’ motions to dismiss and reserved jurisdictional 

issues until plenary submission of appeals.

The State has addressed both appeals in the same brief, with 

a single list of assigned errors.

Harris has cross-appealed.

II. ASSIGNMENTS OF ERROR

The State assigns that the district court erred in (1) sustaining Harris’ motion for new trial and not sustaining the State’s 

motion for reconsideration, (2) sustaining Harris’ motion for 

speedy trial discharge, and (3) sustaining Harris’ objection to 

the prosecutor’s affidavit at the speedy trial discharge hearing.
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On cross-appeal, Harris assigns that the district court erred 

in (1) finding that Judge Zastera’s order granting Harris’ motion 

for new trial was a final, appealable order and (2) determining 

that the State could move for reconsideration of that order and 

finding that Harris’ motion to dismiss the State’s motion for 

reconsideration was moot.

III. STANDARD OF REVIEW

[1,2] A question of jurisdiction is a question of law. State v. 

Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). Appellate courts 

independently review questions of law decided by a lower 

court. Id.

[3] The construction of a mandate issued by an appellate 

court presents a question of law, on which an appellate court is 

obligated to reach a conclusion independent of the determination reached by the court below. State v. Henk, 299 Neb. 586, 

909 N.W.2d 634 (2018).

IV. ANALYSIS

[4] As noted above, the validity of the State’s appeals is in 

question, a matter we now must decide. 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. State v. Fredrickson, 305 Neb. 165, 939 N.W.2d 385 

(2020). This case comes to us under unusual circumstances. 

The State attempts to challenge the new trial order and the 

discharge order by filing not one but two notices of appeal, 

invoking two different mechanisms for review: first, a conventional direct appeal pursuant to Neb. Rev. Stat. § 25-1912 

(Cum. Supp. 2018), which we docketed as case No. S-19-133, 

and, later, exception proceedings pursuant to § 29-2315.01, 

docketed as case No. S-19-130.

For reasons we will now explain, we conclude that the 

direct appeal conferred jurisdiction on this court as to both the 

new trial order and the discharge order, and we consider both 

orders on the merits in case No. S-19-133. Consequently, we 
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dismiss as moot the exception proceedings, docketed as case 

No. S-19-130.

1. Case No. S-19-133: Direct Appeal

(a) New Trial Order

(i) State’s Right to Direct Appeal

The first question that confronts us in this case is whether 

the State can appeal when a trial court grants a defendant’s 

motion for new trial after the time for direct appeal of a criminal conviction has expired. The statutory scheme governing 

motions for new trial in criminal cases does not speak to the 

matter, see Neb. Rev. Stat. § 29-2101 et seq. (Reissue 2016), 

and neither party has directed us to any cases in which we have 

addressed this specific issue. We are thus faced with an issue 

of first impression.

Harris contends that we need not spend much time on this 

issue, because the State is precluded from appealing by a 

well-established principle: that absent specific statutory authorization, the State generally has no right to appeal an adverse 

ruling in a criminal case. See State v. Thalken, 299 Neb. 857, 

911 N.W.2d 562 (2018). This principle bars the State’s appeal, 

Harris asserts, because the district court granted him a new 

criminal trial and the State can point to no specific statute 

authorizing an appeal. As we will explain, however, although 

the district court purported to grant Harris a new criminal trial, 

it does not follow that the new trial order itself was issued in 

a criminal case.

In a number of contexts, we have held that the State may 

mount a direct appeal to challenge adverse rulings when an 

individual convicted and sentenced for a crime collaterally 

attacks his or her conviction and sentence. We have held that 

the State may appeal in habeas corpus proceedings, postconviction proceedings, and cases arising under the DNA Testing 

Act. See, e.g., State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 

(2016) (postconviction); Meyer v. Frakes, 294 Neb. 668, 884 

N.W.2d 131 (2016) (habeas corpus); State v. Pratt, 273 Neb. 
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817, 733 N.W.2d 868 (2007) (DNA Testing Act). See, also, 

State v. Jerke, 302 Neb. 372, 923 N.W.2d 78 (2019) (reviewing 

State’s appeal from district court order granting defendant’s 

motion to vacate sentence and withdraw plea).

The foregoing proceedings are civil in nature. From the 

earliest days of our state Constitution, habeas corpus proceedings have been designated as civil, see Morrill v. Taylor, 

6 Neb. 236 (1877), and that has remained unchanged, see, 

e.g., Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 

(2016). Similarly, postconviction proceedings are termed civil 

by statute and may be appealed as provided for appeals in 

civil cases. See Neb. Rev. Stat. §§ 29-3001(2) and 29-3002 

(Reissue 2016). See, also, State v. Stewart, 242 Neb. 712, 

496 N.W.2d 524 (1993) (citing U.S. Supreme Court opinion 

for proposition that postconviction proceedings are civil). 

By analogy, we have determined proceedings under the DNA 

Testing Act are also civil in nature because, like postconviction proceedings, they too are a collateral attack on a conviction, not part of the criminal proceeding itself. See, State v. 

Pratt, supra; State v. Poe, 271 Neb. 858, 717 N.W.2d 463 

(2006). Recognizing the civil nature of proceedings under 

the DNA Testing Act and the absence of any restrictions on 

the State’s right to appeal under that act, we have held that the 

State may appeal from an adverse ruling in such a proceeding. 

See State v. Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014). As 

we will explain, the same reasoning leads us to conclude that 

the order that granted Harris’ motion for new trial based on 

newly discovered evidence was appealable by the State pursuant to § 25-1912.

Like habeas corpus proceedings, postconviction proceedings, and proceedings under the DNA Testing Act, Harris’ 

motion for new trial based on newly discovered evidence was 

a collateral attack on a final criminal judgment and not part of 

the criminal proceeding itself. When a judgment is attacked in 

a way other than by proceeding in the original action to have it 

vacated, reversed, or modified, or by a proceeding in equity to 
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prevent its enforcement, the attack is a collateral attack. State 

v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019). The framework under which Harris brought his motion for new trial fits 

this description.

Harris sought a new trial pursuant to § 29-2101(5), under 

which relief may be granted based on “newly discovered evidence material for the defendant which he or she could not 

with reasonable diligence have discovered and produced at the 

trial” and which materially affects the defendant’s substantial 

rights. A motion for new trial alleging newly discovered evidence must be filed “within a reasonable time after the discovery of the new evidence” and “cannot be filed more than 

five years after the date of the verdict, unless the motion and 

supporting documents show the new evidence could not with 

reasonable diligence have been discovered and produced at 

trial and such evidence is so substantial that a different result 

may have occurred.” § 29-2103(4). In response to a motion 

for new trial under § 29-2101(5) and following a hearing, 

a court may “vacate and set aside the judgment and release 

the person from custody or grant a new trial as appropriate.” § 29-2102(3).

Under § 29-2101(5), as in other collateral attacks, Harris 

sought to have the existing judgment vacated. Harris’ motion 

did not occur in the original criminal proceeding: Harris could 

and did move for new trial after the time for direct appeal had 

expired. Thus, like habeas corpus proceedings, postconviction 

proceedings, and proceedings under the DNA Testing Act, 

Harris’ motion for new trial based on newly discovered evidence was a collateral attack on a conviction, not part of the 

criminal proceeding itself, and therefore civil in nature. And 

like the law concerning other collateral attacks, no provision in 

the statutes governing new criminal trials restricts the State’s 

right to appeal. Accordingly, we conclude that the State has a 

right to file a direct appeal from an order granting a new trial 

in a criminal case based on newly discovered evidence after the 

time for direct appeal has expired.
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Harris asserts that motions for new trial based on newly discovered evidence under § 29-2101(5), even when filed after the 

time to challenge the conviction and sentence on direct appeal 

has passed, are more similar to other motions for new trial 

than they are to proceedings under the DNA Testing Act. He 

cites State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003), 

in which we noted the similarities between motions for new 

trial based on newly discovered evidence under § 29-2101(5) 

and those based on newly discovered DNA evidence under 

§ 29-2101(6). In Bronson, we held that these motions were 

separate and distinct from the proceedings under Neb. Rev. 

Stat. § 29-4123(2) (Reissue 2016) of the DNA Testing Act such 

that an appeal arising from a motion to vacate and set aside 

a judgment under § 29-4123(2) does not deprive a trial court 

of jurisdiction to consider a motion for new trial filed under 

§ 29-2101(6). However, we do not believe this holding makes 

motions for new trial based on newly discovered evidence any 

less collateral in nature.

Harris also disputes that motions for new trial based on 

newly discovered evidence are civil in nature. He points out 

that the Legislature has adopted separate statutes governing 

motions for new trial in civil and criminal contexts and that 

the new trial statutes in chapter 29 of the Nebraska Revised 

Statutes are written in terms reflecting its criminal law application. See, Neb. Rev. Stat. § 25-1144 et seq. (Reissue 2016); 

§ 29-2101 et seq. But the same could be said about postconviction proceedings and proceedings under the DNA Testing 

Act, and in the case of postconviction proceedings, we have 

stated that they are “not . . . ordinary civil action[s].” See State 

v. Robertson, 294 Neb. 29, 41, 881 N.W.2d 864, 875 (2016). 

Harris posits that this statement calls into question the ongoing 

validity of our previous determinations that proceedings under 

the DNA Testing Act are civil in nature. However, we disagree. 

Our holding in Robertson that civil pleading rules did not apply 

to postconviction proceedings did not make postconviction 
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proceedings or proceedings under the DNA Testing Act any 

less civil in nature.

Harris argues that even if his motion for new trial was a 

civil proceeding, once it was granted, the matter reverted to 

a criminal proceeding, from which the State could not file a 

direct appeal. To illustrate, he points out that a defendant has 

no right to counsel during a collateral attack, see State v. Pratt, 

273 Neb. 817, 733 N.W.2d 868 (2007), but does have a right 

to counsel in any new trial resulting therefrom. We agree that 

under such circumstances, any new trial following a collateral 

attack is criminal in nature, but the same is not true of the 

order granting the new trial. Indeed, in appeals involving collateral attacks, we have treated the resulting order as civil in 

nature. See, e.g., id.

Harris also relies on State v. Taylor, 179 Neb. 42, 136 

N.W.2d 179 (1965), for the proposition that there is no authority for an appellate court to reinstate a guilty verdict upon a 

State’s appeal from a new trial order and argues that therefore, 

the rights attending criminal matters should reattach. But as we 

explain in more detail in the next section, Harris misconstrues 

Taylor, an exception proceedings case in which we spoke of 

the necessity of rendering an advisory opinion, not the practicalities of reinstating a conviction such as would arise in 

this case.

Finally, Harris argues that this is not actually a case of first 

impression and that our precedent forecloses any possibility of 

review of his motion for new trial. Again, he points to State v. 

Taylor, supra, and the cases that followed it, State v. Martinez, 

198 Neb. 347, 252 N.W.2d 630 (1977), and State v. Linn, 192 

Neb. 798, 224 N.W.2d 539 (1974). In those cases, we did not 

allow the State to appeal from an order granting new trial in 

a criminal case. However, unlike the instant case, none of the 

three cases upon which Harris relies involved a judgment, 

because the appeals in those cases were filed in the original 

criminal proceedings before the defendants were sentenced. 

See State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015) 

(final judgment in criminal case means sentence).
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In Taylor, the district court sustained the defendant’s motion 

for new trial following an adverse verdict; but significantly, 

Taylor does not reflect that the defendant was sentenced 

before this ruling. The State sought review under § 29-2315.01 

(Reissue 1964), and we dismissed the State’s appeal. In doing 

so, we discussed the necessity of a final order and characterized the order in Taylor as interlocutory because further action 

was required: “It is apparent that an order setting aside a 

verdict and requiring a retrial does not dispose of the cause.” 

179 Neb. at 46, 136 N.W.2d at 182. In Linn, we applied the 

same rationale in dismissing the State’s exception proceedings challenging a new trial order that followed a defendant’s 

conviction, again with no mention of any sentence. And again, 

in Martinez, the defendant had not been sentenced for the conviction for which he was granted a new trial, and under Taylor, 

we dismissed the State’s cross-appeal in the matter for lack of a 

final order. Because Taylor, Linn, and Martinez did not involve 

a collateral attack on a final criminal judgment, they do not 

govern the State’s right to appeal the order in this case.

In sum, the State has the right to appeal an order granting a 

motion for new trial based on newly discovered evidence that 

has been filed after the time for direct appeal has expired. Yet 

our analysis of the validity of the State’s appeal of the new trial 

order is not at an end. We must next consider whether the State 

appeals from a final, appealable order.

(ii) Final, Appealable Order

[5,6] For an appellate court to acquire jurisdiction of an 

appeal, there must be a final order or final judgment entered 

by the court from which the appeal is taken. State v. Paulsen, 

304 Neb. 21, 932 N.W.2d 849 (2019). Among the three types 

of final orders which may be reviewed on appeal is an order 

affecting a substantial right made during a special proceeding. 

See Neb. Rev. Stat. § 25-1902 (Reissue 2016). For the reasons 

below, we conclude that the order granting Harris’ motion for 

new trial based on newly discovered evidence was this type of 

final order.
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[7] First, the order granting Harris’ motion for new trial 

based on newly discovered evidence was made in a special proceeding. Special proceedings entail civil statutory remedies not 

encompassed in chapter 25 of the Nebraska Revised Statutes 

and have also been described as every special statutory remedy 

which is not in itself an action. See State v. Pratt, 287 Neb. 

455, 842 N.W.2d 800 (2014). An action involves prosecuting 

the alleged rights between the parties and ends in a final judgment, whereas a special proceeding does not. State v. Loyd, 269 

Neb. 762, 696 N.W.2d 860 (2005). Where the law confers a 

right, and authorizes a special application to a court to enforce 

it, the proceeding is special, within the ordinary meaning of the 

term “special proceeding.” Id. A special proceeding is not an 

integral part of or a step in the action; it is not part of what is 

sometimes referred to as the “main case.” See State v. Vela, 272 

Neb. 287, 721 N.W.2d 631 (2006).

Under these principles, Harris’ motion for new trial initiated a special proceeding. As we have explained in the section above, Harris’ motion was civil in nature, not part of the 

criminal proceeding itself. That is, having been filed long after 

judgment, it was not part of the main case. And it bore other 

hallmarks of a special proceeding. Section 29-2101(5) confers 

a right to a new trial upon the discovery of new evidence that 

fits certain criteria and also authorizes a special application to a 

court to enforce the right. Harris’ motion requested a new trial 

and alleged facts to support the claim that a new trial was warranted. He did not seek a final judgment.

Harris argues that a motion for new trial does not fit the 

description of a special proceeding, because it is in itself an 

action. He refers to cases in which we have determined that 

the district court may exercise jurisdiction over motions for 

new trial based on § 29-2101(5) and (6) at the same time as 

this court exercises jurisdiction over a direct appeal or an 

appeal under the DNA Testing Act. See, State v. Bronson, 267 

Neb. 103, 672 N.W.2d 244 (2003); Smith v. State, 167 Neb. 

492, 93 N.W.2d 499 (1958). However, we do not understand 
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how the separate and independent nature of these types of 

proceedings could alter the character of a motion for new trial 

based on newly discovered evidence.

[8-10] Second, the order that granted Harris’ motion for new 

trial based on newly discovered evidence affected a substantial 

right of the State. Whether an order affects a substantial right 

for purposes of appeal depends on a number of factors. See 

State v. Fredrickson, 305 Neb. 165, 939 N.W.2d 385 (2020). 

The inquiry focuses on whether the right at issue is substantial 

and whether the court’s order has a substantial impact on that 

right. Id. Regarding the importance of the right affected, we 

often state that a substantial right is an essential legal right, 

not merely a technical right. See State v. Paulsen, 304 Neb. 21, 

932 N.W.2d 849 (2019). Whether an order affects a substantial 

right depends on whether it affects with finality the rights of 

the parties in the subject matter. State v. Fredrickson, supra. It 

also depends on whether the right could otherwise effectively 

be vindicated. Id. An order affects a substantial right when the 

right would be significantly undermined or irrevocably lost by 

postponing appellate review. Id.

We conclude that because the State had already obtained 

a criminal judgment, the order that granted Harris’ motion 

for new trial based on newly discovered evidence affected 

a substantial right of the State. Both this court and the U.S. 

Supreme Court have recognized the State’s interest in the 

finality of criminal judgments of conviction. See, e.g., Ramos 

v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 206 L. Ed. 2d 

583 (2020); United States v. Frady, 456 U.S. 152, 102 S. Ct. 

1584, 71 L. Ed. 2d 816 (1982); State v. Louthan, 257 Neb. 

174, 595 N.W.2d 917 (1999); State v. Lee, 251 Neb. 661, 558 

N.W.2d 571 (1997). This finality interest is premised in part 

on the significant expenditure of the State’s time and resources 

required to secure a criminal conviction. “‘“Society’s resources 

have been concentrated at [the time of trial] in order to decide, 

within the limits of human fallibility, the question of guilt or 

innocence of one of its citizens.”’” State v. Lotter, 278 Neb. 

466, 481, 771 N.W.2d 551, 563 (2009), quoting Herrera v. 
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Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 

(1993). It also rests on the fact that “with the passage of time 

and the erosion of memory and the dispersion of witnesses, 

there is no guarantee that the truth-seeking function of a new 

trial would be any more exact than the first trial.” Id. at 481, 

771 N.W.2d at 563. And courts have observed that without 

finality, the criminal law is deprived of much of its deterrent 

effect. See, e.g., McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 

1454, 113 L. Ed. 2d 517 (1991) (superseded by statute on other 

grounds as stated in Banister v. Davis, ___ U.S. ___, 140 S. Ct. 

1698, 207 L. Ed. 2d 58 (2020)).

We further determine that the order granting Harris’ motion 

for new trial had a substantial impact on the State’s right. An 

order granting new trial following a conviction significantly 

undermines the State’s interest in finality. The State cannot 

recoup the costs occasioned by a new trial, and if the defendant 

is ultimately acquitted, the State cannot lodge a direct appeal to 

seek reinstatement of the conviction. See State v. Thalken, 299 

Neb. 857, 911 N.W.2d 562 (2018) (generally, State has no right 

to appeal adverse ruling in criminal case).

At oral argument, Harris asserted that criminal new trial 

statutes do not expressly address the State’s substantial rights, 

only the defendant’s. See § 29-2101(5). While this is true, 

it does not negate the State’s substantial right as we have 

described it. Furthermore, our finding that the State has a 

substantial right in the finality of a criminal conviction, and 

therefore the ability to appeal following the grant of a new 

trial based on newly discovered evidence, does not impinge on 

a defendant’s right to seek a new trial; it only allows for the 

possibility of appellate review to ensure a grant of a new trial 

is properly ordered.

Harris claims we have previously held that an order granting a motion for new trial in a criminal case is not a final, 

appealable order. He relies on three cases mentioned above: 

State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965); State 

v. Linn, 192 Neb. 798, 224 N.W.2d 539 (1974); and State v. 

Martinez, 198 Neb. 347, 252 N.W.2d 630 (1977). In each of 
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those cases, we rejected the State’s appellate challenge of an 

order granting a motion for new trial, stating in each case that 

the order appealed from was not final and appealable. But as 

we describe in more detail in the previous section, Taylor, 

Linn, and Martinez are distinguishable from this case, partly 

because, unlike Harris’ motion for new trial, the motions for 

new trial in those cases were not collateral attacks on a final 

criminal judgment.

Taylor and Linn are further distinguishable from this case 

because they were decided under exception proceedings. In 

part, Taylor based its decision, which Linn followed, on reasoning that were it to find the new trial order in error, the 

district court could be bound by that decision. This would run 

contrary to the legislative mandate that our holdings in exception proceedings are advisory when the defendant has already 

been placed in jeopardy in the trial court. See Neb. Rev. Stat. 

§ 29-2316 (Reissue 2016). This is not a concern in the instant 

case, because we have concluded that the State may challenge 

the new trial order in its direct appeal, a review process that 

cannot result in an advisory opinion. See State v. Molina, 

271 Neb. 488, 713 N.W.2d 412 (2006) (stating that in direct 

appeal, it is not function of appellate court to render advisory opinions).

Having determined that the new trial order is a final, appealable order, we proceed to consider the remaining requirements 

of appellate jurisdiction.

(iii) Timely Perfection of Direct Appeal

As we have explained, the State appeals from a final, 

appealable order, but there is one more hurdle to clear before 

we can reach the merits of the State’s challenge to the new 

trial order. We next must assess whether the State’s direct 

appeal from the new trial order was timely perfected. We conclude that it was.

As an initial matter, we take up Harris’ position that the 

State did not fulfill two of the basic requirements to perfect 

an appeal in case No. S-19-133: a notice of appeal and a 
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docket fee. First, Harris points out that the notice of appeal 

identifies the orders appealed from as having been filed on 

September 21, 2017, and February 4, “2018.” The new trial 

order was in fact entered on September 21, 2017, but the 

discharge order was entered on February 4, 2019. However, 

this error is not fatal to the State’s appeal. Section 25-1912, 

which governs the filing of an appeal, does not require that the 

order appealed from be correctly identified to confer appellate jurisdiction. See Dominguez v. Eppley Transp. Servs., 277 

Neb. 531, 763 N.W.2d 696 (2009). Second, Harris claims that 

the record does not contain any indication that the docket fee 

for case No. S-19-133 has been paid as required to perfect an 

appeal. See, § 25-1912(1); Neb. Ct. R. App. P. § 2-101(A) (rev. 

2015). But upon an examination of our records, we are satisfied that the docket fee has been timely deposited.

With an adequate notice of appeal having been filed and 

the docket fee deposited, we need only examine whether the 

State’s notice of appeal was timely filed. See id. Generally, 

appeals must be filed within 30 days after the entry of the 

judgment, decree, or final order. § 25-1912(1). However, that 

period may be terminated by filing a motion to alter or amend 

within 10 days of the judgment. §§ 25-1329 and 25-1912(3). 

See, also, State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009). 

A new period of 30 days for filing a notice of appeal commences when the terminating motion is ordered dismissed. Id. 

Here, the State filed a valid terminating motion in the form of 

a “Motion for Reconsideration.”

Typically, a motion for reconsideration does not terminate 

the time for appeal and is considered nothing more than an 

invitation to the court to consider exercising its inherent power 

to vacate or modify its own judgment. See State v. Lotter, 301 

Neb. 125, 917 N.W.2d 850 (2018), citing Kinsey v. Colfer, 

Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000). For this reason, 

we have held that once a notice of appeal is filed, any pending 

motions to reconsider that have not been ruled upon become 

moot. See Kinsey v. Colfer, Lyons, supra. Harris asserts that 

is what happened to the State’s motion for reconsideration 
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when the State filed its initial unsuccessful appeal, which we 

dismissed for lack of jurisdiction. But Harris is mistaken, as 

we will explain.

In some contexts, a motion for reconsideration may also be 

treated as a motion to alter or amend a judgment for purposes 

of terminating the appeal period. State v. Lotter, supra. To be 

treated as a motion to alter or amend a judgment, a motion for 

reconsideration must be filed no later than 10 days after the 

entry of judgment and seek substantive alteration of the judgment. See id. See, also, State v. Gibilisco, 279 Neb. 308, 778 

N.W.2d 106 (2010).

The State’s motion for reconsideration meets the criteria to 

be treated as a terminating motion. It was filed on September 

29, 2017, less than 10 days after the new trial order was entered 

on September 21. The motion for reconsideration sought substantive alteration of the new trial order by asking that the court 

alter, amend, or vacate it because it was “based on precepts and 

legal standards reserved for Motions for Post-Conviction Relief 

and not on the requisite standards and precepts required to be 

considered, analyzed and addressed in an order granting or 

denying a Motion for New Trial.”

The State’s motion for reconsideration remained pending, 

even when the State filed its first appeal to this court, which 

we dismissed for lack of jurisdiction. Under § 25-1912(3), a 

notice of appeal filed before a pending terminating motion has 

been dismissed shall have no effect. But the terminating motion 

continues to operate until it is dismissed, even if the proponent 

attempts to appeal in the meantime. See § 25-1912(3).

With the motion for reconsideration operating as a terminating motion pursuant to § 25-1912, the State’s 30-day appeal 

period commenced when the district court dismissed the motion 

for reconsideration as moot on February 4, 2019. The State 

filed its notice of appeal in case No. S-19-133 on February 8. 

Therefore, the State’s direct appeal was timely.

Harris challenges the validity of the State’s motion for 

reconsideration as a terminating motion on two bases. First, 

he argues that such a terminating motion is reserved for civil 
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cases and thus could not serve as a terminating motion in this 

matter. Second, Harris claims that by not obtaining an earlier 

ruling, the State waived or abandoned the motion or filed it in 

bad faith. We reject both of these arguments.

In support of his first point, Harris mainly asserts that 

because the statutes relating to terminating motions are 

located in the chapter addressing civil procedure, they cannot 

apply to the new trial order arising from a motion filed under 

§ 29-2101(5), which is located in the chapter addressing criminal procedure. Like Harris’ previous arguments that the motion 

for new trial based on newly discovered evidence is not civil 

in nature, this argument also fails, and for the same reasons. 

As we have explained, such motions are civil in nature, similar to habeas corpus proceedings, postconviction proceedings, 

and proceedings under the DNA Testing Act. And we have 

previously allowed motions to alter or amend under § 25-1329 

in postconviction proceedings, including when filed by the 

State. See, State v. Gibilisco, 279 Neb. 308, 778 N.W.2d 106 

(2010) (State’s motion for reconsideration treated as motion 

to alter or amend); State v. Sims, 277 Neb. 192, 761 N.W.2d 

527 (2009) (defendant filed motion to alter or amend); State 

v. Bao, 269 Neb. 127, 690 N.W.2d 618 (2005) (defendant’s 

motion to alter or amend treated as terminating motion). While 

our postconviction statutes do specifically provide that appeals 

may be taken from the district court as provided for appeals 

in civil cases, see § 29-3002, that provision did not dissuade 

us from allowing a civil appeal path in cases involving proceedings under the DNA Testing Act, even though that statutory scheme contains no comparable provision and is located 

in chapter 29 of the Nebraska Revised Statutes. See, State v. 

Pratt, 287 Neb. 455, 842 N.W.2d 800 (2014); Neb. Rev. Stat. 

§ 29-4116 et seq. (Reissue 2016). Today, we reach the same 

conclusion regarding an order granting a motion for new trial 

based on newly discovered evidence that has been filed after 

the time for direct appeal has expired. It logically follows 

that the appeal process in this case would allow for terminating motions.
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We discern no provision of law that would preclude the 

State from filing a motion for reconsideration that operates as 

a terminating motion in this case. Indeed, we have recognized 

that “[j]udicial efficiency is served when any court . . . is given 

the opportunity to reconsider its own rulings, either to supplement its reasoning or correct its own mistakes.” See State v. 

Hausmann, 277 Neb. 819, 827, 765 N.W.2d 219, 225 (2009), 

overruled on other grounds, McEwen v. Nebraska State Coll. 

Sys., 303 Neb. 552, 931 N.W.2d 120 (2019) (statute governing 

motions to alter or amend judgment applies to judgment of district court acting as intermediate appellate court).

We are also unpersuaded by the arguments Harris makes 

in support of his position that the motion to reconsider was 

waived, was abandoned, or was pursued in bad faith. Harris 

argues that the State waived the right to rely on the motion 

for reconsideration as a terminating motion by not setting the 

matter for hearing and securing a ruling before its initial unsuccessful attempt to appeal. For support, Harris relies on State 

v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006). In Aldaco, 

the defendant filed a pro se notice of appeal after his motion 

for speedy trial discharge was orally overruled and the matter proceeded to trial. The appeal was dismissed for lack of 

jurisdiction because no file-stamped order had been entered 

by the trial court. The defendant did not seek further review. 

The trial court subsequently entered a written order, which the 

defendant appealed within 30 days. We concluded that regardless of whether the first appeal should have been dismissed, 

the 30-day period to appeal began to run after the trial court 

orally overruled the motion and proceeded to trial, and that 

the second notice of appeal was filed out of time. We do not 

understand how the holding in Aldaco warrants a waiver of the 

motion for reconsideration in this case. Aldaco did not deal 

with a terminating motion, and our jurisprudence concerning 

terminating motions does not address waiver.

Harris also asserts that the motion for reconsideration should 

have no effect because the State abandoned it by failing to 
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pursue it once it was filed. Harris relies on the proposition that 

a motion which is never called to the attention of the court is 

presumed to have been waived or abandoned by the moving 

party and that where no ruling appears to have been made on a 

motion, the presumption is, unless it otherwise appears, that the 

motion was waived or abandoned. See, ACI Worldwide Corp. 

v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 156 

(2017); Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, 

Inc., 235 Neb. 207, 454 N.W.2d 671 (1990).

Harris seems to characterize observations made by Judge 

Nelson that the State failed to obtain a hearing date in compliance with local rules as a finding that the State abandoned the 

motion for reconsideration. We do not read the discharge order 

that way, and we do not believe the State abandoned its motion 

for reconsideration. Failure to set a hearing date in accordance 

with a local rule does not invalidate a terminating motion; the 

statutes governing terminating motions do not require it. See 

Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018). 

Further, the State did bring the motion for reconsideration to 

the district court’s attention. The district court held a hearing 

on the motion before ultimately dismissing it as moot. This is 

not a case where the motion was never brought to the attention 

of the court.

Similarly, we are not convinced by Harris’ argument that 

the State’s motion for reconsideration should not operate as 

a terminating motion due to the State’s “dubious actions” or 

bad faith. See brief for appellee on cross-appeal at 83. Harris 

cites State v. Bao, 269 Neb. 127, 690 N.W.2d 618 (2005), 

where we treated the defendant’s motion for reconsideration 

as a terminating motion, even though the defendant had withdrawn it. Citing to a similar federal case, we concluded that a 

new 30-day appeal period began after the withdrawal because 

there was no indication that the terminating motion was filed 

and withdrawn in bad faith. In the present case, the State never 

withdrew its terminating motion, and we do not discern bad 

faith on the part of the State.
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In short, none of the arguments raised by Harris on this subject have merit. The State’s direct appeal in case No. S-19-133 

was timely perfected and has met the other requirements for 

our appellate jurisdiction to review the new trial order.

(iv) Merits: New Trial Order’s Noncompliance 

With This Court’s Mandate

As we have established, we have appellate jurisdiction to 

review the new trial order. Even so, Harris makes one last 

argument that we should not consider the State’s arguments 

regarding it. According to Harris, comments by the State’s 

counsel at the hearing on the State’s motion for reconsideration and Harris’ motion to discharge waived as invited error 

any opposition to the district court’s ruling that the motion for 

reconsideration was denied as moot.

At the hearing, counsel for the State, during a discussion 

about which order should be addressed first, remarked, “If the 

Court — I guess — technically thought that there was merit to 

the motion for discharge, then I guess my motion to reconsider 

probably is moot. Uh, but that was just kind of my thought. I 

don’t know if — [.]” It is true that a party cannot complain of 

error which he or she has invited the court to commit. State v. 

Dixon, 286 Neb. 157, 835 N.W.2d 643 (2013). But we do not 

consider a party’s equivocal suggestion of the possibility of an 

adverse ruling, during a discussion about the order in which 

matters would be addressed at the hearing, to be the equivalent 

of inviting error.

Turning now to the State’s arguments regarding the new trial 

order, the State contends that the new trial order was erroneous 

because the district court did not receive any evidence to support it, because the court applied the wrong standard in granting it, and because the motion for new trial is meritless. The 

State’s arguments may be correct, but we need not and, in fact, 

cannot decide them because of a more fundamental problem 

with the district court’s new trial order identified by the State: 

In granting Harris’ motion for new trial, the district court did 

not comply with our mandate in Harris V.
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[11-13] In appellate procedure, a “remand” is an appellate 

court’s order returning a proceeding to the court from which 

the appeal originated for further action in accordance with the 

remanding order. TransCanada Keystone Pipeline v. Tanderup, 

305 Neb. 493, 941 N.W.2d 145 (2020). After receiving a mandate, a trial court is without power to affect rights and duties 

outside the scope of the remand from an appellate court. Id.

When a lower court is given specific instructions on remand, 

it must comply with the specific instructions and has no discretion to deviate from the mandate. See id. To carry out its 

unqualified duty to follow the mandate issued by an appellate 

court, a lower court may not modify a judgment directed by 

an appellate court; nor may it engraft any provision on it or 

take any provision from it. State v. Payne, 298 Neb. 373, 904 

N.W.2d 275 (2017).

Guided by these principles, we turn now to the question of 

whether the district court’s new trial order was in accordance 

with the specific mandate of Harris V. Where the mandate 

incorporates the appellate court’s opinion by reference, we 

examine the opinion in conjunction with the mandate to determine how the lower court should have proceeded. See State 

v. Payne, supra. In Harris V, our mandate ordered the district 

court to “proceed to enter judgment in conformity with the 

judgment and opinion of this court.” Our opinion in Harris V

instructed the district court, upon remand, to clarify whether it 

had addressed Harris’ second postconviction motion or third 

amended postconviction motion and to apply the correct standard to Harris’ claims concerning the suppression of Allgood’s 

statements, an issue raised in both motions. Finally, we directed 

the district court to rule, if necessary, on Harris’ claims raised 

in the third amended motion for postconviction relief regarding 

Hicks’ plea agreement.

On remand, the district court clarified that its previous 

order pertained to the second postconviction motion, but its 

compliance with our mandate stopped there. After identifying 

the second postconviction motion as the subject of its previous order, the district court did not address the suppression of 
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Allgood’s statements in the context of that motion, as clearly 

directed by Harris V. Instead, it took up that analysis in the 

context of Harris’ later-filed motion for new trial. Because 

it disposed of the matter based on the motion for new trial, 

the district court dismissed the third amended postconviction 

motion without prejudice. This was not in compliance with 

our mandate.

Harris argues that the new trial order was not beyond the 

scope of our mandate in Harris V. He bases this argument 

on the premise that the motion for new trial was completely 

separate and independent from any postconviction proceedings. Harris primarily relies on Smith v. State, 167 Neb. 492, 93 

N.W.2d 499 (1958), where we held that the trial court should 

consider a motion for new trial based on newly discovered 

evidence at the same time as direct appellate review of the 

criminal conviction. We determined that the two proceedings “should be conducted separately and independently of 

each other” and that neither the Legislature nor our case law 

regarded this situation as an invasion of the appellate court’s 

jurisdiction. Id. at 494, 93 N.W.2d at 500. See, also, State v. 

Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003) (based on 

Smith, lower court had jurisdiction to consider motion for new 

trial based on newly discovered exculpatory DNA testing evidence under § 29-2101(6) (Cum. Supp. 2002) during pendency 

of appeal of denial of motion to vacate and set aside judgment 

under DNA Testing Act). Harris asserts not only that the district court was permitted by Smith to consider his motion for 

new trial separately from the postconviction issues on remand, 

but that our holding in Harris IV required the court to consider the motion for new trial first. In Harris IV we held that 

a court presented with a postconviction motion simultaneously 

with a motion seeking relief under another remedy must first 

determine whether the defendant is entitled to relief under the 

nonpostconviction remedy.

However, unlike the present case, neither Smith and its progeny nor Harris IV involved the lower court’s implementation 
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of an appellate court’s mandate on remand. In Smith, we 

observed that the trial court was not required to delay the 

exercise of its original jurisdiction to consider the motion for 

new trial because “no such restriction of power is declared” 

by the Legislature or by our jurisprudence. 167 Neb. at 494-

95, 93 N.W.2d at 501. But our mandate in the instant case 

introduced restrictions that barred the district court from considering Harris’ motion for new trial before it carried out 

our mandate.

Our mandate jurisprudence is clear: A trial court is without power to affect rights and duties outside the scope of 

the remand from an appellate court. See State v. Payne, 298 

Neb. 373, 904 N.W.2d 275 (2017). And, as noted above, 

we have consistently held that when a lower court is given 

specific instructions on remand, it must comply with the specific instructions and has no discretion to deviate from the 

mandate. TransCanada Keystone Pipeline v. Tanderup, 305 

Neb. 493, 941 N.W.2d 145 (2020). Allowing expansion of the 

issues on remand in this manner would not serve the public 

interest in finality of the litigation process. See Jurgensen v. 

Ainscow, 160 Neb. 208, 69 N.W.2d 856 (1955). We applied 

these principles in State v. Henk, 299 Neb. 586, 909 N.W.2d 

634 (2018), where our mandate required the district court to 

conduct an evidentiary hearing on a single postconviction 

claim. On remand, the district court gave the defendant leave 

to amend his motion for postconviction relief to add an additional claim, conducted an evidentiary hearing on both claims, 

and denied postconviction relief. On appeal, we held that a 

defendant cannot be allowed to assert new claims on remand 

when he or she is entitled to an evidentiary hearing on other 

claims and that the district court acted outside the scope of our 

mandate. See, also, State v. Shelly, 279 Neb. 728, 782 N.W.2d 

12 (2010). For the same reasons, the district court in this case 

was required to follow the directives of our Harris V mandate 

first, before entertaining any subsequent motions. This it did 

not do.
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As we have explained, Harris V required the district court 

to clarify whether its previous order had addressed the second 

motion or third amended motion for postconviction relief; to 

consider Allgood’s statements in the context of the postconviction motion from which Harris had appealed; and, if necessary, 

to rule on Harris’ claims raised in the third amended motion 

for postconviction relief regarding Hicks’ plea agreement. The 

district court clarified that its previous order addressed Harris’ 

second motion, but failed thereafter to comply with our mandate. It did not consider Allgood’s statements in the context of 

a postconviction motion as we directed, and it did not rule on 

Harris’ claims raised in the third amended motion for postconviction relief regarding Hicks’ plea agreement.

[14,15] Because everything in the district court’s September 

21, 2017, order, aside from the court’s clarification that its previous order addressed Harris’ second postconviction motion, 

did not comply with our mandate in Harris V, we have no 

choice but to vacate it. The district court’s subject matter jurisdiction immediately upon remand was limited to carrying out 

our mandate. See State v. Payne, supra. And “[n]o judgment or 

order different from, or in addition to, the appellate mandate 

can have any effect.” Id. at 379, 904 N.W.2d at 280. Because a 

trial court is without power to affect rights and duties outside 

the scope of the remand from an appellate court, any order 

attempting to do so is entered without jurisdiction and is void. 

Id. In breaching our mandate, the district court acted outside 

its jurisdiction and entered a void order, which we have the 

power to vacate. See In re Interest of Trey H., 281 Neb. 760, 

798 N.W.2d 607 (2011).

Based on the reasons above, we vacate the September 21, 

2017, order, with the exception of the finding that the order 

appealed from in Harris V addressed the second motion for 

postconviction relief, and remand the cause for compliance 

with this court’s mandate in Harris V. To comply with our 

mandate in Harris V and this opinion, the district court shall 

consider Harris’ postconviction claim based on Allgood’s 
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statements and the claim in his third amended motion regarding Hicks’ plea agreement. With the aforementioned exception, 

the vacated portion of the order encompasses every factual and 

legal finding made by the district court, including those pertaining to the motion for new trial; and because none of these 

vacated findings were within the district court’s subject matter 

jurisdiction to decide, they shall not operate as the law of the 

case on remand.

(b) Discharge Order

(i) State’s Right to Direct Appeal

We now turn to the order granting Harris’ motion for discharge on speedy trial grounds. As with the new trial order, we 

must first determine whether the State has the right to challenge it with a direct appeal. We conclude that it does.

As with the new trial order, Harris relies on the principle 

that absent specific statutory authorization, the State generally 

has no right to appeal an adverse ruling in a criminal case. 

Harris claims this precludes the State’s direct appeal of the 

discharge order. But whatever merit Harris’ argument might 

have if the State were appealing an ordinary order granting a 

defendant’s motion for absolute discharge, it must be recalled 

that the order that purported to grant the new trial in this case 

was void. Because a void order has no legal effect, this did 

not effectively become a criminal case, and thus the principle 

Harris invokes is inapplicable.

As we have explained, the district court was permitted to 

act within a limited scope on remand from Harris V. The only 

matter properly before the court at that time was the resolution of Harris’ postconviction claims. That is, the district court 

was conducting postconviction proceedings. Because the new 

trial order was void and had no effect, it could not effectively 

change the nature of the postconviction proceedings. We have 

allowed the State to file a direct appeal from postconviction 

proceedings. State v. Thieszen, 295 Neb. 293, 887 N.W.2d 

871 (2016). Therefore, we conclude that the discharge order is 
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reviewable on direct appeal by the State, provided it is a final, 

appealable order and is timely appealed.

(ii) Timely Appeal of Final, 

Appealable Order

As we have already said, for an appellate court to acquire 

jurisdiction of an appeal, there must be a final order or final 

judgment entered by the court from which the appeal is taken. 

State v. Paulsen, 304 Neb. 21, 932 N.W.2d 849 (2019). We 

conclude that like the new trial order, the order granting discharge is a type of final order: an order affecting a substantial 

right made during a special proceeding. See § 25-1902.

The district court purported to grant discharge in what was, 

in reality, still a postconviction proceeding. And we have long 

held that postconviction proceedings are special proceedings. 

See, State v. Thieszen, supra; State v. Silvers, 255 Neb. 702, 

587 N.W.2d 325 (1998).

Furthermore, we conclude that an order granting discharge 

on speedy trial grounds affects a substantial right of the State. 

When the State has invested the time and resources to charge 

an individual with a crime, it has an interest in the accused’s 

proceeding to trial and not being discharged improperly. See 

State v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991) 

(recognizing public interest in obtaining convictions of persons who have committed criminal offenses against State). 

Absent an appeal from the order granting discharge, this right 

of the State could not otherwise be vindicated, see State v. 

Fredrickson, 305 Neb. 165, 939 N.W.2d 385 (2020), because 

the State cannot bring the same charges again. See Neb. Rev. 

Stat. § 29-1208 (Reissue 2016) (providing for “absolute discharge from the offense charged”). Accordingly, the order 

granting discharge was a final order under § 25-1902 because it 

was made during a special proceeding and affected a substantial right of the State.

We further determine that the State timely appealed the discharge order. The discharge order was entered on February 4, 
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2019. The State filed its notice of appeal on February 8, well 

within the 30-day period prescribed by § 25-1912(1), and as 

we have already noted, the required docket fee was timely 

deposited. Thus, as to the discharge order, the State timely perfected its direct appeal.

We note that we are not persuaded by Harris’ argument that 

the discharge order is not final based on the order that granted 

the State’s request for a stay. He asserts that “to the extent 

that the February 4, 2019[,] order has stayed the implementation of Harris’ discharge past the date of filing the appeal or is 

conditioned upon the filing of an appeal, the February 4th order 

remains stayed and is not a final, appealable order.” Brief for 

appellee at 6. However, when the district court purported to 

discharge Harris, no further action was required to completely 

dispose of the cause; the order was final. Compare State v. 

Warner, 290 Neb. 954, 863 N.W.2d 196 (2015) (order sustaining defendant’s motion to quash gave State 7 days to file 

amended information; State appealed, and we determined that 

order was not final because order did not discharge defendant). 

This argument lacks merit.

(iii) Disposition of Discharge Order

Having determined that we have jurisdiction to review the 

discharge order, we now consider it. Generally, a trial court’s 

determination as to whether charges should be dismissed on 

speedy trial grounds is a factual question which will be affirmed 

on appeal unless clearly erroneous. State v. Lovvorn, 303 Neb. 

844, 932 N.W.2d 64 (2019). But in this case, as we will explain, 

there is a legal issue we must address first.

When the order granting Harris’ absolute discharge is considered in light of everything we have already said, it quickly 

becomes clear that we must vacate it. Under § 29-1207, a 

defendant may be discharged if he or she is not brought to trial 

for a charged offense within a certain time period following, 

among other things, an order for a new trial. Here, however, 

we have already concluded that the order granting the new 

trial was void. Harris cannot claim a right to discharge for not 
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being speedily tried when the order that purported to grant him 

a new trial was a nullity.

If that were not enough, the order of discharge itself 

was also outside the scope of our mandate in Harris V. As 

explained above, after receiving a mandate, a trial court is 

without power to affect rights and duties outside the scope of 

the remand from an appellate court. TransCanada Keystone 

Pipeline v. Tanderup, 305 Neb. 493, 941 N.W.2d 145 (2020). 

Even when Harris moved for absolute discharge, the district 

court was still subject to the strictures of our mandate in 

Harris V. It clearly acted outside of that mandate when, rather 

than following our instructions regarding Harris’ claims for 

postconviction relief, it purported to grant absolute discharge 

based on a new trial order that was issued outside the scope 

of our mandate. So, like the bulk of the new trial order, the 

discharge order was void. See TransCanada Keystone Pipeline 

v. Tanderup, supra.

The foregoing illustrates the error made by the district 

court when it concluded the State’s challenge to the order 

granting Harris a new trial was moot in light of its ruling on 

Harris’ motion for absolute discharge. Harris’ right to discharge 

depended on the validity of the order granting him a new 

trial. At the time of Harris’ motion for discharge, the issue of 

whether the new trial order was valid continued to exist and 

required resolution. See State v. Dunster, 278 Neb. 268, 769 

N.W.2d 401 (2009) (case becomes moot when issues initially 

presented cease to exist or when litigants seek to determine 

question which does not rest upon existing facts or rights).

For these reasons, we vacate the order that granted Harris 

absolute discharge and remand the cause with instructions to 

reinstate his convictions and sentences.

2. Case No. S-19-130: 

Exception Proceedings

Having resolved all the relevant issues presented by the parties in the appeal docketed as case No. S-19-133, we dismiss 

case No. S-19-130 as moot. See State v. Dunster, supra.
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V. CONCLUSION

Litigation regarding Harris’ convictions and sentences has 

lasted many years. And, for a number of reasons, it has 

become complex. Under these circumstances, one might wonder whether our decision today—which vacates multiple orders 

entered over the course of several years and largely returns this 

case to where it stood when we remanded it to the district court 

in 2017—contributes to advancing the matter to a resolution 

of some kind. While perhaps an understandable question, it is 

not a legally relevant one. As we have explained, the district 

court entered void orders under our law and we are obligated 

to vacate them. See DeLima v. Tsevi, 301 Neb. 933, 946, 921 

N.W.2d 89, 98 (2018) (“[s]o while it is certainly regrettable 

that the significant time and energy devoted to litigating [an 

issue] was all for naught, upon its correct determination that it 

never had subject matter jurisdiction, the district court had no 

choice but to vacate its prior custody orders”).

Accordingly, in case No. S-19-133, we vacate the district 

court’s order granting Harris a new trial and remand the 

cause for further proceedings in compliance with this decision and our mandate in Harris V. We also vacate the order 

granting absolute discharge and remand the cause with directions to reinstate Harris’ convictions and sentences. In case 

No. S-19-130, we dismiss the State’s exception proceedings as 

moot. In light of these dispositions, we need not address the 

parties’ remaining arguments.

Appeal in No. S-19-130 dismissed.

Judgment in No. S-19-133 vacated, and 

cause remanded with directions.

Heavican, C.J., and Freudenberg, J., not participating.