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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. UHING

Cite as 301 Neb. 768

State of Nebraska, appellee, v. Joshua Uhing, appell

___ N.W.2d ___

Filed November 30, 2018. No. S-18-375.

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

2. Statutes. Statutory interpretation presents a question of law.

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

questions of law decided by a lower court.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of 

whether the issue is raised by the parties.

5. Appeal and Error. Appellate courts do not generally consider arguments and theories raised for the first time on appeal.

6. Legislature: Courts: Time: Appeal and Error. When the Legislature 

fixes the time for taking an appeal, the courts have no power to extend 

the time directly or indirectly.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Appeal dismisse

Thomas C. Riley, Douglas County Public Defender, Jeanine 

Tlustos, and Lori A. Hoetger for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Funke, 

Joshua Uhing appeals the district court’s order overruling his motion to reconsider the denial of his motion to 

Nebraska Supreme Court Online Library

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

12/14/2018 08:09 AM CST
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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. UHING

Cite as 301 Neb. 768

transfer to juvenile court under Neb. Rev. Stat. § 29-1816 

(Supp. 2017). For the reasons set forth herein, we dismiss the 

appeal for lack of jurisdiction as untimely under § 29-1816(2) 

and (3)(c).

BACKGROUND

Uhing was charged in the district court with two counts of 

sexual assault in the first degree, Class II felonies, and one 

count of incest with a victim age 17 or under, a Class IIA 

felony. The alleged victims were Uhing’s sisters. Uhing was 

born in April 2000 and, on the date the charges were filed, was 

17 years old.

In October 2017, within 30 days of being charged, Uhing 

filed a motion to transfer to juvenile court. On December 15, 

the court overruled Uhing’s motion to transfer. The court’s 

order noted the significance of the charges, Uhing’s age, the 

likelihood of Uhing’s need for long-term treatment if found 

guilty, the short amount of time Uhing had before reaching 

majority, concern for public safety, and the lack of ability of 

the juvenile court to provide Uhing meaningful benefit. The 

district court thus retained Uhing’s felony charges in adult 

criminal court, and Uhing did not appeal this order.

On February 8, 2018, Uhing filed a motion captioned 

“Motion to Reconsider Denial of Defendant’s Motion to 

Transfer to Juvenile Court.” The motion did not cite the specific statutory or legal authority that provided a basis for the 

motion. Uhing alleged that in the time since the order was 

issued, he underwent an evaluation that recommended offensespecific treatment and he was accepted into a youth psychosexual center which believed Uhing could complete treatment 

prior to his 19th birthday. Uhing claimed that this information 

was unavailable prior to the hearing on the motion to transfer 

and that in the interest of justice, he should be allowed to present evidence of these factual allegations for consideration.

After a hearing on Uhing’s motion to reconsider, the court 

entered an order on March 19, 2018, overruling the motion. 

The court’s order stated:
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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. UHING

Cite as 301 Neb. 768

[Uhing] has been abused since he has been at least 

ten years old and is alleged to have been involved in 

sexual abuse of his sisters for some time. [Uhing] has significant issues of abuse and neglect, family relationship/

abandonment, mood, depression, sexual/mental health, 

and substance abuse. The program[] as set forth in the 

additional evidence is under optimal conditions and it 

does not address the need or length of the aftercare programs after the nine month to twelve-month treatment.

Based upon this additional evidence and the evidence 

offered at the initial hearing on December 8, 2017, this 

Court is still concerned that thirteen and a half months 

is not adequate time to resolve [Uhing’s] significant 

and multiple issues. As such, . . . in consideration of 

all the evidence, and the requirements pursuant to Neb. 

Rev. Stat. § 43-276, this Court still has great concern 

for public safety and the ability of a Juvenile Court to 

provide long term meaningful benefit to [Uhing] in the 

thirteen months that is remaining until his nineteenth 

birthday.

On April 9, 2018, Uhing appealed the order overruling 

his motion to reconsider. Uhing’s notice of appeal stated: 

“This appeal stems from the Order overruling the Motion 

to Reconsider. Said Order is dated March 19, 2018 and this 

appeal is filed pursuant to LB11 which went into effect March 

29, 2017.” Uhing asserts this court has jurisdiction to consider 

the district court’s order on the motion to reconsider, because 

the underlying order on the motion to transfer was a final, 

appealable order.

The State, in turn, argues this court lacks jurisdiction of 

the motion to reconsider, because the motion is not a final, 

appealable order. The State asserts that a rule which treats 

as a final, appealable order any order overruling a motion to 

reconsider an order on a motion to transfer is overly broad and 

would undermine appellate deadlines. We granted a petition to 

bypass submitted by the State.
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STATE v. UHING

Cite as 301 Neb. 768

ASSIGNMENTS OF ERROR

Uhing assigns, restated, that the district court abused its 

discretion in overruling his motion to reconsider the court’s 

denial of his motion to transfer to juvenile court, because the 

State failed to meet its burden to show a sound basis for retaining Uhing’s case in district court.

STANDARD OF REVIEW

[1-3] A question of jurisdiction is a question of law.1

Statutory interpretation presents a question of law.2 Appellate 

courts independently review questions of law decided by a 

lower court.3

ANALYSIS

[4] Before reaching the legal issues presented for review, 

it is the power and duty of an appellate court to determine 

whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.4

[5] Uhing argues that the denial of a motion to reconsider 

is a final, appealable order.5 In support of this argument, 

Uhing contends, for the first time on appeal, that his motion 

to reconsider was brought under Neb. Rev. Stat. § 25-2001 

(Reissue 2016). However, there is nothing in the record indicating Uhing ever presented this theory to the district court. 

Appellate courts do not generally consider arguments and 

theories raised for the first time on appeal.6

1 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017).

2 Id.

3 Id.

4 Id.

5 See Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 721 

(2010).

6 State ex rel. Rhiley v. Nebraska State Patrol, ante p. 241, 917 N.W.2d 903 

(2018).
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301 Nebraska Report

STATE v. UHING

Cite as 301 Neb. 768

Section 29-1816(2) provides alleged juvenile offenders the 

ability to move for a transfer of their case from a county or 

district court to a juvenile court. This motion must be made 

within 30 days after arraignment “unless otherwise permitted 

by the court for good cause shown.”7 Uhing apparently chose 

not to attempt to make this showing of good cause and, thus, is 

left only with taking an appeal.

Section 29-1816(3)(c) provides the procedure for appealing 

an order on a motion to transfer and states:

An order granting or denying transfer of the case from 

county or district court to juvenile court shall be considered a final order for the purposes of appeal. Upon 

entry of an order, any party may appeal to the Court of 

Appeals within ten days. Such review shall be advanced 

on the court docket without an extension of time granted 

to any party except upon a showing of exceptional cause. 

Appeals shall be submitted, assigned, and scheduled for 

oral argument as soon as the appellee’s brief is due to be 

filed. The Court of Appeals shall conduct its review in 

an expedited manner and shall render the judgment and 

opinion, if any, as speedily as possible.

Summarized, subsections (2) and (3)(c) of § 29-1816 provide that an alleged juvenile offender can move for transfer to 

juvenile court within 30 days of the juvenile’s arraignment and 

that either the juvenile or the State can appeal an order on the 

motion within 10 days of its entry. This procedure is in contrast 

to the typical appeal process in which a party has 30 days from 

the entry of a judgment or final order to appeal the decision 

of a district court unless a party has filed a timely terminating motion.8

In previous appeals of a denial of a motion to transfer to 

juvenile court, we have held that a trial court’s denial of the 

7 § 29-1816(2).

8 See Neb. Rev. Stat. § 25-1912 (Supp. 2017).
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STATE v. UHING

Cite as 301 Neb. 768

motion was not a final, appealable order.9 In response to our 

decision in State v. Bluett,

10 the Nebraska Legislature amended 

§ 29-1816 to include the language that “[a]n order granting or 

denying transfer of the case from county or district court to 

juvenile court shall be considered a final order for the purposes 

of appeal” and to impose the 10-day limitation of the time to 

file the appeal. The Legislature, however, did not include language that filing a motion to reconsider would terminate the 

appeal period.

Here, Uhing filed the underlying motion to transfer within 

30 days of his arraignment. However, he failed to appeal 

the order denying this motion within the 10 days required 

by § 29-1816(3)(c). Therefore, we lack jurisdiction to consider any subsequent appeal of the order on Uhing’s motion 

to transfer.

[6] Uhing’s motion for reconsideration does not cure this 

jurisdictional deficiency. Allowing the appeal of Uhing’s 

motion to reconsider would have the effect of extending the 

time for filing the original appeal. But when the Legislature 

fixes the time for taking an appeal, the courts have no power 

to extend the time directly or indirectly.11 Because the motion 

to reconsider did not extend the time for appeal, which had 

run 10 days after the transfer motion was denied, we lack 

jurisdiction to consider this appeal.

CONCLUSION

For the reasons stated above, we dismiss the appeal for lack 

of jurisdiction.

Appeal dismissed

9 See State v. Bluett, 295 Neb. 369, 889 N.W.2d 83 (2016).

10 Id.

11 State v. Lotter, ante p. 125, 917 N.W.2d 850 (2018).