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DUGAN v. STATE

Cite as 297 Neb. 444

Michael Marvin Dugan, appellant, v. 

State of Nebraska et al., appellees.

___ N.W.2d ___

Filed August 11, 2017. No. S-16-421.

1. Actions: Habeas Corpus: Collateral Attack: Appeal and Error. As 

only a void judgment is subject to attack in a habeas corpus action, an 

appellate court is limited in such a case to reviewing a question of law, 

namely, Is the judgment in question void?

2. Judgments: Appeal and Error. To the extent questions of law are 

involved, an appellate court is obligated to reach conclusions independent of the decisions reached by the court below.

3. Habeas Corpus: Judgments: Convictions: Collateral Attack. Habeas 

corpus is a proper means of collaterally attacking the validity of an 

allegedly void judgment of conviction.

4. Judgments: Jurisdiction: Final Orders: Appeal and Error. An appeal 

is not perfected and an appellate court acquires no jurisdiction unless the 

appellant has satisfied the statutory requirements for appellate jurisdiction by appealing from a final order or a judgment.

5. Final Orders: Appeal and Error. An order is final for purposes of 

appeal under Neb. Rev. Stat. § 25-1902 (Reissue 2016) if it affects a 

substantial right and (1) determines the action and prevents a judgment, 

(2) is made during a special proceeding, or (3) is made on summary 

application in an action after judgment is rendered.

6. Criminal Law: Pretrial Procedure: Appeal and Error. Generally, for 

a pretrial order in criminal cases to be immediately appealable, it must 

involve a right not to be tried as opposed to a right not to be convicted.

7. Final Orders: Pleadings. How a motion should be regarded for purposes of determining whether its denial is a final order depends upon the 

substance of the motion and not its title.

8. Arrests: Extradition and Detainer: Trial. The unlawfulness of the 

means of arrest or extradition from another state does not impair the 

power of a court to try an accused.

Nebraska Supreme Court Online Library

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

09/01/2017 01:13 AM CDT
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DUGAN v. STATE

Cite as 297 Neb. 444

Appeal from the District Court for Lancaster County: Steven

D. Burns, Judge. Affirmed.

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellees.

Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and

Funke, JJ.

Wright, J.

NATURE OF CASE

Trial proceeded while the defendant’s appeal from the 

denial of his motion for absolute discharge was pending with 

the Nebraska Court of Appeals. The motion was based on 

the allegations that the defendant’s arrest warrant was defective and that his extradition was procedurally improper. After 

the defendant was convicted and sentenced, the appeal from 

the denial of the motion for absolute discharge was voluntarily dismissed. The conviction and sentence were affirmed 

on direct appeal. In his action for habeas corpus relief, the 

defendant now claims that the trial court lacked jurisdiction 

to continue with his trial while his appeal from the denial of 

the motion for absolute discharge was pending. He therefore 

asserts that his conviction and sentence are void.

BACKGROUND

Underlying Charges

Michael Marvin Dugan was arrested in Wyoming under 

what the sheriff’s department believed to be a valid Nebraska 

warrant, but the warrant was not issued until after Dugan 

was taken into custody. Dugan waived extradition and was 

returned to Nebraska. In July 2006, Dugan was charged in the 

district court for Cheyenne County (the trial court) with one 

count of theft by unlawful taking.
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DUGAN v. STATE

Cite as 297 Neb. 444

Excessive Bail Appeal

Dugan moved to reduce his bail pending trial, alleging it 

was excessive. The motion was overruled. On May 25, 2007, 

Dugan appealed the denial of his motion to reduce his bail to 

the Court of Appeals.

On June 21, 2007, the Court of Appeals dismissed the 

appeal for lack of jurisdiction, explaining that under State v. 

Kula,

1 the order appealed from was not final. The mandate of 

dismissal issued on July 27 and was filed with the trial court 

on August 2.2

Federal Habeas Action

On June 26, 2007, Dugan filed an application for a writ 

of habeas corpus in the U.S. District Court for the District 

of Nebraska. The application alleged that his arrest warrant 

was defective and that he was extradited without proper procedure. Dugan further alleged that his bail was excessive and 

that the trial court had erred in refusing to stay the criminal 

proceedings pending his appeal of the allegedly excessive 

bail. Dugan asked the federal district court to stay his trial 

and determine the legality of his restraint, as well as to fix a 

reasonable bail.

Absolute Discharge Motion

and Appeal

While the federal habeas action was still pending, Dugan 

filed with the trial court a motion for absolute discharge 

for violation of his constitutional rights. Dugan alleged 

that his arrest warrant was defective and that his extradition was procedurally improper. The trial court denied the 

motion, and on October 3, 2007, Dugan appealed to the Court 

of Appeals.

1 State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).

2 See State v. Dugan, 15 Neb. App. lxxxix (No. A-07-584, June 21, 2007).
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DUGAN v. STATE

Cite as 297 Neb. 444

Trial Verdict

Trial proceeded while Dugan’s federal habeas action and his 

appeal to the Court of Appeals from the denial of his motion 

for absolute discharge were pending. Dugan was found guilty 

on October 5, 2007, and was sentenced as a habitual criminal 

on December 14. He was committed to the Department of 

Correctional Services on December 17.

Voluntary Dismissal of Absolute

Discharge Appeal

On January 10, 2008, Dugan filed a stipulation jointly with 

the State to dismiss his appeal to the Court of Appeals of the 

district court’s denial of his motion for absolute discharge, for 

the reason that it was interlocutory. The mandate of dismissal 

issued on January 16.

Direct Appeal

On direct appeal from his conviction and sentence, Dugan 

presented 23 assignments of error. They included allegations 

that he was illegally arrested and improperly extradited. The 

Court of Appeals affirmed the conviction and sentence. With 

regard to the arrest and extradition, the Court of Appeals 

stated that considerations as to the method of obtaining jurisdiction over a criminal defendant were not relevant to the 

power of a court to try an accused. We denied Dugan’s petition 

for further review.

State Habeas Action

After his direct appeal was unsuccessful, Dugan filed an 

application in the district court for Lancaster County for a writ 

of habeas corpus. Dugan alleged that his conviction and sentence were void because his trial had occurred while the court 

was divested of jurisdiction due to the pendency of his appeals 

from the denial of his motion for discharge and from the denial 

of his motion to reduce excessive bail.
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DUGAN v. STATE

Cite as 297 Neb. 444

The court dismissed with prejudice Dugan’s application for 

a writ of habeas corpus relief. As to the court’s jurisdiction 

during the pendency of the bail appeal, the court reasoned 

that because the Court of Appeals never acquired jurisdiction over the interlocutory appeal of the nonfinal order, the 

trial court never lost jurisdiction. As to the court’s jurisdiction during the pendency of the absolute discharge appeal, 

the court similarly said that the arrest and extradition issues 

presented in the absolute discharge motion did not affect a 

substantial right. Therefore, the order was not final and the 

interlocutory appeal therefrom did not deprive the trial court 

of jurisdiction.

Dugan appeals the dismissal of his habeas action.

ASSIGNMENTS OF ERROR

Dugan assigns that the district court erred in denying 

habeas corpus relief because (1) his sentence is void because 

the trial court tried, convicted, and sentenced him during the 

pendency of an appeal that divested the trial court of jurisdiction and (2) the Court of Appeals erred in citing the wrongly 

decided case State v. Kula and failed to properly exercise its 

jurisdiction to hear Dugan’s appeal from the trial court’s order 

denying his motion to reduce excessive bail.

STANDARD OF REVIEW

[1] As only a void judgment is subject to attack in a habeas 

corpus action, an appellate court is limited in such a case to 

reviewing a question of law, namely, Is the judgment in question void?3

[2] To the extent questions of law are involved, an appellate court is obligated to reach conclusions independent of the 

decisions reached by the court below.4

3 Garza v. Kenney, 264 Neb. 146, 646 N.W.2d 579 (2002).

4 Id.
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DUGAN v. STATE

Cite as 297 Neb. 444

ANALYSIS

Before we moved the case to our docket, the Court of 

Appeals summarily rejected Dugan’s second assignment of 

error, that he was entitled to habeas corpus relief because the 

trial court was divested of jurisdiction during the pendency of 

his appeal from the motion to reduce bail. We also summarily 

reject Dugan’s second assignment of error. We next address 

Dugan’s assignment of error that he was entitled to habeas 

corpus relief because the trial court lacked jurisdiction during 

the pendency of his appeal from the denial of his motion for 

absolute discharge.

[3] Habeas corpus is a proper means of collaterally attacking the validity of an allegedly void judgment of conviction.5

Nebraska case law generally holds that once an appeal has 

been perfected, the trial court is divested of its jurisdiction 

to hear a case involving the same matter between the same 

parties.6 And with the exception of limited acts of continuing 

jurisdiction not applicable here, all proceedings in the district 

court while a perfected appeal is pending are void for lack 

of jurisdiction.7

[4] But an appeal is not perfected and an appellate court 

acquires no jurisdiction unless the appellant has satisfied the 

statutory requirements for appellate jurisdiction by appealing from a final order or a judgment.8

 In a criminal case, the 

5 See, Bradley v. Hopkins, 246 Neb. 646, 522 N.W.2d 394 (1994); Neb. Rev. 

Stat. § 29-2801 (Reissue 2008).

6 In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).

7 See, State v. Rieger, 257 Neb. 826, 600 N.W.2d 831 (1999); State v. 

Moore, 186 Neb. 71, 180 N.W.2d 888 (1970); Jenkins v. Campbell, 76 

Neb. 138, 107 N.W. 221 (1906). Compare, e.g., Spady v. Spady, 284 Neb. 

885, 824 N.W.2d 366 (2012).

8 See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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judgment is the sentence.9 The question here is whether the 

trial court’s denial of Dugan’s motion for absolute discharge 

was a final order.

[5] An order is final for purposes of appeal under Neb. Rev. 

Stat. § 25-1902 (Reissue 2016) if it affects a substantial right 

and (1) determines the action and prevents a judgment, (2) is 

made during a special proceeding, or (3) is made on summary 

application in an action after judgment is rendered.10

Numerous factors determine when an order affects a substantial right for purposes of appeal.11 Broadly, these factors 

relate to the importance of the right and the importance of the 

effect on the right by the order at issue.12 It is not enough that 

the right itself be substantial; the effect of the order on that 

right must also be substantial.13

We have said that an order affects a substantial right if it 

affects the subject matter of the litigation, such as diminishing 

a claim or defense that was available to the appellant prior to 

the order from which he or she is appealing.14 We have also 

said that in order for the order to have a substantial effect on 

the substantial right, it is fundamental that the right is significantly undermined or irrevocably lost by postponing appellate review.15

9 State v. Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009). See, also, State v. 

Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).

10 Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 

467 (2017).

11 In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).

12 Id.

13 Id.

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

15 See id. See, also, e.g., In re Interest of Sandrino T., 295 Neb. 270, 888 

N.W.2d 371 (2016).
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Though Dugan characterized his motion as a motion for 

absolute discharge, motions for absolute discharge are made 

on speedy trial grounds.16 Section Neb. Rev. Stat. § 29-1208 

(Reissue 2008) mandates:

If a defendant is not brought to trial before the running of the time for trial as provided for in [the speedy 

trial act] . . . he or she shall be entitled to his or her 

absolute discharge from the offense charged and for 

any other offense required by law to be joined with 

that offense.

We have held that to the extent Nebraska’s speedy trial 

statutes17 confer a right to a speedy trial and authorize a special application to obtain judicial enforcement of that right, 

a ruling on a motion for absolute discharge based upon an 

accused criminal’s nonfrivolous claim that his or her speedy 

trial rights were violated is a ruling affecting a substantial right made during a special proceeding and is therefore 

final and appealable.18 We have reasoned that the ruling on 

16 See, e.g., State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014); State 

v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013); State v. Williams, 277 

Neb. 133, 761 N.W.2d 514 (2009); State v. Feldhacker, 267 Neb. 145, 

672 N.W.2d 627 (2004); State v. Knudtson, 262 Neb. 917, 636 N.W.2d 

379 (2001); State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997); State 

v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991); State v. Alvarez, 189 

Neb. 281, 202 N.W.2d 604 (1972); State v. Johnson, 22 Neb. App. 747, 

860 N.W.2d 222 (2015); State v. Vela-Montes, 19 Neb. App. 378, 807 

N.W.2d 544 (2011); State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41 

(2008); State v. Vasquez, 16 Neb. App. 406, 744 N.W.2d 500 (2008); In re 

Interest of Britny S., 11 Neb. App. 704, 659 N.W.2d 831 (2003); State v. 

Castillo, 11 Neb. App. 622, 657 N.W.2d 650 (2003); State v. Washington, 

11 Neb. App. 598, 658 N.W.2d 302 (2003); State v. Hayes, 10 Neb. App. 

833, 639 N.W.2d 418 (2002); State v. Dailey, 10 Neb. App. 793, 639 

N.W.2d 141 (2002).

17 Neb. Rev. Stat. §§ 29-1201 to 29-1209 (Reissue 2008).

18 See, State v. Williams, supra note 16; State v. Jacques, 253 Neb. 247, 570 

N.W.2d 331 (1997); State v. Gibbs, supra note 16.
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a motion to discharge affects a substantial right, because 

the rights conferred on an accused criminal by §§ 29-1207 

and 29-1208 would be significantly undermined if appellate 

review of nonfrivolous speedy trial claims were postponed 

until after conviction and sentence. We have compared this to 

the manner in which rights of an accused criminal would be 

undermined if appellate review of the denial of a plea in bar 

in double jeopardy claims were postponed until after conviction and sentence.19

[6] We have explained that both involve a right not to be 

tried.20 This is in line with federal decisions that generally hold 

in criminal cases that in order for a pretrial order to be immediately appealable, it must involve a right not to be tried as 

opposed to a right not to be convicted.21

We have also noted that an interlocutory appeal based 

on a claimed denial of statutory speedy trial rights involves 

a relatively simple mathematical computation of whether 

the 6-month speedy trial clock, as extended by statutorily 

excludable periods, has expired prior to the commencement 

of trial.22

[7] Dugan’s motion for absolute discharge based on the 

alleged unlawfulness of his arrest and extradition bears no 

resemblance to a motion for absolute discharge based on the 

statutory right to a speedy trial. How a motion should be 

regarded for purposes of determining whether its denial is a 

final order depends upon the substance of the motion and not 

its title.23

19 Id.

20 See State v. Williams, supra note 16.

21 See, e.g., Flanagan v. United States, 465 U.S. 259, 104 S. Ct. 1051, 79 L. 

Ed. 2d 288 (1984); U.S. v. Saccoccia, 18 F.3d 795 (9th Cir. 1994).

22 See State v. Williams, supra note 16.

23 See State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
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In State v. Loyd,

24 we held that the denial of the defendant’s 

motion to quash based on a statute of limitations defense, 

which the defendant had styled as a “‘motion to discharge,’” 

was not a final order. We explained that the denial of that 

motion did not diminish a defense previously available to him, 

because he could continue to challenge through his not guilty 

plea the sufficiency of the evidence to prove that the charges 

were filed within the period specified by the applicable statute 

of limitations.25

[8] Similarly, we will not treat this motion as one for absolute discharge simply because of its title. And, as the Court of 

Appeals discussed in its opinion on direct appeal, the allegations in Dugan’s motion could not legally support absolute 

discharge. The unlawfulness of the means of arrest or extradition from another state does not impair the power of a court 

to try an accused.26 The allegations of unlawful arrest and 

extradition do not involve a right not to be tried.

Rather, the illegality of an arrest gives rise only to “collateral” rights and remedies in the underlying criminal action, 

such as the exclusionary rule.27 Those collateral rights and 

remedies are effectively vindicated on appeal from the judgment.28 Other rights at issue in an allegedly unlawful arrest 

24 Id. at 770, 696 N.W.2d at 868.

25 See State v. Loyd, supra note 23. See, also, State v. Nuss, 235 Neb. 107, 

454 N.W.2d 482 (1990).

26 See, State v. Tingle, 239 Neb. 558, 477 N.W.2d 544 (1991); State v. Smith, 

207 Neb. 263, 298 N.W.2d 162 (1980); State v. Knudsen, 201 Neb. 584, 

270 N.W.2d 926 (1978); State v. Costello, 199 Neb. 43, 256 N.W.2d 97 

(1977); Maddox v. Sigler, 181 Neb. 690, 150 N.W.2d 251 (1967); Jackson 

v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946). See, also, Pettibone v. 

Nichols, 203 U.S. 192, 27 S. Ct. 111, 51 L. Ed. 148 (1906); Mahon v. 

Justice, 127 U.S. 700, 8 S. Ct. 1204, 32 L. Ed. 283 (1888).

27 State v. Masat, 239 Neb. 849, 852, 479 N.W.2d 131, 133 (1992).

28 See cases cited supra note 26.
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or extradition may be vindicated through a civil rights action 

under 42 U.S.C. § 1983 (2012).29

Simply put, the trial court’s ruling pertaining to the allegations of unlawful arrest and extradition in Dugan’s motion 

for absolute discharge did not affect the subject matter of the 

underlying criminal litigation. As such, the district court’s 

order did not affect a substantial right. The order, therefore, 

was not final, and Dugan’s interlocutory appeal therefrom 

did not deprive the trial court of jurisdiction to proceed with 

Dugan’s trial, conviction, and sentencing.

The district court correctly denied Dugan’s application for 

a writ of habeas corpus relief. We find no merit to Dugan’s 

contention that the underlying criminal judgment against him 

was void. Because the trial court’s denial of his motion for 

absolute discharge was not a final order, the trial court was 

not divested of jurisdiction when Dugan filed this interlocutory appeal.

CONCLUSION

For the foregoing reasons, the judgment of the district court 

is affirmed.

Affirmed.

Cassel, J., participating on briefs.

29 See, Annot., 45 A.L.R. Fed. 871 (1979); Annot., 1 A.L.R. Fed. 519 (1969).