- 879 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

State of Nebraska, appellant, v. 

Maylesha S. Lewis, appellee.

___ N.W.2d ___

Filed March 24, 2023. No. S-22-324.

1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law.

2. Evidence: Appeal and Error. On a question of law, an appellate court 

reaches a conclusion independent of the court below.

3. Double Jeopardy. The Double Jeopardy Clauses of the U.S. and 

Nebraska Constitutions are coextensive and protect against three distinct 

abuses: (1) a second prosecution for the same offense after acquittal, 

(2) a second prosecution for the same offense after conviction, and (3) 

multiple punishments for the same offense.

4. ____. Double jeopardy principles do not bar a successive prosecution in 

those situations where the State was unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain 

that charge had not yet occurred at the time of the prosecution for the 

first offense.

5. Double Jeopardy: Appeal and Error. In exception proceedings, application of Neb. Rev. Stat. § 29-2316 (Reissue 2016), by its terms, turns 

on whether the defendant has been placed in jeopardy in the trial court, 

not on whether the Double Jeopardy Clause bars further action.

6. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, legal jeopardy attaches (1) in a case tried to a jury, when the jury is impaneled and 

sworn; (2) when a judge, hearing a case without a jury, begins to hear 

evidence as to the guilt of the defendant; or (3) at the time the trial court 

accepts the defendant’s guilty plea.

Appeal from the District Court for Douglas County: Peter 

C. Bataillon, Judge. Exception sustained, order reversed, and 

cause remanded for further proceedings.

Nebraska Supreme Court Online Library

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

03/24/2023 09:06 AM CDT
- 880 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

Ryan Lindberg, Deputy Douglas County Attorney, and 

Hannah Henry and Zachary Severson, Senior Certified Law 

Students, for appellant.

Thomas C. Riley, Douglas County Public Defender, and 

Jessica C. West for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

Maylesha S. Lewis was convicted and sentenced for driving under the influence resulting in serious bodily injury 1 after 

crashing into a light pole and injuring her passenger. The passenger later died from injuries sustained in the collision, and 

Lewis was charged with motor vehicle homicide while operating a vehicle under the influence. 2 Lewis filed a plea in bar 

to the subsequent charge, asserting she was being prosecuted 

a second time for the same offense in violation of her double 

jeopardy rights. The district court agreed and dismissed the 

subsequent prosecution.

The State filed this exception proceeding assigning error 

to the district court’s double jeopardy analysis. We sustain 

the exception, reverse the order granting the plea in bar, and 

remand the cause for further proceedings.

I. BACKGROUND

On October 11, 2020, Lewis was operating a vehicle in 

Omaha, Nebraska, when she left the roadway and collided 

with a light pole. A passenger in Lewis’ vehicle, Thomas 

Martin, was severely injured in the collision. Lewis admitted she had consumed alcohol and smoked marijuana before 

1 See Neb. Rev. Stat. § 60-6,198 (Reissue 2021).

2 See Neb. Rev. Stat. § 28-306(3)(b) (Reissue 2016).
- 881 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

the collision. Chemical testing after the collision showed her 

blood alcohol content was well above the legal limit.

1. 2020 Prosecution

A few days after the October 11, 2020, collision, Lewis was 

charged with the Class IIIA felony offense of driving under 

the influence resulting in serious bodily injury, in violation of 

§ 60-6,198. For ease of reference, this opinion refers to the 

offense as “DUI/serious bodily injury.” Lewis initially entered 

a plea of not guilty, but later pled guilty to the offense as 

charged. At the change of plea hearing, the State’s factual basis 

recited that Martin had been transported from the collision 

scene with “life-threatening” injuries and remained hospitalized in a coma. The court accepted Lewis’ guilty plea and set 

the matter for sentencing.

On March 22, 2021, Lewis was sentenced to a 30-month 

term of incarceration followed by 18 months of post-release 

supervision, as well as a 5-year license revocation with the 

option of obtaining an “interlock” device. On the date Lewis 

was sentenced, Martin remained hospitalized in a persistent 

vegetative state.

Martin died several months later. For purposes of this appeal, 

the parties do not dispute that he died as a result of injuries 

sustained in the October 11, 2020, collision.

2. 2021 Prosecution

On December 20, 2021, the State charged Lewis with the 

Class IIA felony offense of motor vehicle homicide in violation of § 28-306(3)(b). The information was filed directly in 

the district court and alleged that on October 11, 2020, Lewis 

caused the death of Martin while engaged in the unlawful 

operation of a motor vehicle while under the influence in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2021). For ease of 

reference, this opinion refers to the charged offense as “motor 

vehicle homicide/DUI.”
- 882 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

At arraignment, Lewis filed a plea in bar alleging the 

subsequent prosecution was barred by the Double Jeopardy 

Clause of the U.S. and Nebraska Constitutions. The court 

conducted an evidentiary hearing on the plea in bar and 

received exhibits, including (1) police reports regarding the 

October 11, 2020, collision; (2) certified copies of the criminal informations filed in the 2020 and 2021 prosecutions; and 

(3) a certified transcript of the change of plea hearing and the 

sentencing hearing in the prior prosecution for DUI/serious 

bodily injury.

In an order entered March 30, 2022, the district court sustained Lewis’ plea in bar. It applied the test from Blockburger 

v. United States 3 and concluded that, for double jeopardy 

purposes, the crimes of DUI/serious bodily injury and motor 

vehicle homicide/DUI were the “same offense.” More specifically, the court concluded the crime of DUI/serious bodily 

injury was a lesser-included offense of motor vehicle homicide/

DUI, reasoning it would be impossible to cause death without 

simultaneously causing serious bodily injury. The court thus 

concluded that the offense of motor vehicle homicide/DUI did 

not require proof of a fact the offense of DUI/serious bodily 

injury did not and that the second prosecution was barred by 

double jeopardy under the Blockburger test.

The court granted the State’s request for leave to docket 

exception proceedings pursuant to Neb. Rev. Stat. § 29-2315.01 

(Cum. Supp. 2022), and the State filed a timely notice of 

appeal. We granted the State’s petition to bypass the Nebraska 

Court of Appeals.

II. ASSIGMENTS OF ERROR

The State assigns, consolidated and restated, that the district court erred in (1) applying the Blockburger 4 test to 

3 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 

(1932).

4 See id.
- 883 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

analyze Lewis’ double jeopardy claim and (2) granting the 

plea in bar.

III. STANDARD OF REVIEW

[1,2] Issues regarding the grant or denial of a plea in bar 

are questions of law. 5 On a question of law, an appellate court 

reaches a conclusion independent of the court below. 6

IV. ANALYSIS

1. Double Jeopardy

The Fifth Amendment to the U.S. Constitution provides 

in relevant part that no person shall be “subject for the same 

offence to be twice put in jeopardy of life or limb.” Similarly, 

article I, § 12, of the Nebraska constitution provides, “No person shall be . . . twice put in jeopardy for the same offense.”

[3] We have recognized that the Double Jeopardy Clauses 

of the U.S. and Nebraska Constitutions are coextensive and 

protect against three distinct abuses: (1) a second prosecution 

for the same offense after acquittal, (2) a second prosecution 

for the same offense after conviction, and (3) multiple punishments for the same offense. 7

Lewis’ plea in bar claims the charge of motor vehicle homicide/DUI is a second prosecution for the same offense after 

conviction. In other words, she contends that her 2020 conviction for DUI/serious bodily injury and her 2021 prosecution 

for motor vehicle homicide/DUI are the “same offense” for 

purposes of the prohibition against double jeopardy.

Lewis contends the district court correctly analyzed her 

double jeopardy claim using the test announced by the U.S. 

5 State v. Bedolla, 298 Neb. 736, 905 N.W.2d 629 (2018); State v. Lavalleur, 

298 Neb. 237, 903 N.W.2d 464 (2017).

6 Id.

7 See, Blockburger, supra note 3; State v. Sierra, 305 Neb. 249, 939 N.W.2d 

808 (2020); State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
- 884 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

Supreme Court in Blockburger. 8 One of the State’s arguments 

on appeal is that instead of Blockburger, the district court 

should have applied the double jeopardy framework from the 

U.S. Supreme Court case of Diaz v. United States. 9 To consider these arguments, we summarize pertinent holdings from 

both cases.

(a) Blockburger

In Blockburger, the Court held that “where the same act 

or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether 

there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 10

Courts generally apply the Blockburger “same elements” 

test whether the double jeopardy claim asserted is multiple 

punishment for the same offense or successive prosecution 

for the same offense. 11 As stated, the district court here 

applied the Blockburger test and concluded the crime of DUI/

serious bodily injury was the same offense as the crime of 

motor vehicle homicide/DUI; thus, the 2021 prosecution was 

barred by double jeopardy.

The State argues that the test from Blockburger is not applicable here for two reasons. First, it contends the Legislature 

intended to treat DUI/serious bodily injury and motor 

8 See Blockburger, supra note 3.

9 Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912).

10 Blockburger, supra note 3, 284 U.S. at 304.

11 See, Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 

(1977) (“[i]f two offenses are the same under [Blockburger] for purposes 

of barring consecutive sentences at a single trial, they necessarily will 

be the same for purposes of barring successive prosecutions”). Accord, 

Winkler, supra note 7 (applying Blockburger test to successive prosecution 

claim); State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011) (applying 

Blockburger test to cumulative punishment claim).
- 885 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

vehicle homicide/DUI as separate offenses 12 because the statutes defining such crimes expressly provide: “The crime punishable under this section shall be treated as a separate and distinct offense from any other offense arising out of acts alleged 

to have been committed while the person was in violation of 

this section.” 13 Alternatively, the State argues the appropriate 

double jeopardy analysis is found in the U.S. Supreme Court’s 

opinion in Diaz,

 14 not Blockburger. The State also argues that 

even if Blockburger provides the proper test, the district court’s 

Blockburger reasoning was flawed.

Although the parties devote much of their appellate briefing to whether, under the Blockburger test, the crime of DUI/

serious bodily injury is a lesser-included offense of motor 

vehicle homicide/DUI, we do not find it necessary to address 

that question. 15 Instead, on the circumstances of this case, 

we agree the double jeopardy framework from Diaz governs 

our analysis.

12 See, e.g., Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 

85 L. Ed. 2d 764 (1985) (plurality disregards Blockburger in successive 

prosecution case and holds “[w]here the same conduct violates two 

statutory provisions, the first step in the double jeopardy analysis is to 

determine whether the legislature—in this case Congress—intended that 

each violation be a separate offense”); Albernaz v. United States, 450 

U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981) (treating Blockburger

as method to ascertain legislative intent when nothing more concrete 

is available). Accord Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. 

Ct. 673, 74 L. Ed. 2d 535 (1983) (stating where “legislature specifically 

authorizes cumulative punishment under two statutes, regardless of 

whether those two statutes proscribe the ‘same’ offense under Blockburger, 

a court’s task of statutory construction is at an end”).

13 § 28-306(4); § 60-6,198(4).

14 See Diaz, supra note 9.

15 See State v. Huston, 298 Neb. 323, 903 N.W.2d 907 (2017) (appellate 

court not obligated to engage in analysis not necessary to adjudicate case 

and controversy before it).
- 886 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

(b) Diaz

In Diaz, the defendant physically attacked the victim and 

was convicted and sentenced for misdemeanor assault and battery. The victim later died from his injuries, and the defendant 

was then prosecuted for homicide. After filing an unsuccessful 

plea in bar asserting the successive prosecution was barred 

by double jeopardy, the defendant was convicted and sentenced for homicide. He appealed to the Supreme Court of the 

Philippines, where the conviction was affirmed.

The U.S. Supreme Court, applying a provision in federal law 

which it had previously construed to extend to the Philippines 

the same protection against double jeopardy as afforded by the 

U.S. Constitution, 16 concluded the homicide prosecution was 

not barred by double jeopardy. It reasoned:

The homicide charged against the accused in the Court 

of First Instance and the assault and battery for which he 

was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both 

in law and in fact. The death of the injured person was 

the principal element of the homicide, but was no part 

of the assault and battery. At the time of the trial for the 

latter the death had not ensued, and not until it did ensue 

was the homicide committed. Then, and not before, was it 

possible to put the accused in jeopardy for that offense. . 

. . It follows that the plea of former jeopardy disclosed no 

obstacle to the prosecution for homicide. 17

Diaz was decided before Blockburger, but the Court has 

regularly described Diaz as an exception to the general double jeopardy rule forbidding successive prosecution for a 

greater offense after prosecuting a lesser-included offense. 

16 See Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421, 55 L. Ed. 489 

(1911), citing Kepner v. United States, 195 U.S. 100, 24 S. Ct. 797, 49 L. 

Ed. 114 (1904).

17 Diaz, supra note 9, 223 U.S. at 448-49.
- 887 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

For instance, in Brown v. Ohio,

 18 the Supreme Court recited 

the general rule that the Double Jeopardy Clause forbids successive prosecution and cumulative punishment for the same 

offense, but added a footnote citing Diaz for the proposition 

that “[a]n exception may exist where the State is unable to 

proceed on the more serious charge at the outset because 

the additional facts necessary to sustain that charge have not 

occurred or have not been discovered despite the exercise of 

due diligence.” 19 Similarly, in Jeffers v. United States,

 20 the 

Supreme Court cited Diaz for the proposition that the general 

double jeopardy rule “does have some exceptions” and “[o]ne 

commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the 

prosecution for the lesser is begun.”

Several legal commentators also describe Diaz as an exception to the general rule forbidding successive prosecution for 

a greater offense after prosecuting a lesser-included offense. 21

One treatise cites Diaz for the following proposition:

18 Brown, supra note 11.

19 Id., 432 U.S. at 169, n.7.

20 Jeffers v. United States, 432 U.S. 137, 151, 97 S. Ct. 2207, 53 L. Ed. 2d 

168 (1977). See, also, Blackledge v. Perry, 417 U.S. 21, 29, n.7, 94 S. Ct. 

2098, 40 L. Ed. 2d 628 (1974) (“[t]his would clearly be a different case if 

the State had shown that it was impossible to proceed on the more serious 

charge at the outset, as in Diaz. . . . Obviously, it would not have been 

possible for the authorities in Diaz to have originally proceeded against 

the defendant on the more serious charge, since the crime of homicide was 

not complete until after the victim’s death”).

21 See, 5 Wayne R. LaFave et al., Criminal Procedure § 17.4(b) (4th ed. 

(2015)); 2 Nancy Hollander et al., Wharton’s Criminal Procedure § 11:7 

(14th ed. (2017)) (double jeopardy does not bar successive prosecution 

where State unable to proceed on more serious charge at outset because 

facts necessary to sustain that charge have not occurred). See, also, 

22A C.J.S. Criminal Procedure and Rights of Accused § 650 (2016) 

(double jeopardy not implicated where fact necessary for prosecution of 

subsequent offense had not occurred at time of first prosecution).
- 888 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

Even though the general double jeopardy rule bars 

separate criminal prosecutions for the same offense, one 

exception that exists is for those situations where the 

State is unable to proceed on the more serious charge 

at the outset because the additional facts necessary to 

sustain that charge have not yet occurred or have not 

been discovered despite the exercise of due diligence. 

In those circumstances, the courts permit a successive prosecution. 22

Consistent with these authorities, other state and federal 

courts have applied Diaz to factual circumstances very similar 

to the one before us and found no double jeopardy violation. 23

These courts generally hold that double jeopardy principles 

do not bar a subsequent prosecution when the State was 

unable to proceed on the more serious charge at the outset 

because the additional facts necessary to sustain that charge 

22 2 Hollander et al., supra note 21, § 11:7 at 11-59 to 11-60 (internal 

quotation marks omitted).

23 See, Mitchell v. Cody, 783 F.2d 669 (6th Cir. 1986) (convictions for 

driving while intoxicated and disregarding stop sign before victim died 

no bar to subsequent charge of unlawful killing in operation of motor 

vehicle); State v. Hutchinson, 156 N.H. 790, 942 A.2d 1289 (2008) 

(double jeopardy no bar to prosecution for murder after attempted murder 

conviction before victim died); People v. Scott, 15 Cal. 4th 1188, 939 

P.2d 354, 65 Cal. Rptr. 2d 240 (1997) (prior conviction of rape and 

attempted murder no bar to murder prosecution when victim died in 

interim); People v. Harding, 443 Mich. 693, 506 N.W.2d 482 (1993) (prior 

conviction of armed robbery and assault with intent to murder no bar to 

felony murder prosecution where victim died in interim), abrogated on 

other grounds, People v. Ream, 481 Mich. 223, 750 N.W.2d 536 (2008); 

Hinton v. District Court of Oklahoma County, 693 P.2d 1277 (Okla. Crim. 

1984) (prior child abuse conviction no bar to murder prosecution where 

child died in interim), overruled on other grounds, White v. State, ex rel. 

Hopper, 821 P.2d 378 (Okla. Crim. 1991); State v. Mitchell, 682 S.W.2d 

918 (Tenn. 1984) (conviction for traffic offenses no bar to motor vehicle 

homicide prosecution where victim died in interim).
- 889 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

had not yet occurred at the time of the prosecution for the 

first offense. 24

[4] We now join those jurisdictions applying the Diaz exception and hold that double jeopardy principles do not bar a 

successive prosecution in those situations where the State was 

unable to proceed on the more serious charge at the outset 

because the additional facts necessary to sustain that charge 

had not yet occurred at the time of the prosecution for the 

first offense.

The Diaz exception applies here. At the time Lewis was 

charged and convicted for DUI/serious bodily injury, Martin 

was seriously injured but still alive. Because Martin’s death 

was a necessary element of the offense of motor vehicle homicide/DUI, the State was not able to bring the more serious 

charge at the time it prosecuted Lewis for DUI/serious bodily 

injury. Under Diaz, double jeopardy permits the State to prosecute Lewis for the more serious offense of motor vehicle homicide/DUI, despite having previously convicted her of DUI/

serious bodily injury.

We thus conclude the district court erred in granting Lewis’ 

plea in bar, and we sustain the State’s exception. We turn next 

to the effect of this decision.

2. Effect of Decision in 

Exception Proceeding

This appeal was brought by the State pursuant to § 29-2315.01, 

which authorizes the prosecuting attorney to “take exception to 

any ruling or decision of the court made during the prosecution of a cause” by following a specific procedure. Our record 

shows the statutory procedure was followed here, and Lewis 

does not contend otherwise.

But in exception proceedings, not every decision of the 

appellate court can affect the defendant. According to Neb. 

Rev. Stat. § 29-2316 (Reissue 2016):

24 See id.
- 890 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

The judgment of the court in any action taken pursuant to section 29-2315.01 shall not be reversed nor in 

any manner affected when the defendant in the trial court 

has been placed legally in jeopardy, but in such cases the 

decision of the appellate court shall determine the law 

to govern in any similar case which may be pending at 

the time the decision is rendered or which may thereafter arise in the state. When the decision of the appellate 

court establishes that the final order of the trial court was 

erroneous and the defendant had not been placed legally 

in jeopardy prior to the entry of such erroneous order, the 

trial court may upon application of the prosecuting attorney issue its warrant for the rearrest of the defendant and 

the cause against him or her shall thereupon proceed in 

accordance with the law as determined by the decision of 

the appellate court.

[5,6] We have explained that application of § 29-2316, by 

its terms, turns on whether the defendant has been placed 

in jeopardy in the trial court, not on whether the Double 

Jeopardy Clause bars further action. 25 In Nebraska, jeopardy 

attaches (1) in a case tried to a jury, when the jury is impaneled and sworn; (2) when a judge, hearing a case without a 

jury, begins to hear evidence as to the guilt of the defendant; or (3) at the time the trial court accepts the defendant’s 

guilty plea. 26

Here, exception proceedings followed from an order granting Lewis’ plea in bar. As such, none of the events triggering 

legal jeopardy have yet occurred. Because jeopardy has not 

yet attached, 27 we sustain the State’s exception, and we also 

reverse the order granting the plea in bar and remand the cause 

for further proceedings.

25 State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).

26 Id. 

27 See id. (holding defendant not placed in jeopardy when exception taken 

from district court order sustaining motion to quash).
- 891 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. LEWIS

Cite as 313 Neb. 879

V. CONCLUSION

Pursuant to the Diaz exception, double jeopardy principles 

do not bar a successive prosecution in those situations where 

the State was unable to proceed on the more serious charge at 

the outset because the additional facts necessary to sustain that 

charge had not yet occurred. Because it was not possible for 

the State to have charged Lewis with motor vehicle homicide/

DUI at the time she was being prosecuted for DUI/serious 

bodily injury, Diaz applies and the successive prosecution here 

does not violate double jeopardy.

We therefore sustain the State’s exception, reverse the order 

granting the plea in bar, and remand the cause for further 

proceedings.

Exception sustained, order reversed, and 

cause remanded for further proceedings.