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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. WEATHERS

Cite as 30 Neb. App. 189

State of Nebraska, appellee, v. 

Brandon J. Weathers, 

appellant.

___ N.W.2d ___

Filed September 21, 2021. No. A-21-108.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. ____: ____. Before reaching the merits of the legal issue presented for 

review, an appellate court must determine whether it has jurisdiction 

over the matter.

3. ____: ____. Appellate courts have an independent obligation to ensure 

they have appellate jurisdiction.

4. Constitutional Law: Postconviction: Collateral Attack: Final Orders.

The Nebraska Postconviction Act is the primary procedure for bringing 

collateral attacks on final judgments in criminal cases based upon constitutional principles.

5. Postconviction: Collateral Attack. If a defendant has a collateral attack 

that could be asserted under the Nebraska Postconviction Act, that act is 

his or her sole remedy.

Appeal from the District Court for Douglas County: Shelly 

R. Stratman, Judge. Appeal dismissed.

Brandon J. Weathers, pro se.

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

Klein for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Nebraska Supreme Court Online Library

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

09/28/2021 08:10 AM CDT
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. WEATHERS

Cite as 30 Neb. App. 189

Riedmann, Judge.

INTRODUCTION

Brandon J. Weathers appeals the order of the district court 

for Douglas County, which denied his motion to vacate his 

convictions and sentences. Finding that the district court lacked 

jurisdiction over Weathers’ motion, we dismiss the appeal.

BACKGROUND

Weathers was convicted of two felony charges in 2015. This 

court affirmed his convictions and sentences on direct appeal. 

See State v. Weathers, No. A-16-305, 2017 WL 24777 (Neb. 

App. Jan. 3, 2017) (selected for posting to court website). 

Thereafter, he filed a motion for postconviction relief, which the 

district court denied, and we affirmed that decision on appeal. 

See State v. Weathers, No. A-18-483, 2019 WL 1375345 (Neb. 

App. Mar. 26, 2019) (selected for posting to court website).

In January 2021, Weathers filed a pro se “Motion to Vacate 

Sentences and Conviction” in the original criminal case filed in 

the district court. The motion states that it was filed pursuant to 

“Neb.Rev.Stat. [§] 25-2001 et seq. [(Reissue 2016)]” and seeks 

to vacate Weathers’ convictions and sentences due to a violation of his Sixth Amendment right to counsel.

No hearing was held on the motion, and the State did not 

respond. The district court entered an order detailing the history of the case in that Weathers’ convictions and sentences 

were affirmed on direct appeal and that the denial of his postconviction motion was also affirmed on appeal. The court’s 

order indicates it also denied a second motion for postconviction relief that Weathers had filed in September 2020 and a 

motion to alter or amend that he filed in October 2020. The 

court therefore denied the present pleading and its accompanying motion to proceed in forma pauperis as frivolous. 

Weathers appeals.

ASSIGNMENT OF ERROR

Weathers assigns that the district court erred in denying his 

motion to vacate.
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. WEATHERS

Cite as 30 Neb. App. 189

STANDARD OF REVIEW

[1] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law. State v. Reames, 308 Neb. 361, 953 N.W.2d 807 (2021).

ANALYSIS

[2,3] Before reaching the merits of the legal issue presented 

for review, we must determine whether we have jurisdiction 

over this matter. See id. Appellate courts have an independent 

obligation to ensure they have appellate jurisdiction. See id.

Weathers seeks to have vacated his criminal convictions 

and sentences. Although the district court and the State treated 

Weathers’ motion as a successive motion for postconviction 

relief, Weathers makes clear that he filed his motion to vacate 

under § 25-2001 and not under the postconviction statutes. 

Section 25-2001 provides the manner in which a court in a 

civil action may vacate a judgment within the same term it was 

entered or out of term on certain grounds.

Despite Weathers’ attempt to invoke § 25-2001, under the 

facts of this case, the postconviction statutes offer the sole 

remedy for collaterally attacking his final convictions and sentences. In State v. Smith, 288 Neb. 797, 851 N.W.2d 665 (2014), 

the defendant was convicted of kidnapping and sentenced to 

life imprisonment in 1983. In 2013, he filed a pro se “‘Motion 

to Correct Illegal, Unconstitutional and Void Sentence,’” alleging that his sentence was illegal, unconstitutional, and void 

under a recent U.S. Supreme Court decision. State v. Smith, 

288 Neb. at 798-99, 851 N.W.2d at 667. The district court 

found that it lacked jurisdiction over the defendant’s motion 

because it was not brought pursuant to a recognized procedure 

under Nebraska law and because the sentence was valid and 

could not be modified, amended, or revised.

[4,5] On appeal, the Nebraska Supreme Court observed that 

the defendant had not brought the action under the Nebraska 

Postconviction Act, Neb. Rev. Stat. §§ 29-3001 to 29-3004 

(Reissue 2016) (the Act), and that he acknowledged that such 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. WEATHERS

Cite as 30 Neb. App. 189

a claim would be time barred under § 29-3001(4). Rather, the 

defendant sought relief under a purported common-law remedy 

providing that a void judgment may be attacked at any time 

in any proceeding. The Supreme Court rejected this argument, 

finding that the Act is the primary procedure for bringing collateral attacks on final judgments in criminal cases based upon 

constitutional principles and that if a defendant has a collateral 

attack that could be asserted under the Act, that the Act is his 

or her sole remedy. See State v. Smith, supra. The Supreme 

Court noted that the defendant could have asserted his claim 

under the Act, but failed to do so within the time limits prescribed by the Legislature. It therefore concluded that the district court did not err in determining that it lacked jurisdiction 

to consider the defendant’s motion and in dismissing it without 

reaching its merit. And because the district court lacked jurisdiction, the Supreme Court similarly lacked jurisdiction, and it 

therefore dismissed the appeal.

Likewise, here, Weathers is clear that he did not bring his 

motion to vacate under the Act, but instead, he attempts to 

bring it under § 25-2001, a statute allowing for the vacation 

of a judgment in a civil action. The basis for Weathers’ motion 

is that he represented himself at trial and now alleges that the 

district court did not advise him of his Sixth Amendment right 

to counsel. This constitutional basis for his motion brings it 

within the purview of the Act; therefore, the Act is his sole 

remedy for collaterally attacking his final convictions and sentences. As such, the district court lacked jurisdiction over his 

motion. See, also, State v. Dunster, 270 Neb. 773, 707 N.W.2d 

412 (2005) (finding that court lacked jurisdiction over motion 

to vacate death sentence when not brought under postconviction statutes). Because the district court lacked jurisdiction, so, 

too, do we. We therefore dismiss the appeal.

CONCLUSION

We dismiss the appeal for lack of jurisdiction.

Appeal dismissed.