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304 Nebraska Reports

STATE v. PAULSEN

Cite as 304 Neb. 21

State of Nebraska, appellee, v. 

Larry Paulsen, appellant.

___ N.W.2d ___

Filed September 6, 2019. No. S-18-936.

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. 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.

3. Jurisdiction: Judgments: Words and Phrases: Appeal and Error. For 

purposes of appellate jurisdiction, a judgment is the final determination 

of the rights of the parties in an action.

4. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 

(Reissue 2016), the three types of final orders which may be reviewed 

on appeal are (1) an order affecting a substantial right in an action that, 

in effect, determines the action and prevents a judgment; (2) an order 

affecting a substantial right made during a special proceeding; and (3) 

an order affecting a substantial right made on summary application in an 

action after a judgment is rendered.

5. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 

(Reissue 2016) include those legal rights that a party is entitled to 

enforce or defend.

6. Probation and Parole: Appeal and Error. Claim-specific standards of 

review apply to an appeal of an order refusing to modify or eliminate a 

probation condition.

Appeal from the District Court for Dawson County: James

E. Doyle IV, Judge. Affirmed.

Christopher Ferdico and Erik W. Fern, of Berry Law Firm, 

for appellant.

Nebraska Supreme Court Online Library

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

09/27/2019 01:09 AM CDT
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STATE v. PAULSEN

Cite as 304 Neb. 21

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

Duffy for appellee.

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

Papik, and Freudenberg, JJ.

Per Curiam.

Over 6 months after the district court for Dawson County 

sentenced him to probation and imposed various terms thereof, 

Larry Paulsen filed a motion to modify one of those terms 

relating to possession of firearms. The district court denied 

the motion, and Paulsen has appealed. We conclude that the 

district court did not err in denying Paulsen’s motion and therefore affirm.

BACKGROUND

Conviction and Sentence.

Paulsen’s conviction in this case arose out of the district 

court’s acceptance of his plea of guilty to driving under the 

influence, second offense. The district court set forth its sentence in a journal entry filed on January 16, 2018, in which 

it stated that it was sentencing Paulsen to jail for 30 days and 

probation for 24 months “under the terms and conditions set by 

the Court.” The district court also revoked Paulsen’s driver’s 

license for 18 months and ordered him to pay a $1,000 fine. 

The district court later entered an order setting forth various 

conditions to which Paulsen would be subject during his 24 

months of probation. One of the conditions states that Paulsen 

shall not “have nor associate with anyone who has possession 

of firearms, ammunition, or illegal weapons.”

Paulsen did not appeal his conviction or sentence.

Motion to Modify Probation Order.

On August 28, 2018, Paulsen filed a motion to modify the 

terms of his probation under Neb. Rev. Stat. § 29-2263(3) 

(Reissue 2016). Paulsen asked the district court to remove the 

term of probation relating to firearms. In the motion, Paulsen 
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STATE v. PAULSEN

Cite as 304 Neb. 21

asserted that he had “always been a collector of different firearms, including mostly hunting rifles or shotguns,” that he had 

“always been in possession of those weapons in his residence,” 

but that he “recently had that room locked up by Dawson 

County Probation and the keys to the room were delivered 

to [his] counsel.” Paulsen alleged that he had no history of 

violence, that there was no evidence any of his driving under 

the influence convictions were caused by firearm ownership, 

and that there was thus no reasonable connection between 

his rehabilitation and the firearms restriction in the probation 

order. Paulsen also stated that he had not been sanctioned since 

beginning his probation term.

The State did not object to Paulsen’s motion, and consequently, the district court considered it without a hearing. In 

a written order, the district court denied Paulsen’s motion. It 

explained that the firearms restriction is part of the court’s 

usual and customary terms of probation and that it is included 

to protect the public and probation officers. The district court 

then noted that in ruling on requests to modify probation conditions, it considers whether there has been a material change 

in circumstances which arose after the entry of the probation 

order. The district court found that Paulsen had not identified 

a material change in circumstances or any other reason that 

would entitle him to the relief sought. There is no indication 

in the record that the administration of probation ceased during 

the pendency of this appeal.

Paulsen appeals the order denying modification.

ASSIGNMENT OF ERROR

Paulsen contends that the district court erred by overruling 

his motion for modification of his probation order.

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. McGuire, 301 Neb. 895, 921 N.W.2d 77 

(2018).
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STATE v. PAULSEN

Cite as 304 Neb. 21

The standard of review governing orders denying a motion 

to modify probation are discussed further in the analysis section below.

ANALYSIS

Paulsen contends that the district court erred by denying his 

request to eliminate the condition of his probation relating to 

firearms. Before we may reach that question, however, we must 

ensure we have appellate jurisdiction. See State v. Uhing, 301 

Neb. 768, 919 N.W.2d 909 (2018). We have an independent 

obligation to ensure we have appellate jurisdiction, id., and 

in this case, the State also contends appellate jurisdiction 

is lacking.

Jurisdiction.

[2,3] 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. Simms v. Friel, 

302 Neb. 1, 921 N.W.2d 369 (2019). For purposes of appellate jurisdiction, a judgment is the final determination of the 

rights of the parties in an action. State v. Thalmann, 302 Neb. 

110, 921 N.W.2d 816 (2019). In a criminal case, the judgment 

from which the appellant may appeal is the sentence. Id. Here, 

the sentencing order was entered on January 16, 2018, and 

the order setting forth the terms of Paulsen’s probation was 

entered on February 22. Paulsen did not timely appeal from 

either of those orders and therefore did not timely appeal from 

a final judgment.

[4] The jurisdictional question before us is thus whether the 

order denying Paulsen’s motion for modification of his probation terms was a final order. Under Neb. Rev. Stat. § 25-1902 

(Reissue 2016), the three types of final orders which may be 

reviewed on appeal are (1) an order affecting a substantial 

right in an action that, in effect, determines the action and 

prevents a judgment; (2) an order affecting a substantial right 

made during a special proceeding; and (3) an order affecting 

a substantial right made on summary application in an action 
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STATE v. PAULSEN

Cite as 304 Neb. 21

after a judgment is rendered. State v. Thalmann, supra. We find 

that the order from which Paulsen appeals falls into the third 

category for reasons we will explain.

Starting with the most straightforward aspect of the third 

category of final orders, the district court’s order was made 

“upon a summary application in an action after judgment.” 

See § 25-1902. We have said that an order made “upon a summary application in an action after judgment” under § 25-1902 

is “‘an order ruling on a postjudgment motion in an action.’” 

See State v. Coble, 299 Neb. 434, 438, 908 N.W.2d 646, 651 

(2018). See, also, John. P. Lenich, What’s So Special About 

Special Proceedings? Making Sense of Nebraska’s Final Order 

Statute, 80 Neb. L. Rev. 239, 313 (2001) (“only reasonable 

interpretation of the words of the statute . . . is that an order 

‘upon a summary application in an action after jugdment’ is 

an order ruling on a post-judgment motion in an action”). 

Paulsen’s motion seeking a modification of his probation terms 

plainly meets that definition.

While a more difficult question, we also find that an order 

denying a motion to modify or eliminate a probation condition 

affects a substantial right. We have identified many factors that 

define when an order affects a substantial right. Broadly, these 

factors relate to the importance of the right and the importance of the effect on the right by the order at issue. State v. 

Thalmann, 302 Neb. 110, 921 N.W.2d 816 (2019).

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, e.g., id. Also relevant to the 

importance of the right, we have stated 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. 

See id. Whether the effect of an order is substantial depends 

on whether it affects with finality the rights of the parties in 

the subject matter. Id. This aspect of affecting a substantial 

right also depends on whether the right could otherwise be 
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STATE v. PAULSEN

Cite as 304 Neb. 21

effectively vindicated. Id. An order affects a substantial right 

when the right would be significantly undermined or irrevocably lost by postponing appellate review. Id.

In order to determine whether an order denying a motion to 

modify a probation condition affects a right that is sufficiently 

important to be classified as substantial, we must consider the 

source and nature of the right asserted. Paulsen contends that 

§ 29-2263(3) confers a substantial right that was affected by 

the district court’s order denying his motion to modify. The 

text of § 29-2263(3) provides: “During the term of probation, 

the court on application of a probation officer or of the probationer . . . may modify or eliminate any of the conditions 

imposed on the probationer or add further conditions authorized by [Neb. Rev. Stat. § 29-2262 (Reissue 2016)].”

Section 29-2263(3) gives trial courts the authority to modify 

or eliminate conditions of probation “[d]uring the term of 

probation.” Because a defendant’s term of probation will not 

begin until after the sentence is pronounced, § 29-2263(3) 

creates an exception to the general rule that, once a valid 

criminal sentence has been put into execution, the trial court 

cannot modify, amend, or revise it in any way, either during 

or after the term or session of court at which the sentence was 

imposed. See, e.g., State v. Marrs, 272 Neb. 573, 723 N.W.2d 

499 (2006). In other words, while other aspects of a criminal 

sentence are quite static, § 29-2263(3) allows a court to make 

adjustments to conditions of probation as changing circumstances warrant.

Section 29-2263(3) is not so explicit about the standards 

trial courts are to apply when considering whether to modify 

or eliminate probation terms. But § 29-2263(3) is part of a 

collection of statutes dealing with probation. As we often say, 

such a collection of statutes pertaining to a single subject matter “are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, 

so that different provisions are consistent, harmonious, and 

sensible.” See State v. McGuire, 301 Neb. 895, 901, 921 
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STATE v. PAULSEN

Cite as 304 Neb. 21

N.W.2d 77, 83 (2018). And another statute in this collection of 

statutes, Neb. Rev. Stat. § 29-2262 (Reissue 2016), addresses 

the standards courts are to consider in imposing conditions 

of probation.

Section 29-2262 provides trial courts with considerable 

discretion in fashioning conditions of probation, but also provides some guidance as to what courts are to consider in doing 

so. Section 29-2262(1) directs courts sentencing an offender 

to probation to “attach such reasonable conditions as it deems 

necessary or likely to insure that the offender will lead a 

law-abiding life.” Section 29-2262(2) sets forth a number of 

specific conditions that a court may impose and also states 

that “any other conditions reasonably related to the rehabilitation of the offender” may be imposed. In addition to these 

limitations on permissible probation conditions, some probation conditions may also be subject to constitutional limitations. See, e.g., State v. Rieger, 286 Neb. 788, 839 N.W.2d 

282 (2013).

Mindful of our obligation to read § 29-2263(3) in pari 

materia with § 29-2262, we believe § 29-2263(3) is best read 

as giving a probationer the right to initiate a process where 

the sentencing court may assess whether, in light of new circumstances arising during the course of probation and within 

the bounds of constitutional limitations, conditions might reasonably be changed to better accomplish the primary goal of 

probation—“to insure that the offender will lead a law-abiding 

life.” See § 29-2262(1). In some cases, a probationer might 

demonstrate that because of changed circumstances, a probation condition is no longer appropriate. A probationer might, 

for example, demonstrate that, in light of new circumstances, 

a condition that was once “reasonably related to the rehabilitation of the offender” is no longer so. See § 29-2262(2)(r). Of 

course, the statutory ability to initiate a modification process 

is not an opportunity to collaterally attack the sentencing judgment or to reassess whether the initial conditions of probation 

were erroneous. That is the proper subject of an appeal from 
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STATE v. PAULSEN

Cite as 304 Neb. 21

the judgment of the initial sentence and must be taken within 

the time limit established by the Legislature.

[5] With this understanding of the right conferred by 

§ 29-2263(3) established, it becomes clearer that the denial of 

relief sought thereunder affects a substantial right. Substantial 

rights under § 25-1902 include those legal rights that a party 

is entitled to enforce or defend. Cattle Nat. Bank & Trust Co. 

v. Watson, 293 Neb. 943, 880 N.W.2d 906 (2016). Appellate 

courts regularly allow parties to enforce their right to not be 

subjected to probation conditions that are unauthorized by 

law at the time of sentencing. See, e.g., State v. Rieger, supra. 

We see no reason why the right to be subjected to only those 

probation terms authorized by law is any less substantial when 

sought during the term of probation. Moreover, an order denying modification or elimination of conditions affects the right 

with finality; there is no later point at which the issue could be 

effectively reviewed on appeal.

While the reasons set forth above suggest that the district 

court’s order is an order affecting a substantial right made on 

summary application in an action after judgment is rendered, 

the State contends that a different conclusion follows from the 

Nebraska Court of Appeals decision in State v. Volcek, 15 Neb. 

App. 416, 729 N.W.2d 90 (2007). We disagree.

In Volcek, a defendant was sentenced to probation with one 

of the conditions requiring the defendant to serve a term of 45 

days’ imprisonment “‘unless waived by the Court.’” 15 Neb. 

App. at 418, 729 N.W.2d at 92. The probation order required 

the term of imprisonment to begin on a specified date and set 

a hearing on that same date for the court to determine whether 

the jail term should be waived. The defendant did not appeal 

the original sentencing and probation order, but attempted to 

appeal from the trial court’s later decision not to waive the jail 

sentence. The Court of Appeals reasoned that the defendant did 

not have any substantive right to have the jail term waived, but 

that the decision was merely within the discretion of the trial 

court and was thus not appealable.
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STATE v. PAULSEN

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The State contends that like the request to waive the jail 

term in Volcek, Paulsen did not have any substantive right to 

have conditions of probation modified or eliminated. Unlike 

this case, however, the defendant in Volcek was not requesting 

that a term of probation be modified or eliminated. Instead, the 

trial court was simply presented with the question of whether, 

under the permissive language of the original probation order, 

the jail term should be waived.

We recognize that Volcek does contain a reference to the 

language of § 29-2263(3) following its conclusion that the 

decision to waive the jail term was entirely within the discretion of the trial court. This reference is somewhat cryptic, 

given that there did not appear to be a motion to modify or 

eliminate probation conditions in that case. In any event, to the 

extent Volcek suggests that § 29-2263(3) provides no standards 

by which motions brought thereunder are to be evaluated and 

leaves them solely to the unfettered and unreviewable discretion of the trial court, we disapprove for the reasons we have 

set forth above.

For these reasons, we conclude that the order denying 

Paulsen’s motion was a final, appealable order.

Merits.

Before turning to the merits of Paulsen’s appeal, we pause 

to address the standard of review. We do not appear to have 

previously addressed the standard of review governing an order 

denying a motion brought under § 29-2263(3).

[6] When probation conditions are challenged on direct 

appeal, the standard of review depends on the challenge 

asserted. In State v. Rieger, 286 Neb. 788, 839 N.W.2d 282 

(2013), we reviewed a claim that a condition of probation 

that infringed on a fundamental constitutional right was not 

sufficiently tailored to an offender’s rehabilitative process for 

an abuse of discretion. In contrast, the question of whether a 

condition of probation is authorized by statute is a question 

of law subject to de novo review. See, State v. Dinslage, 280 

Neb. 659, 789 N.W.2d 29 (2010); State v. Grimm, 240 Neb. 
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863, 484 N.W.2d 830 (1992). We hold that these same claimspecific standards of review apply to an appeal of an order 

refusing to modify or eliminate a probation condition. With 

these standards established, we proceed to consider the merits 

of Paulsen’s argument.

Paulsen offers a primary and an alternative argument that the 

district court erred by refusing to remove the firearms condition. We are not persuaded by either.

Paulsen’s primary argument is that because the firearms 

restriction affects his fundamental right to bear arms under the 

U.S. and Nebraska Constitutions, any such restriction must be 

subjected to heightened scrutiny, and that the restriction in this 

case cannot withstand such review. In support of this argument, 

Paulsen invokes Rieger, where we held that because a probation condition affected a fundamental constitutional right, the 

condition must be “narrowly tailored and reasonably related 

to the rehabilitative process.” 286 Neb. at 796, 839 N.W.2d 

at 288.

As Paulsen must acknowledge, however, he did not argue 

in the district court that the firearms restriction was subject to 

heightened scrutiny for constitutional reasons. Nor did he argue 

that because he pled to an offense that was not a felony, the 

firearms restriction should have included the “written permission by the court” language set forth in § 29-2262(2)(i). We 

have held that a court cannot err with respect to a matter not 

submitted to it for disposition and that an issue not presented 

to or passed on by the trial court is not appropriate for consideration on appeal. See Sherman T. v. Karyn N., 286 Neb. 468, 

837 N.W.2d 746 (2013). Because Paulsen did not present these 

arguments to the district court, they are not properly before us 

on appeal.

This leaves Paulsen’s alternative argument. Here, Paulsen 

contends that even if the heightened scrutiny we applied in 

Rieger does not apply, the firearms restriction is still improper 

given the crime for which probation was imposed and Paulsen’s 

lack of a history of violence.
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STATE v. PAULSEN

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Paulsen articulated the substance of this argument in the 

district court. In his motion, he alleged that he did not have 

a propensity for or history of violence, that his criminal convictions for driving under the influence did not involve firearms, that there was no connection between his rehabilitation 

and his possession of firearms, and that there was no risk to 

public safety in removing the firearms restriction. But while 

Paulsen made all of these allegations in support of his motion 

to modify, none of them arise out of circumstances that developed during the term of probation. Instead, all of these arguments for why the firearms restriction was unreasonable could 

have been made in a challenge to the firearms restriction on 

direct appeal.

The district court relied on the absence of a material change 

in circumstances as a reason for refusing to modify the firearms restriction. We do not believe the district court erred 

by doing so. As we noted recently in State v. Dill, 300 Neb. 

344, 352, 913 N.W.2d 470, 475 (2018), although § 29-2263(3) 

allows for the modification of probation conditions during the 

term of probation, objections to probation conditions “should 

be brought to the sentencing court’s attention for possible elimination or modification at the outset.” Our conclusion in Dill is 

consistent with the “fundamental principle” that “[t]he need for 

finality in the criminal process requires that a defendant bring 

all claims for relief at the first opportunity.” State v. Parnell, 

294 Neb. 551, 578, 883 N.W.2d 652, 672 (2016).

Our conclusion in Dill is also consistent with the understanding of § 29-2263(3) set forth in this opinion. As we have 

explained, we understand § 29-2263(3) to allow trial courts 

to adjust probation terms during the course of probation as 

new circumstances warrant. We do not, however, understand 

§ 29-2263(3) to allow probationers to challenge terms of probation based on arguments that could have been raised in a 

direct appeal of their sentence. If § 29-2263(3) was construed 

to allow such challenges, a party that failed to challenge a probation condition on direct appeal could file a motion to modify 
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Cite as 304 Neb. 21

and, if unsuccessful, appeal the denial of the motion to modify. 

We will not interpret § 29-2263(3) to effectively eliminate the 

deadline to appeal a criminal sentence set forth in Neb. Rev. 

Stat. § 25-1912 (Cum. Supp. 2018) in the context of challenges 

to probation conditions.

While nearly all of the allegations Paulsen made in his 

motion to modify were known to him at the time of sentencing, 

we acknowledge that Paulsen’s motion to modify also alleged 

that he had not been sanctioned during the term of his probation. We also acknowledge that Paulsen’s apparent compliance 

with his terms of probation for approximately 6 months is not 

a basis upon which Paulsen could have sought removal of the 

firearms restriction on direct appeal. Even so, our conclusion 

that the district court did not err in denying Paulsen’s motion 

to modify remains unchanged. Compliance with the terms of 

probation is the expectation for all probationers. The mere fact 

that a probationer has complied with the terms of probation for 

some period of time is not a sufficient change in circumstances 

so as to entitle a probationer to a modification of the conditions of probation.

CONCLUSION

Because we find that the district court did not err in denying Paulsen’s motion to modify the terms of his probation, 

we affirm.

Affirmed.