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STATE v. LOTTER

Cite as 301 Neb. 125

State of Nebraska, appellee, v. 

John L. Lotter, appellant.

___ N.W.2d ___

Filed September 28, 2018. Nos. S-17-325, S-17-338, 

S-17-339, S-17-1126, S-17-1127, S-17-1129.

1. Judgments: Jurisdiction: Appeal and Error. Determination of a jurisdictional issue which does not involve a factual dispute is a matter of 

law which requires an appellate court to reach its conclusions independent from a trial court.

2. Postconviction: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When 

reviewing a question of law, an appellate court resolves the question 

independently of the lower court’s conclusion.

3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court 

to acquire jurisdiction of an appeal, there must be a final judgment or 

final order entered by the tribunal from which the appeal is taken.

4. Postconviction: Final Orders. Within a postconviction proceeding, 

an order granting an evidentiary hearing on some issues and denying 

a hearing on others is a final, appealable order as to the claims denied 

without a hearing.

5. Postconviction: Appeal and Error. An order denying a postconviction claim is appealable even when the court reserves ruling on other 

claims.

6. Postconviction: Final Orders. An order overruling a motion for postconviction relief as to a claim is a “final judgment” as to such claim 

under Neb. Rev. Stat. § 29-3002 (Reissue 2016).

7. Judgments: Final Orders: Time: Appeal and Error. 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 motion which terminates the appeal period.

8. Pleadings: Judgments: Appeal and Error. A motion for reconsideration is the functional equivalent of a motion to alter or amend a 

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judgment, which terminates the period in which a party must file a 

notice of appeal.

9. Pleadings: Judgments: Time: Appeal and Error. In cases involving 

a motion to alter or amend a judgment, a critical factor is whether the 

motion was filed within 10 days of the final order, because a timely 

motion terminates the time for filing a notice of appeal.

10. Courts: Judgments: Time: Appeal and Error. A motion for reconsideration does not terminate the time for appeal and is considered nothing 

more than an invitation to the court to consider exercising its inherent 

power to vacate or modify its own judgment.

11. Rules of the Supreme Court: Postconviction. Postconviction proceedings are not governed by the Nebraska Court Rules of Pleading in 

Civil Cases.

12. Pleadings: Time: Appeal and Error. An untimely motion to alter or 

amend does not terminate the time for perfection of an appeal and does 

not extend or suspend the time limit for filing a notice of appeal.

13. 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.

14. Postconviction: Pleadings: Final Orders: Appeal and Error. An 

order ruling on a motion filed in a pending postconviction case seeking 

to amend the postconviction motion to assert additional claims is not a 

final judgment and is not appealable under Neb. Rev. Stat. § 29-3002 

(Reissue 2016).

15. Final Orders: Time: Appeal and Error. To trigger the savings clause 

for premature notices of appeal under Neb. Rev. Stat. § 25-1912(2) 

(Reissue 2016), an announcement must pertain to a decision or order 

that, once entered, would be final and appealable.

16. Postconviction: Pleadings: Time. The Nebraska Postconviction Act 

contains a 1-year time limit for filing a verified motion for postconviction relief, which runs from one of four triggering events or August 27, 

2011, whichever is later.

17. Sentences. Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 

2d 504 (2016), merely applied Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 

2428, 153 L. Ed. 2d 556 (2002), and did not set forth a new rule of law 

for sentencing.

18. Constitutional Law: Courts. Constitutional rights are not defined by 

inferences from opinions which did not address the question at issue.

19. Sentences: Time: Appeal and Error. Ring v. Arizona, 536 U.S. 584, 

122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), announced a new procedural rule that does not apply retroactively to cases already final on 

direct review.
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Appeals from the District Court for Richardson County: 

Daniel E. Bryan, Jr., Judge, Retired, and Vicky L. Johnson, 

Judge. Appeals in Nos. S-17-325, S-17-338, and S-17-339 

dismissed. Judgment and final order in Nos. S-17-1126, 

S-17-1127, and S-17-1129 affirmed.

Timothy S. Noerrlinger, of Naylor & Rappl, and Rebecca E. 

Woodman for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith 

for appellee.

Brian William Stull, of American Civil Liberties Union 

Foundation, and Amy A. Miller, of American Civil Liberties 

Union of Nebraska Foundation, for amici curiae American 

Civil Liberties Union Capital Punishment Project and American 

Civil Liberties Union of Nebraska Foundation.

Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and

Bishop and Welch, Judges.

Cassel, J.

I. INTRODUCTION

In identical, successive postconviction motions filed in 

three cases, John L. Lotter sought relief based on a 2016 

U.S. Supreme Court decision1 and on a death qualification 

issue. In separate orders filed months apart, the district court 

denied relief on each issue. Because Lotter did not timely 

appeal the denials of the death qualification issue, we lack 

jurisdiction over those appeals. We affirm the denials of the 

other claim as time barred, because the decision he relies 

upon is not a “newly recognized right [that] has been made 

applicable retroactively to cases on postconviction collateral review.”2

1 Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).

2 Neb. Rev. Stat. § 29-3001(4)(d) (Reissue 2016).
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II. BACKGROUND

1. Convictions and Sentencing

Lotter’s crimes are well known, and the underlying facts 

are set forth in our decision on Lotter’s direct appeal.3 In three 

separate cases against Lotter which were consolidated for trial, 

a jury convicted him of several crimes, including three counts 

of first degree murder. In accordance with the laws in effect at 

the time of his trial, a three-judge panel convened in February 

1996 to determine whether Lotter should be sentenced to 

death. The panel found the applicability of three aggravating 

circumstances beyond a reasonable doubt and imposed the 

death penalty.

A criminal conviction is final for purposes of collateral 

review when the judgment of conviction is rendered, the 

availability of appeal is exhausted, and the time for petition 

for certiorari has lapsed.4 Lotter’s convictions became final 

in 1999.5

2. Key U.S. Supreme Court

Sixth Amendment Cases

(a) Apprendi v. New Jersey

In 2000, the U.S. Supreme Court decided Apprendi v. New 

Jersey,

6

 a landmark decision with respect to Sixth Amendment 

jurisprudence. In that case, a hate crime statute authorized an 

increase in the prescribed statutory maximum sentence based 

on a judge’s finding by a preponderance of the evidence that 

the defendant acted with purpose to intimidate the victim 

3 See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified on 

denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999).

4 State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003) (superseded in part 

by statute as stated in State v. Harris, 292 Neb. 186, 871 N.W.2d 762 

(2015)).

5 See id.

6 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 

(2000).
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based on the particular circumstances of the victim. The trial 

judge concluded that the defendant had been motivated by 

racial bias, and in accordance with the statute, the judge 

increased the defendant’s sentence.

The Apprendi Court addressed whether a judge, rather than 

a jury, could find facts that increased the defendant’s maximum sentence. The Court determined that the statute violated 

the Due Process Clause of the 14th Amendment and the 6th 

Amendment right to trial by jury. It declared:

Other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and 

proved beyond a reasonable doubt. With that exception, 

we endorse the statement of the rule set forth in the concurring opinions in that case: “[I]t is unconstitutional for 

a legislature to remove from the jury the assessment of 

facts that increase the prescribed range of penalties to 

which a criminal defendant is exposed. It is equally clear 

that such facts must be established by proof beyond a 

reasonable doubt.”7

(b) Ring v. Arizona

Two years after Apprendi, the U.S. Supreme Court decided 

Ring v. Arizona.

8 Ring applied the Apprendi rule to capital 

sentencing schemes and determined that capital defendants are 

entitled to a jury determination of any fact that would increase 

the possible maximum punishment. The Court held, “Because 

Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ . . . the 

Sixth Amendment requires that they be found by a jury.”9 Ring

7 Id., 530 U.S. at 490 (quoting Jones v. United States, 526 U.S. 227, 119 S. 

Ct. 1215, 143 L. Ed. 2d 311 (1999) (Stevens, J., concurring) (Scalia, J., 

concurring)).

8 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

9 Id., 536 U.S. at 609.
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explicitly overruled one of its prior cases “to the extent that 

it allows a sentencing judge, sitting without a jury, to find 

an aggravating circumstance necessary for imposition of the 

death penalty.”10

(c) Hurst v. Florida

On January 12, 2016, the U.S. Supreme Court filed its decision in Hurst v. Florida.

11 In that case, the Court considered 

the constitutionality of Florida’s capital sentencing scheme in 

light of Ring. Under Florida law, a jury renders an “‘advisory 

sentence’” of life or death without specifying a factual basis 

for its recommendation and then the court, notwithstanding 

the jury’s recommendation, weighs the aggravating and mitigating circumstances and enters a sentence of life imprisonment or death.12 Thus, the trial court alone makes the findings 

necessary for imposition of a death sentence—that “‘sufficient 

aggravating circumstances exist’” and that “‘there are insufficient mitigating circumstances to outweigh the aggravating 

circumstances.’”13 In holding the sentencing scheme unconstitutional, the Court declared that “[t]he Sixth Amendment 

requires a jury, not a judge, to find each fact necessary to 

impose a sentence of death.”14 The Hurst Court stated that 

“Florida’s sentencing scheme, which required the judge alone 

to find the existence of an aggravating circumstance, is therefore unconstitutional.”15

3. Nebraska’s Capital

Sentencing Scheme

At the time of Lotter’s convictions and sentences, Nebraska 

law provided that after a defendant was found guilty of first 

10 Id.

11 Hurst v. Florida, supra note 1.

12 Id., 136 S. Ct. at 620.

13 Id., 136 S. Ct. at 622.

14 Id., 136 S. Ct. at 619.

15 Id., 136 S. Ct. at 624.
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degree murder, a trial judge or a three-judge panel determined 

whether statutory aggravating circumstances existed.16 If such 

circumstances existed, the defendant faced a maximum penalty of death.17 If aggravating circumstances did not exist, the 

defendant faced a maximum penalty of life imprisonment. Ring

invalidated this procedure.

In response to Ring, the Nebraska Legislature enacted L.B. 

1,18 which amended Nebraska’s capital sentencing statutes. The 

new law required that a jury determine the existence of aggravating circumstances, unless a jury is waived by the defendant.19 It specifically stated that each aggravating circumstance 

needed to be proved by the State beyond a reasonable doubt.20

If the jury rendered a verdict finding the existence of one or 

more aggravating circumstances, a panel of three judges would 

determine the sentence.21 The panel of judges was to consider 

whether the aggravating circumstances as determined to exist 

justified imposition of a death sentence, whether mitigating circumstances existed which approached or exceeded the weight 

given to the aggravating circumstances, or whether the sentence of death was excessive or disproportionate to the penalty 

imposed in similar cases.22 Nothing in the legislative response 

dictated that it would apply to sentences which had already 

become final upon completion of direct review.23

4. Fourth Postconviction

Motion Proceedings

Exactly 1 year after the Hurst decision, Lotter filed in each 

case a fourth motion for postconviction relief. He set forth two 

16 Neb. Rev. Stat. §§ 29-2520 to 29-2524 (Reissue 1995).

17 Neb. Rev. Stat. §§ 28-105 and 28-303 (Reissue 1995).

18 See 2002 Neb. Laws, L.B. 1.

19 See § 29-2520(2) (Reissue 2008).

20 See § 29-2520(4)(e) and (f).

21 § 29-2521(1) and (3) (Reissue 2008).

22 § 29-2522 (Reissue 2008).

23 See L.B. 1.
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grounds for relief. Lotter first alleged that Nebraska’s capital sentencing scheme was unconstitutional in light of Hurst

(claim 1). Second, Lotter alleged that the death qualification of 

the jury violated his rights under the 8th and 14th Amendments 

(claim 2).

The district court promptly conducted a “preliminary review” 

to determine whether an evidentiary hearing should be granted. 

On January 17, 2017, the court entered an order denying claim 

2 as being procedurally barred. The court neither granted nor 

denied an evidentiary hearing on claim 1. The pertinent portion 

of the court’s order is as follows:

Lotter’s claim for post-conviction relief on Claim 1

is presently set for briefing from the State of Nebraska 

before this court determines whether a hearing is required. 

. . . Upon submission of the briefs, this court will determine if any further hearings will be necessary.

Lotter’s claim for post-conviction relief on Claim 2[] 

is denied. Lotter’s request to reverse his convictions are 

[sic] denied.

On Friday, January 27, 2017, the district court held a 

hearing concerning a mandate in a previous postconviction 

proceeding. During the hearing, Lotter’s counsel asked how 

to proceed with asking the court to reconsider its denial of 

claim 2. Counsel expressed concern that “if we file a motion 

for reconsideration within 10 days, there’s a potential that 

that can be construed as a final judgment in the case and so 

the issues would be bifurcated and we would have to litigate 

this piecemeal.” The court suggested that the “best path” may 

be to file a motion for reconsideration which “should hold it 

in abeyance.”

On Monday, January 30, 2017, Lotter filed a “Motion for 

Reconsideration and to Hold in Abeyance.” In the motion, 

Lotter asked the court to reconsider its ruling on claim 2 and to 

hold the motion in abeyance for hearing and decision together 

with the hearing and decision on claim 1. He asserted that 

before claim 2 is disposed of, the court should allow briefing 
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on whether cause existed to excuse any procedural default. 

Lotter further stated that “[i]n an abundance of caution, this 

motion is being filed in accordance with the provisions for filing a motion to alter or amend judgment under Neb. Rev. Stat. 

§ 25-1329 [(Reissue 2016)].”

Before the district court ruled on Lotter’s motion for reconsideration, Lotter filed a motion for leave to amend his postconviction motion. He sought to add an additional claim, which 

would allege that his direct appeal counsel was constitutionally 

ineffective for failing to challenge the death qualification of his 

jury and that his initial postconviction counsel had an actual 

conflict of interest which precluded counsel from asserting a 

claim based on ineffective assistance of direct appeal counsel (claim 3).

On February 22, 2017, the district court entered an order 

denying Lotter’s motion for reconsideration and denying the 

motion for leave to amend. Identical orders were filed in 

each case.

On March 22, 2017, Lotter filed a notice of appeal in 

each case, which were docketed in this court as cases Nos. 

S-17-325, S-17-338, and S-17-339 (first appeal). The State 

moved for summary dismissal, asserting lack of jurisdiction. 

We overruled the motion but reserved the jurisdictional issue 

until plenary submission of the appeals.

On September 28, 2017, the district court denied relief on 

claim 1 without an evidentiary hearing. The court determined 

that the claim was time barred, because Hurst did not create a 

newly recognized right. The court also concluded that neither 

Hurst nor Ring were retroactive on collateral review. Identical 

orders were filed in each case. Lotter, in turn, filed a timely 

appeal in each case, and those appeals have been docketed in 

this court as cases Nos. S-17-1126, S-17-1127, and S-17-1129 

(second appeal).

On our own motion, we consolidated the appeals in the first 

appeal with the appeals in the second appeal for purposes of 

oral argument and disposition.
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III. ASSIGNMENTS OF ERROR

In the first appeal, Lotter assigns that the district court erred 

in (1) finding that claim 2 was procedurally defaulted, (2) 

finding that the postconviction motion could not be amended, 

and (3) determining the merits of claim 2 and claim 3 without 

an evidentiary hearing.

In the second appeal, Lotter assigns no error to an action 

by the district court. Rather, he assigns that (1) the Nebraska 

capital sentencing scheme violates Hurst and the 6th and 14th 

Amendments, (2) Nebraska’s capital sentencing scheme allowing a three-judge panel to impose a death sentence violates 

the 8th Amendment, and (3) this court has jurisdiction over 

Lotter’s appeal from the denial of claim 2 and claim 3.

IV. STANDARD OF REVIEW

[1] Determination of a jurisdictional issue which does not 

involve a factual dispute is a matter of law which requires an 

appellate court to reach its conclusions independent from a 

trial court.24

[2] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law. When reviewing a 

question of law, an appellate court resolves the question independently of the lower court’s conclusion.25

V. ANALYSIS

1. Jurisdiction in

First Appeal

We begin by addressing the jurisdictional issue raised by the 

State in its motion for summary dismissal. The State claimed 

that Lotter’s appeal from the denial of claim 2 was untimely 

and that his notice of appeal from the denial of his motion to 

amend to add claim 3 was premature. Thus, the State contends 

that we lack jurisdiction over the first appeal.

24 State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).

25 State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018).
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(a) General Principles

[3-6] For an appellate court to acquire jurisdiction of an 

appeal, there must be a final judgment or final order entered 

by the tribunal from which the appeal is taken.26 It is well 

established that within a postconviction proceeding, an order 

granting an evidentiary hearing on some issues and denying a 

hearing on others is a final, appealable order as to the claims 

denied without a hearing.27 An order denying a postconviction claim is appealable even when the court reserves ruling 

on other claims.28 It is appealable because an order overruling a motion for postconviction relief as to a claim is a “final 

judgment” as to such claim under Neb. Rev. Stat. § 29-3002 

(Reissue 2016).29

[7-9] 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 motion which terminates the appeal 

period.30 A motion for reconsideration is the functional equivalent of a motion to alter or amend a judgment, which terminates the period in which a party must file a notice of appeal.31

In cases involving a motion to alter or amend a judgment, a 

critical factor is whether the motion was filed within 10 days 

of the final order, because a timely motion terminates the time 

for filing a notice of appeal.32

26 State v. Hudson, 273 Neb. 42, 727 N.W.2d 219 (2007).

27 See, State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016); State v. 

Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014); State v. Robinson, 287 

Neb. 606, 843 N.W.2d 672 (2014); State v. Timmens, 282 Neb. 787, 805 

N.W.2d 704 (2011); State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 

(2011); State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).

28 See, State v. Determan, supra note 27; State v. Silvers, 255 Neb. 702, 587 

N.W.2d 325 (1998).

29 See State v. Hudson, supra note 26.

30 See Neb. Rev. Stat. § 25-1912 (Reissue 2016).

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

(2017).

32 See Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
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(b) Lotter’s Arguments

Lotter advances two reasons to support his contention that 

his appeal as to the denial of claim 2 was timely. He also 

argues that we have jurisdiction over claim 3. We address the 

arguments separately.

(i) Motion Was Not Timely

[10] Lotter’s motion, filed 13 days after the district court 

denied Lotter’s claim 2, did not terminate or extend the time 

to appeal that denial. A motion for reconsideration does not 

terminate the time for appeal and is considered nothing more 

than an invitation to the court to consider exercising its inherent power to vacate or modify its own judgment.33 In some 

contexts, a motion for reconsideration may also be treated as a 

motion to alter or amend a judgment for purposes of terminating the appeal period under Neb. Rev. Stat. § 25-1329 (Reissue 

2016).34 In order to qualify for treatment as a motion to alter 

or amend a judgment, a motion must be filed no later than 10 

days after the entry of judgment, as required under § 25-1329, 

and must seek substantive alteration of the judgment.35 Here, 

the motion did not terminate the time for an appeal, whether 

characterized as a motion for reconsideration (which does not 

terminate the time for appeal) or a motion to alter of amend 

(which must be filed within 10 days in order to terminate the 

appeal time).

Lotter contends that his motion was timely under the circumstances. He asserts that when the court advised him to file 

a motion for reconsideration, the court enlarged the time for 

filing the motion for reconsideration as authorized under Neb. 

Ct. R. Pldg. § 6-1106(b)(1). Lotter quotes the following part of 

§ 6-1106(b):

33 See Kinsey v. Colfer, Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000).

34 County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 501, 

894 N.W.2d 308 (2017).

35 State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002).
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When by these rules or by a notice given thereunder or by 

order of court an act is required or allowed to be done at 

or within a specified time, the court for cause shown may 

at any time in its discretion (1) with or without motion 

or notice order the period enlarged if request therefor is 

made before the expiration of the period originally prescribed or as extended by a previous order[.]

But we conclude the rule is inapplicable for two primary 

reasons.

[11] First, the rule of pleading that Lotter relies upon does 

not apply to this proceeding. Postconviction proceedings are 

not governed by the Nebraska Court Rules of Pleading in 

Civil Cases.36

[12,13] Second, even if the rule did apply, the pertinent 

statute does not allow for an extension of time. Lotter’s discussion of the rule omitted the portion of § 6-1106(b) stating 

that “[t]he court may not extend the time for taking any action 

specified in any statute, except to the extent and under the 

conditions stated in the statutes.” Section 25-1329 mandates 

that “[a] motion to alter or amend a judgment shall be filed 

no later than ten days after the entry of the judgment.”37 An 

untimely motion to alter or amend does not terminate the time 

for perfection of an appeal and does not extend or suspend the 

time limit for filing a notice of appeal.38 Allowing an untimely 

motion to alter or amend would have the effect of extending 

the time for filing an appeal. But when the Legislature fixes 

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

extend the time directly or indirectly.39

Lotter’s motion did not terminate the time for filing an 

appeal from the January 17, 2017, order. The appeal time 

expired 30 days after the entry of the order. Thus, the notice 

36 State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).

37 § 25-1329.

38 See Fitzgerald v. Fitzgerald, supra note 32.

39 State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).
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of appeal filed on March 22 was not timely to challenge the 

denial of claim 2.

(ii) Order Was Not New Judgment

Lotter next argues that the February 22, 2017, order substantially altered the January 17 order and constituted a new 

judgment. The February order accomplished two things. First, 

it denied Lotter’s motion for reconsideration of the denial of 

claim 2. Second, it denied Lotter’s motion for leave to amend 

his postconviction motion to add claim 3. Because Lotter filed 

a notice of appeal within 30 days of that order, he contends 

his appeal is timely as to both claim 2 and claim 3. We consider each.

a. Claim 2

Lotter claims that the February order substantively altered 

its previous order, because it ruled on the merits of claim 2. 

The court stated that it denied claim 2 “for reasons set out 

in its January 17 . . . order” and that it denied the motion for 

reconsideration of that ruling. Thus, the February order did not 

alter the court’s reasons for its denial of claim 2. To the extent 

the court discussed whether claim 2 had any merit, it did so 

in the context of ruling on the motion for leave to amend to 

add claim 3. We conclude Lotter’s appeal as to claim 2 was 

not timely. The court’s February order, which denied Lotter’s 

untimely motion to alter or amend the judgment, was itself not 

an appealable order.40

b. Claim 3

Lotter also argues that we have jurisdiction over claim 3, the 

claim that the court denied leave to add. To the extent his argument applies to the first appeal, we disagree.

[14] An order ruling on a motion filed in a pending postconviction case seeking to amend the postconviction motion 

to assert additional claims is not a final judgment and is not 

40 See Mason v. Cannon, 246 Neb. 14, 516 N.W.2d 250 (1994).
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appealable under § 29-3002.41 We have explained that the 

overruling of a motion for leave to amend in order to add a 

claim is not a ruling on the merits of the proposed claim, but, 

rather, is an order precluding the assertion of an additional 

claim.42 At the time the court denied leave to amend, Lotter’s 

claim 1 remained pending. Under the general rule, the denial of 

Lotter’s motion to amend was not a final judgment.

Lotter also argues that we have jurisdiction because the 

district court ruled on the merits of claim 3. In declining to 

allow the motion for leave to amend, the court provided three 

reasons. The first reason was that the motion to amend was 

filed after the court already denied claim 2. Second, the court 

stated that claim 3 would be time barred. Third, the court stated 

that claim 3 was a “derivative claim” based on claim 2 and that 

the court could have easily denied claim 2 on its merits. But 

the court’s discussion touching on the merits of claim 2 and, 

thus, claim 3 was mere surplusage. After the court determined 

that claim 2 was procedurally barred, it was unnecessary for 

the court to engage in any further analysis as to whether the 

claim would otherwise have merit. This surplusage does not 

create jurisdiction.

[15] Lotter argues that we have jurisdiction because his 

premature notice of appeal as to claim 3 related forward to the 

date of entry of the final judgment. But this argument depends 

upon Lotter’s assertion that the court decided the merits of 

claim 3. It is true that § 25-1912(2) provides:

A notice of appeal or docket fee filed or deposited after 

the announcement of a decision or final order but before 

the entry of the judgment, decree, or final order shall be 

treated as filed or deposited after the entry of the judgment, decree, or final order and on the date of entry.

However, “to trigger the savings clause for premature notices 

of appeal under § 25-1912(2), an announcement must pertain 

41 State v. Hudson, supra note 26.

42 See id.
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to a decision or order that, once entered, would be final and 

appealable.”43 Because the court did not reach the merits of 

claim 3, its February 22, 2017, order did not announce a “decision or final order” within the meaning of § 25-1912(2).

At this point, we recognize that our analysis in State v. 

Robertson44 does not directly apply in this situation. There, the 

court considered amendment in the context of a timely filed 

motion to alter or amend a judgment. Moreover, the motion 

there was filed after an order disposing of all of the defendant’s postconviction claims, all of which were premised on 

ineffective assistance of counsel. Here, Lotter’s motion for 

leave to amend was filed in connection with a motion that 

could not be considered as a timely motion to alter or amend 

a judgment. Further, claim 1 remained pending. Under this circumstance, the general rule applies. It necessarily follows that 

our jurisdiction regarding the denial of amendment to assert 

claim 3 lies only in the context of the second appeal following 

the entry of judgment disposing of claim 1.

For all of the above reasons, we lack jurisdiction over the 

first appeal. Therefore, we do not consider any arguments 

directed to the merits of claim 2.

2. Second Appeal

(a) Refusal to Allow 

Addition of Claim 3

Our disposition of the first appeal naturally leads to the 

conclusion that in the second appeal, we have jurisdiction of 

the denial of leave to amend to add claim 3. But in Lotter’s 

appellate brief, he did not assign error to the denial of that 

motion. As we have said many times, an alleged error must be 

both specifically assigned and specifically argued in the brief 

of the party asserting the error to be considered by an appellate 

43 Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 795, 901 

N.W.2d 278, 282 (2017).

44 State v. Robertson, supra note 36.
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court.45 Because Lotter’s brief in the second appeal failed to 

assign error to the denial of the motion for leave to amend, we 

decline to address the argument.

(b) Merits of Claim 1

The crux of the second appeal concerns the district court’s 

denial of claim 1. Lotter argues that Nebraska’s capital sentencing scheme is unconstitutional under the 6th, 8th, and 14th 

Amendments to the U.S. Constitution and under Hurst. But 

we will not resolve his arguments if his motion is time barred 

under § 29-3001(4).

[16] The Nebraska Postconviction Act contains a 1-year 

time limit for filing a verified motion for postconviction relief, 

which runs from one of four triggering events or August 27, 

2011, whichever is later.46 The triggering events are:

(a) The date the judgment of conviction became final 

by the conclusion of a direct appeal or the expiration of 

the time for filing a direct appeal;

(b) The date on which the factual predicate of the 

constitutional claim or claims alleged could have been 

discovered through the exercise of due diligence;

(c) The date on which an impediment created by state 

action, in violation of the Constitution of the United 

States or the Constitution of Nebraska or any law of this 

state, is removed, if the prisoner was prevented from filing a verified motion by such state action;

(d) The date on which a constitutional claim asserted 

was initially recognized by the Supreme Court of the 

United States or the Nebraska Supreme Court, if the 

newly recognized right has been made applicable retroactively to cases on postconviction collateral review[.]47

Lotter claims that his motion is not time barred, because 

it was filed within 1 year of the Hurst decision. Thus, 

45 See State v. McGuire, supra note 25.

46 State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016).

47 § 29-3001(4).
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Lotter appears to be relying on the triggering event found 

in § 29-3001(4)(d). But Hurst will save Lotter’s otherwise 

untimely motion only if it initially recognized a constitutional 

claim and that newly recognized right is applicable retroactively to cases on collateral review. And his argument based 

on the Eighth Amendment can be timely only to the extent it 

is based on Hurst.

[17] We do not read Hurst as announcing a new rule of law. 

Rather, Hurst applied the analysis of Ring to Florida’s sentencing scheme. In the introductory paragraph of Hurst, the Court 

stated that Florida’s sentencing scheme was unconstitutional 

because: “The Sixth Amendment requires a jury, not a judge, 

to find each fact necessary to impose a sentence of death. 

A jury’s mere recommendation is not enough.”48 The Court 

stated that it “granted certiorari to resolve whether Florida’s 

capital sentencing scheme violates the Sixth Amendment in 

light of Ring.”49 It later declared that “[t]he analysis the Ring

Court applied to Arizona’s sentencing scheme applies equally 

to Florida’s.”50 The Hurst Court stated, “In light of Ring, 

we hold that [the defendant’s] sentence violates the Sixth 

Amendment.”51 And the Court overruled two of its prior decisions “to the extent they allow a sentencing judge to find an 

aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty.”52

The opinion concluded by stating that “Florida’s sentencing 

scheme, which required the judge alone to find the existence of 

an aggravating circumstance, is therefore unconstitutional.”53

In our view, Hurst merely applied Ring and did not set forth a 

new rule of law for sentencing.

48 Hurst v. Florida, supra note 1, 136 S. Ct. at 619.

49 Id., 136 S. Ct. at 621.

50 Id., 136 S. Ct. at 621-22.

51 Id., 136 S. Ct. at 622.

52 Id., 136 S. Ct. at 624.

53 Id.
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We are not persuaded by Lotter’s and amici’s attempt to 

distinguish Hurst from Ring. Lotter and amici contend that 

Ring was limited to the Sixth Amendment jury trial right and 

identity of the fact finder, while Hurst also implicates the proof 

beyond a reasonable doubt requirement. Lotter maintains that 

Hurst clarified the weighing of facts in aggravation and mitigation must be made by a jury. Lotter and amici read too much 

into Hurst.

[18] The analysis in Hurst made fleeting references to the 

burden of proof and weighing of aggravating and mitigating 

circumstances. The analysis began by citing Alleyne v. United 

States54 for the proposition that the Sixth Amendment right 

to trial by jury, “in conjunction with the Due Process Clause, 

requires that each element of a crime be proved to a jury 

beyond a reasonable doubt.”55 Then, in rejecting an argument 

made by Florida, the Court recognized that under the Florida 

sentencing statute, “[t]he trial court alone must find ‘the facts 

. . . [t]hat sufficient aggravating circumstances exist’ and ‘[t]hat 

there are insufficient mitigating circumstances to outweigh the 

aggravating circumstances.’”56 We cannot transform these isolated references in the majority’s analysis into a holding that 

a jury must find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances. The 

Hurst Court said no such thing. “Constitutional rights are not 

defined by inferences from opinions which did not address the 

question at issue.”57 Like Ring, the Hurst decision focused on 

the jury’s role in finding an aggravating circumstance. Later, 

the author of Hurst essentially said as much: “In Hurst v. 

Florida, . . . we held that process, ‘which required the judge 

54 Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 

(2013).

55 Hurst v. Florida, supra note 1, 136 S. Ct. at 621.

56 Id., 136 S. Ct. at 622 (emphasis in original).

57 Texas v. Cobb, 532 U.S. 162, 169, 121 S. Ct. 1335, 149 L. Ed. 2d 321 

(2001).
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alone to find the existence of an aggravating circumstance,’ to 

be unconstitutional.”58

Most federal59 and state60 courts agree that Hurst did not 

hold a jury must find beyond a reasonable doubt that the 

aggravating factors outweigh the mitigating circumstances. 

The 10th Circuit aptly observed: “[T]he Supreme Court’s 

holding in Hurst only referenced the [finding of aggravating 

circumstances] . . . . The Court thus did not address whether 

the second of the required findings—that mitigating circumstances do not outweigh the aggravating circumstances—is 

also subject to Apprendi’s rule.”61 This view is not universal.62

One opinion expressing a contrary view called the meaning 

of Hurst “contestable.”63 But we see no ambiguity. The plain 

language of Hurst reveals no holding that a jury must find 

beyond a reasonable doubt that the aggravating factors outweigh the mitigating circumstances. And this court has previously concluded that neither Apprendi nor Ring require that 

the determination of mitigating circumstances, the balancing 

58 Truehill v. Florida, ___ U.S. ___, 138 S. Ct. 3, 4, 199 L. Ed. 2d 272 

(2017) (Sotomayor, J., dissenting from denial of certiorari; Ginsburg and 

Breyer, JJ., join).

59 See, Underwood v. Royal, 894 F.3d 1154 (10th Cir. 2018); Runyon 

v. U.S., 228 F. Supp. 3d 569 (E.D. Va. 2017); Garza v. Ryan, No. 

CV-14-01901-PHX-SRB, 2017 WL 105983 (D. Ariz. Jan. 11, 2017) 

(unpublished decision).

60 See, e.g., Ex Parte Bohannon, 222 So. 3d 525 (Ala. 2016), cert. denied

___ U.S. ___, 137 S. Ct. 831, 197 L. Ed. 2d 72 (2017); Leonard v. State, 

73 N.E.3d 155 (Ind. 2017); Evans v. State, 226 So. 3d 1 (Miss. 2017), cert. 

denied ___ U.S. ___, 138 S. Ct. 2567, ___ L. Ed. 2d ___ (2018); Jeremias 

v. State, 412 P.3d 43 (Nev. 2018); State v. Mason, No. 2017-0200, slip op. 

2018 Ohio 1462, 2018 WL 1872180 (Ohio Apr. 18, 2018).

61 Underwood v. Royal, supra note 59, 894 F.3d at 1184.

62 See, e.g., Rauf v. State, 145 A.3d 430 (Del. 2016); Smith v. Pineda, No. 

1:12-cv-196, 2017 WL 631410 (S.D. Ohio Feb. 16, 2017) (unpublished 

decision).

63 Rauf v. State, supra note 62, 145 A.3d at 435 (Strine, C.J., concurring; 

Holland and Seitz, JJ., join).
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function, or the proportionality review be undertaken by 

a jury.64

[19] Even if we found that Hurst did announce a new law, 

it would not apply retroactively to Lotter. As we concluded 

above, Hurst merely applied Ring. And it is well established 

that Ring does not apply retroactively to cases on collateral 

review. The U.S. Supreme Court declared that “Ring announced 

a new procedural rule that does not apply retroactively to cases 

already final on direct review.”65 And in one of Lotter’s previous postconviction appeals, we explained in great detail why 

Ring did not apply retroactively to his case.66

Likewise, Hurst has no retroactive application to cases on 

collateral review. Because Hurst is tethered to Ring, we see 

no reason why Hurst would apply retroactively on collateral 

review when Ring does not. In considering an identical issue 

raised in Lotter’s petition for habeas corpus, the Nebraska 

federal district court reached the same conclusion.67 Lotter 

appealed that decision, but the Eighth Circuit denied his application for a certificate of appealability68 and the U.S. Supreme 

Court denied his petition for certiorari.69 We observe that 

several federal circuit courts of appeal have found that Hurst

does not apply retroactively to cases on collateral review.70

64 See State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).

65 Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519, 159 L. Ed. 2d 

442 (2004).

66 State v. Lotter, supra note 4.

67 Lotter v. Britten, 4:04CV3187, 2017 WL 744554 (D. Neb. Feb. 24, 2017) 

(unpublished decision).

68 Lotter v. Britten, case No. 17-2000, 2017 WL 5015176 (8th Cir. July 31, 

2017) (unpublished decision).

69 Lotter v. Frakes, ___ U.S. ___, 138 S. Ct. 926, 200 L. Ed. 2d 205 (2018).

70 See, Rhines v. Young, 899 F.3d 482 (8th Cir. 2018); In re Coley, 871 F.3d 

455 (6th Cir. 2017); Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017); 

Lambrix v. Secretary, Florida Dept. of Corrections, 851 F.3d 1158 (11th 

Cir. 2017), cert. denied ___ U.S. ___, 138 S. Ct. 217, 199 L. Ed. 2d 142; 

In re Jones, 847 F.3d 1293 (10th Cir. 2017).
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Other federal courts agree.71 Most state courts have reached 

the same conclusion.72 And we are not swayed by Delaware’s 

decision to give retroactive effect to Rauf v. State,

73 its opinion 

interpreting Hurst.

74

Although Lotter filed his motion for postconviction relief 

within 1 year of the Hurst decision, that decision is not 

a “newly recognized right [that] has been made applicable 

retroactively to cases on postconviction collateral review.”75

Accordingly, Lotter’s claim 1 is time barred.

VI. CONCLUSION

We conclude that we lack jurisdiction over Lotter’s first 

appeal. Because we agree with the district court that the 

claim raised in Lotter’s second appeal is barred by the limitation period set forth in § 29-3001 and that subsection (4)(d) 

does not extend the limitation period, we affirm the court’s 

decision.

 Appeals in Nos. S-17-325, S-17-338, and

 S-17-339 dismissed.

Judgment and final order in Nos. S-17-1126,

 S-17-1127, and S-17-1129 affirmed.

Miller-Lerman and Freudenberg, JJ., not participating.

71 See, Taylor v. Dunn, No. 14-0439-WS-N, 2018 WL 575670 (S.D. 

Ala. Jan. 25, 2018) (unpublished decision); Styers v. Ryan, No. 

CV-12-02332-PHX-JAT, 2017 WL 3641454 (D. Ariz. Aug. 24, 2017) 

(unpublished decision); Gapen v. Robinson, No. 3:08-cv-280, 2017 WL 

3524688 (S.D. Ohio Aug. 15, 2017) (unpublished decision).

72 See, Reeves v. State, 226 So. 3d 711 (Ala. Crim. App. 2016), cert. denied

___ U.S. ___, 138 S. Ct. 22, 199 L. Ed. 2d 341 (2017); Hitchcock v. 

State, 226 So. 3d 216 (Fla. 2017), cert. denied ___ U.S. ___, 138 S. Ct. 

513, 199 L. Ed. 2d 396; State v. Jackson, No. 2017-T-0041, slip op. 2018 

Ohio 2146, 2018 WL 2676465 (Ohio App. June 4, 2018) (unpublished 

decision).

73 Rauf v. State, supra note 62.

74 See Powell v. Delaware, 153 A.3d 69 (Del. 2016).

75 § 29-3001(4)(d).