NE Code § 29-2103 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2103 - New trial; motion; how and when made.

29-2103.  New trial; motion; how and when made.(1) A motion for new trial shall be made by written application and may be filed either during or after the term of the court at which the verdict was rendered.(2) A motion for a new trial shall state the grounds under section 29-2101 which are the basis for the motion and shall be supported by evidence as provided in section 29-2102.(3) A motion for new trial based on the grounds set forth in subdivision (1), (2), (3), (4), or (7) of section 29-2101 shall be filed within ten days after the verdict was rendered unless such filing is unavoidably prevented, and the grounds for such motion may be stated by directly incorporating the appropriate language of section 29-2101 without further particularity.(4) A motion for new trial based on the grounds set forth in subdivision (5) of section 29-2101 shall be filed within a reasonable time after the discovery of the new evidence and cannot be filed more than five years after the date of the verdict, unless the motion and supporting documents show the new evidence could not with reasonable diligence have been discovered and produced at trial and such evidence is so substantial that a different result may have occurred.(5) A motion for new trial based on the grounds set forth in subdivision (6) of section 29-2101 shall be filed within ninety days after a final order is issued under section 29-4123 or within ninety days after the hearing if no final order is entered, whichever occurs first.Source   G.S.1873, c. 58, § 491, p. 831;   Laws 1881, c. 33, § 1, p. 212;   R.S.1913, § 9133;   C.S.1922, § 10158;   C.S.1929, § 29-2103;   Laws 1935, c. 65, § 1, p. 223;   C.S.Supp.,1941, § 29-2103;   R.S.1943, § 29-2103;   Laws 1947, c. 104, § 1, p. 293;  Laws 2001, LB 659, § 13;  Laws 2015, LB245, § 2.  Annotations  1. Time to be filed 2. Newly discovered evidence 3. Other grounds 4. Miscellaneous 1. Time to be filed Where the record does not support a finding that a defendant was unavoidably prevented from timely filing a motion for new trial based on grounds set forth in subdivisions (1) through (4) or (7) of section 29-2101, such a filing made more than 10 days after the jury returned its verdict has no effect and may not be considered by an appellate court. State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018). A motion could not be brought to compel state-funded DNA testing when the 3-year time period required by this section had passed. State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000). This section, by its terms, is mandatory. A motion for new trial not filed in conformity with the statutory requirements as to time may not be considered by an appellate court on review. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993). Motion for new trial not filed within ten days after verdict rendered, where no showing made that defendant was unavoidably prevented from doing so, is a nullity. State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90 (1977). Motion for new trial hereunder must be filed within ten days after verdict, not sentencing. State v. Applegarth, 196 Neb. 773, 246 N.W.2d 216 (1976). A motion for new trial under this section must be filed within ten days after the verdict is rendered, not from sentencing unless the verdict and sentencing occur on the same day. State v. Betts, 196 Neb. 572, 244 N.W.2d 195 (1976). A motion for new trial under this section must be filed within ten days after the verdict is rendered, not from date of sentencing. State v. Wood, 195 Neb. 353, 238 N.W.2d 226 (1976). A motion for new trial hereunder must be filed within ten days after the verdict is rendered not after sentencing. State v. Lacy, 195 Neb. 299, 237 N.W.2d 650 (1976). An order granting probation is a sentence under section 29-2260(4), and for review a motion for new trial must be filed within ten days, but no motion for new trial is required for review of order revoking probation. State v. Mosley, 194 Neb. 740, 235 N.W.2d 402 (1975). A motion for new trial in a criminal case must be filed within ten days after rendition of verdict. State v. Losieau, 179 Neb. 54, 136 N.W.2d 168 (1965). Motion for new trial was timely filed. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960). Defendant was not unavoidably prevented from filing motion for new trial in time prescribed. Stanosheck v. State, 168 Neb. 43, 95 N.W.2d 197 (1959). In criminal case, motion for new trial must be filed within ten days and amendment thereto cannot thereafter be made. Parker v. State, 164 Neb. 614, 83 N.W.2d 347 (1957). An objection to a juror raised for first time in second motion for new trial filed fourteen days after filing of first motion for new trial, and containing no showing of newly discovered evidence, is out of time and not ground for new trial. Young v. State, 133 Neb. 644, 276 N.W. 387 (1937). Provisions limiting time are mandatory. McCoy v. State, 110 Neb. 360, 193 N.W. 716 (1923); Davis v. State, 31 Neb. 240, 47 N.W. 851 (1891). Motion filed two years after judgment on ground of newly discovered evidence was properly dismissed. Bradshaw v. State, 19 Neb. 644, 28 N.W. 323 (1886). 2. Newly discovered evidence A former version of subsection (4) of this section, which required a defendant to move for a new trial because of newly discovered evidence within 3 years, did not violate the due process rights of a defendant who alleged the State failed to disclose favorable evidence it had received 5 years after his murder conviction. The defendant did not claim that the favorable evidence was sufficiently compelling to show his actual innocence or that Nebraska's postconviction procedures were inadequate to protect his statutory postconviction rights, and a defendant has no substantive due process right to have the State disclose exculpatory evidence discovered after a final judgment. State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017). Under the former law, a motion for postconviction relief could not be used to obtain, outside of the 3-year time limitation under subsection (4) of this section, what is essentially a new trial based on newly discovered evidence. State v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013). New evidence tendered in support of a motion for a new trial on the grounds of newly discovered evidence must be so potent that by strengthening evidence already offered, a new trial would probably result in a different verdict. State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974). Motion for new trial upon ground of newly discovered evidence in criminal case may be made within three years of the date of the verdict. Smith v. State, 167 Neb. 492, 93 N.W.2d 499 (1958). To require granting of new trial, newly discovered evidence must be of such nature as to probably change the verdict. Ysac v. State, 167 Neb. 24, 91 N.W.2d 49 (1958). Granting or refusal of new trial upon the ground of newly discovered evidence depends upon the facts and circumstances of each case. Severin v. State, 148 Neb. 617, 28 N.W.2d 326 (1947). In criminal case, new trial will be granted for newly discovered evidence which is competent, material and credible, which might have changed result of trial, and which exercise of due diligence could not have discovered and produced at trial. Duffey v. State, 124 Neb. 23, 245 N.W. 1 (1932). Pursuant to subsection (4) of this section, a motion for new trial based on newly discovered evidence under section 29-2101(5) must be filed within 3 years of the date of the verdict. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010). Pursuant to subsection (4) of this section, the appellate court was without jurisdiction to consider the assignment of error relating to the denial of a motion for new trial in a reinstated direct appeal, where only the direct appeal was reinstated and the defendant did not timely file a notice of appeal following the denial of his motion for new trial based on newly discovered evidence. State v. Luff, 18 Neb. App. 422, 783 N.W.2d 625 (2010). Newly discovered evidence offered in support of a motion for new trial must be such that, by strengthening the evidence already offered, a new trial would probably result in a different verdict. State v. Edwards, 2 Neb. App. 149, 507 N.W.2d 506 (1993). 3. Other grounds This court will not consider any error not presented below by motion for new trial where trial court had power to correct. State v. Beans, 199 Neb. 807, 261 N.W.2d 749 (1978). This and other sections provide for redress by trial court, and review by Supreme Court, of trial errors challenged by motion for new trial. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931). Evidence adduced on hearing, to be available on review, must be incorporated in bill of exceptions. Holt v. State, 62 Neb. 134, 86 N.W. 1073 (1901). Misconduct of juror, to be available on review, must be presented by record and assigned as error in motion. Bush v. State, 62 Neb. 128, 86 N.W. 1062 (1901). Assignments for failure to give group of instructions is considered no further when it is ascertained that refusal to give any one was proper. Thompson v. State, 44 Neb. 366, 62 N.W. 1060 (1895). Errors occurring during trial, to be reviewable, must be assigned in motion and ruling obtained thereon. Wilson v. State, 43 Neb. 745, 62 N.W. 209 (1895). Assignment in language of statute is sufficient. McNamee v. State, 34 Neb. 288, 51 N.W. 821 (1892). Motion is indivisible and where made jointly by several parties, if it cannot be allowed as to all, must be overruled as to all. Dutcher v. State, 16 Neb. 30, 19 N.W. 612 (1884). 4. Miscellaneous "Unavoidably prevented" as used in this section refers to circumstances beyond the control of the party filing the motion for new trial. State v. Thompson, 246 Neb. 752, 523 N.W.2d 246 (1994). This section is constitutional and does not violate the concepts of due process. State v. Kelley, 198 Neb. 805, 255 N.W.2d 840 (1977). Where presiding judge is unavoidably prevented from ruling on motion for new trial, another judge may perform that duty. Hauser v. State, 101 Neb. 834, 166 N.W. 245 (1917). Decision of trial judge permitted to stand if evidence on which it rests is fairly conflicting. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902). Motion properly dealt with as entirety; it is not error to overrule if it cannot be sustained in form presented. Reed v. State, 66 Neb. 184, 92 N.W. 321 (1902). Failure to file motion is not sufficient cause for dismissing petition in error. Rhea v. State, 61 Neb. 15, 84 N.W. 414 (1900). District judge may hear motion in case wherein judge of another district presided. Lauder v. State, 50 Neb. 140, 69 N.W. 776 (1897). Supreme Court, as court of equity, cannot grant new trial in criminal cases instituted before it. Paulson v. State, 25 Neb. 344, 41 N.W. 249 (1889). The trial court properly overruled the defendant's motion for new trial because the defendant filed the motion more than 10 days after the verdict and because the defendant's newly discovered evidence was cumulative and only went to the credibility of a witness. State v. Egger, 8 Neb. App. 740, 601 N.W.2d 785 (1999). This section does not abolish the writ of error coram nobis. Hawk v. Jones, 160 F.2d 807 (8th Cir. 1947).