NE Code § 29-4123 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-4123 - DNA testing results; effect.

29-4123.  DNA testing results; effect.(1) The results of the final DNA or other forensic testing ordered under subsection (5) of section 29-4120 shall be disclosed to the county attorney, to the person filing the motion, and to the person's attorney.(2) Upon receipt of the results of such testing, any party may request a hearing before the court when such results exonerate or exculpate the person. Following such hearing, the court may, on its own motion or upon the motion of any party, vacate and set aside the judgment and release the person from custody based upon final testing results exonerating or exculpating the person.(3) If the court does not grant the relief contained in subsection (2) of this section, any party may file a motion for a new trial under sections 29-2101 to 29-2103.Source Laws 2001, LB 659, § 8.Annotations  Resentencing, absent a successful motion for new trial under this section, is not a form of relief available under the DNA Testing Act. State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020). Withdrawal of a guilty or no contest plea is not an available remedy under the DNA Testing Act. State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020). Unless an abuse of discretion is shown, the trial court's determination on a motion for new trial, based on the issue of whether DNA evidence was of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result, will not be disturbed on appellate review. State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010). A motion to dismiss an action under the DNA Testing Act after testing has been completed is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the court's determination will not be disturbed. State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006). In order to bring an action under the DNA Testing Act to a conclusion, when the State receives DNA testing results that do not exonerate or exculpate the person, the State should file a motion to dismiss the action, the granting of which is an appealable order. State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006). The DNA Testing Act establishes a clear procedural framework for movants seeking relief pursuant to the DNA Testing Act. First, a movant may obtain DNA testing if, inter alia, the testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced. Second, the court may vacate and set aside the judgment in circumstances where the DNA testing results are either completely exonerative or highly exculpatory—when the results, when considered with the evidence of the case which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element of the crime charged. This requires a finding that guilt cannot be sustained because the evidence is doubtful in character and completely lacking in probative value. Third, in other circumstances where the evidence is merely exculpatory, the court may order a new trial if the newly discovered exculpatory DNA evidence is of such a nature that if it had been offered and admitted at the former trial, it probably would have produced a substantially different result. State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004). A court may properly grant a motion to vacate and set aside the judgment under subsection (2) of this section when (1) the DNA testing results exonerate or exculpate the person and (2) the results, when considered with the evidence of the case which resulted in the underlying judgment, show a complete lack of evidence to establish an essential element of the crime charged. This requires a finding that guilt cannot be sustained because the evidence is doubtful in character and completely lacking in probative value. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003). The appeal of a ruling denying a motion to vacate and set aside the judgment under subsection (2) of this section of the DNA Testing Act does not deprive a trial court of jurisdiction to consider a motion for new trial filed under subsection (6) of section 29-2101 based on newly discovered evidence obtained under the DNA Testing Act. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003). The denial of a motion to vacate and set aside the judgment under subsection (2) of this section affects a substantial right in a special proceeding and is therefore an appealable order under section 25-1902. State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).