2023 Nebraska Revised Statutes › Chapter 29 - Criminal Procedure › 29-2315.01 - Appeal by prosecuting attorney; application; procedure.

29-2315.01.
Appeal by prosecuting attorney; application; procedure.
The prosecuting attorney may take exception to any ruling or decision of the court made during the prosecution of a cause by presenting to the trial court the application for leave to file an appeal with reference to the rulings or decisions of which complaint is made. Such application shall contain a copy of the ruling or decision complained of, the basis and reasons for objection thereto, and a statement by the prosecuting attorney as to the part of the record he or she proposes to present to the appellate court. Such application shall be filed with the trial court within twenty days after the final order is entered in the cause, and upon presentation, if the trial court finds it is in conformity with the truth, the judge of the trial court shall sign the same and shall further indicate thereon whether in his or her opinion the part of the record which the prosecuting attorney proposes to present to the appellate court is adequate for a proper consideration of the matter. The prosecuting attorney shall then file such application with the appellate court within thirty days from the date of the final order. If the application is granted, the prosecuting attorney shall within thirty days from such granting order a bill of exceptions in accordance with section 29-2020 if such bill of exceptions is desired and otherwise proceed to obtain a review of the case as provided in section 25-1912.
Source
Laws 1959, c. 121, § 1, p. 453;
Laws 1961, c. 135, § 4, p. 391;
Laws 1982, LB 722, § 9;
Laws 1987, LB 33, § 5;
Laws 1991, LB 732, § 80;
Laws 1992, LB 360, § 8;
Laws 2003, LB 17, § 11;
Laws 2018, LB193, § 59.
Annotations
1. Final order required
2. Procedure
3. Scope of error proceedings
4. Miscellaneous
1. Final order required
The State does not have the ability to appeal an order finding indigency and appointing counsel prior to the issuance of a final order. State v. Fredrickson, 305 Neb. 165, 939 N.W.2d 385 (2020).
By its language, this section clearly requires that an error proceeding cannot be brought until after a "final order" has been entered. The test of finality of an order or judgment for the purpose of appeal under this section is whether the particular proceeding or action was terminated by the order or judgment. State v. Warner, 290 Neb. 954, 863 N.W.2d 196 (2015).
A judgment entered during the pendency of a criminal cause is final when no further action is required to completely dispose of the cause pending. State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011).
The test of finality of an order or judgment for the purpose of appeal is whether the particular proceeding or action was terminated by the order or judgment. State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011).
An order to disqualify the county attorney's office was not a final, appealable order, and the exception in Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997), to the final order rule did not apply because the State's interest in prosecuting the defendant was protected by the appointment of a special counsel to prosecute the defendant on behalf of the State. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006).
The State's right to appeal in criminal cases is limited by this section, which provides that the State may appeal only after a final order has been filed in the case. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006).
This section does not permit an appeal by the State from any interlocutory ruling of the trial court in a criminal proceeding. State v. Coupens, 20 Neb. App. 485, 825 N.W.2d 808 (2013).
2. Procedure
In the absence of specific statutory authorization, the State, as a general rule, has no right to appeal an adverse ruling in a criminal case. State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011).
This section grants the State the right to seek appellate review of adverse criminal rulings and specifies the special procedure by which to obtain such review. State v. Penado, 282 Neb. 495, 804 N.W.2d 160 (2011); State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006); State v. Wieczorek, 252 Neb. 705, 565 N.W.2d 481 (1997); State v. Coupens, 20 Neb. App. 485, 825 N.W.2d 808 (2013).
A defendant cannot file a cross-appeal to an exception proceeding unless the general appeal provisions are complied with. State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).
The State's right to seek a review is limited to the procedure set forth in this section. State v. Recek, 263 Neb. 644, 641 N.W.2d 391 (2002).
Failure to strictly comply with the jurisdictional prerequisites of this section prevents the State from obtaining any review of a trial court's final order in a criminal case. State v. Johnson, 259 Neb. 942, 613 N.W.2d 459 (2000).
The county attorney in a criminal proceeding must present to the trial court an application for leave to docket an appeal according to this section before seeking review under the general appeal statute, section 25-1912. State v. Baird, 238 Neb. 724, 472 N.W.2d 203 (1991).
The trial judge has no authority to decide whether an appeal under this section may be taken. State v. Wren, 234 Neb. 291, 450 N.W.2d 684 (1990).
County attorney's appeals involving criminal matters were dismissed where civil appeals improperly perfected. State v. Gillett & Gaston, 199 Neb. 829, 261 N.W.2d 763 (1978).
This section prevents the state from a cross-appeal on an order granting defendant a new trial in a criminal case. State v. Martinez, 198 Neb. 347, 252 N.W.2d 630 (1977).
The right of the county attorney to review questions of law hereunder is limited to cases in which a final order or judgment in the criminal case has been entered, and authority does not extend to city attorneys nor prosecutions under city ordinances. State v. Linn, 192 Neb. 798, 224 N.W.2d 539 (1974).
Proper practice would be to institute error proceedings only after sentence is imposed or motion for new trial is overruled, but since decision here will not affect defendant, and will govern only pending or future similar cases, motion to dismiss because prematurely filed is overruled. State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974).
Pendency of error proceedings under this section does not preclude appeal under section 29-3002. State v. Carpenter, 186 Neb. 605, 185 N.W.2d 663 (1971).
Review of order sustaining demurrer to information was properly brought by the state. State v. Buttner, 180 Neb. 529, 143 N.W.2d 907 (1966).
County attorney is required to apply for leave to docket proceedings within one month from date of final order. State v. Satterfield, 179 Neb. 451, 138 N.W.2d 656 (1965).
The Nebraska Supreme Court has consistently maintained that strict compliance with this section is required to confer jurisdiction. State v. Coupens, 20 Neb. App. 485, 825 N.W.2d 808 (2013).
This section must be read in pari material with section 25-1912 and mandates that when an appellate court grants the State leave to docket an appeal, the State must file a notice of appeal within 30 days in order to perfect jurisdiction in the appellate court. State v. Kissell, 13 Neb. App. 209, 690 N.W.2d 194 (2004).
In a criminal proceeding tried in the county court and appealed to the district court, "trial court" as used in this section is a synonym for "district court". A trial judge has no authority to decide whether an appeal under this section may be taken, and a district judge's refusal to sign an application for leave to docket the appeal does not deprive a higher court of jurisdiction. State v. Rubek, 7 Neb. App. 68, 578 N.W.2d 502 (1998).
3. Scope of error proceedings
The purpose of appellate review pursuant to this section is to provide an authoritative exposition of the law to serve as precedent in future cases. State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009).
This section allows the county attorney to request appellate review of an adverse decision or ruling in a criminal case in district court after a final order or judgment in the criminal case has been entered, but it does not allow an appellate court to review issues upon which no ruling was made. State v. Figeroa, 278 Neb 98, 767 N.W.2d 775 (2009).
The purpose of a prosecutorial appeal brought under this section is to provide an authoritative exposition of the law to serve as precedent in future cases. Thus, under this section, an appellate court determines whether authoritative exposition of the law is needed based upon the prosecuting attorney's application for leave to docket an appeal. And the scope of an appellate court's review under this section is limited to providing such an exposition. It is not the proper function of this section to have an appellate court render an advisory opinion on narrow factual issues regardless of whether the opinion may, or may not, have some marginal precedential value in the future. State v. Larkins, 276 Neb. 603, 755 N.W.2d 813 (2008).
Under this section, the State may request review of an adverse decision or ruling in a criminal case after a final order or judgment in the criminal case has been entered. The purpose of this procedure is to provide an authoritative exposition of the law to serve as precedent in future cases. State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999); State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996).
An order of the district court reversing a judgment of the county court in a criminal case, vacating the sentence, and remanding the cause for imposition of a sentence may be reviewed under this section. Pursuant to this section, "trial court" is merely a synonym for "district court." State v. Schall, 234 Neb. 101, 449 N.W.2d 225 (1989).
This statute does not permit review of issues upon which no ruling was made. State v. Jensen, 226 Neb. 40, 409 N.W.2d 319 (1987).
An order in a criminal case whereby the district court vacates a sentence and remands the cause for imposition of sentence in the county court is reviewable under this section. State v. Ziemba, 216 Neb. 612, 346 N.W.2d 208 (1984).
District court's ruling on motion to dismiss habitual criminal charge reviewed and reversed in error proceedings. State v. Nance, 197 Neb. 257, 248 N.W.2d 339 (1976).
Scope and purpose of review of proceedings hereunder is to provide authoritative exposition of the law as precedent in subsequent cases. State v. Jennings, 195 Neb. 434, 238 N.W.2d 477 (1976).
Error proceedings by the state may be had to review dismissal of prosecution for lack of sufficient evidence. State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967).
The right of the state to appeal is limited. State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965).
The purpose of appellate review under this section is to provide an authoritative exposition of the law for use as a precedent in similar cases which may now be pending or which may subsequently arise. State v. Rubek, 11 Neb. App. 489, 653 N.W.2d 861 (2002); State v. Wilen, 4 Neb. App. 132, 539 N.W.2d 650 (1995).
4. Miscellaneous
When a defendant challenges a sentence imposed by the district court as excessive and the State believes the sentence to be erroneous but has not complied with this section or section 29-2321, the State may not assert such error via a cross-appeal. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
In cases brought as error proceedings under this section, the good faith exception to the exclusionary rule applies to warrantless blood draws conducted prior to the U.S. Supreme Court's decision in Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).
In proceedings under this section, exceptions of state were sustained. State v. Ransburg, 181 Neb. 352, 148 N.W.2d 324 (1967).
Information attempting to charge disturbing the peace was tested under this section. State v. Coomes, 170 Neb. 298, 102 N.W.2d 454 (1960).