State v. Hausmann

765 N.W.2d 219, 277 Neb. 819
CourtNebraska Supreme Court
DecidedMay 22, 2009
DocketS-07-1229
StatusPublished
Cited by200 cases

This text of 765 N.W.2d 219 (State v. Hausmann) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hausmann, 765 N.W.2d 219, 277 Neb. 819 (Neb. 2009).

Opinion

765 N.W.2d 219 (2009)
277 Neb. 819

STATE of Nebraska, appellee,
v.
Alecia M. HAUSMANN, appellant.

No. S-07-1229.

Supreme Court of Nebraska.

May 22, 2009.

*221 Patrick J. Boylan, Chief Deputy Sarpy County Public Defender, for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

Alecia M. Hausmann appealed from her conviction and sentence for being a minor in possession of alcohol, but the Nebraska Court of Appeals dismissed her appeal on jurisdictional grounds.[1] The issue presented in this petition for further review is whether a district court, sitting as an appellate court, has the authority to rehear an appeal.

BACKGROUND

Hausmann was charged by complaint in the county court with being a minor in possession of alcohol, a Class III misdemeanor.[2] Hausmann filed a motion to suppress, which the court overruled. The case proceeded to a bench trial on a stipulated record, preserving the motion to suppress and Hausmann's motion to dismiss for insufficient evidence. Hausmann was convicted of being a minor in possession and sentenced to pay a $250 fine. She appealed to the district court.

On September 10, 2007, the district court entered an order dismissing the appeal, because the record was inadequate for appellate review. The court noted that the county court transcript contained neither an order finding Hausmann guilty nor a sentencing order. And the court noted that Hausmann's praecipe for transcript had not requested those orders. Because the transcript did not contain the final judgment of the county court, the district court dismissed the appeal.

On September 28, 2007, Hausmann moved the district court to vacate the September 10 dismissal and permit the correction of the record through the filing of a supplemental transcript. The district court granted the motion on October 5 and vacated the September 10 dismissal order. On October 9, a supplemental transcript was filed containing the conviction and sentencing orders. On October 22, the district court entered an order affirming Hausmann's conviction and sentence on the merits. On November 21, Hausmann filed her notice of appeal to the Court of Appeals.

The Court of Appeals dismissed Hausmann's appeal as untimely filed. The court reasoned that if the district court lacked jurisdiction to vacate its order of September 10, 2007, then the September 10 order had been final and appealable. If Hausmann's motion to vacate did not toll the time for taking an appeal, then her November 21 notice of appeal was untimely. *222 The Court of Appeals found contradicting authority from this court regarding the district court's jurisdiction to rehear an appeal, but concluded that our more recent authority supported the conclusion that the district court had no power, when sitting as an appellate court, to rehear its decisions.[3]

Thus, the Court of Appeals concluded that the district court lost jurisdiction over the appeal when it entered the September 10, 2007, order. The court determined that the subsequent district court proceedings were a nullity and did not toll the time for Hausmann to file her notice of appeal. The Court of Appeals dismissed Hausmann's appeal,[4] and we granted her petition for further review.

ASSIGNMENT OF ERROR

Hausmann assigns, as restated, that the Court of Appeals erred in concluding it had no appellate jurisdiction.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law.[5]

ANALYSIS

The issue presented on further review, as discussed above, is whether the district court had jurisdiction to vacate its September 10, 2007, order dismissing Hausmann's appeal and decide the appeal on different grounds. The Court of Appeals found two lines of authority from this court relevant to that issue and was unable to reconcile them.[6]

The Court of Appeals first cited State v. Painter,[7] and Interstate Printing Co. v. Department of Revenue,[8] in which we held that a district court sitting as an intermediate court of appeals has the power to modify its previous final order. In Painter, as in this case, the defendant appealed from a criminal conviction in the county court, and the district court affirmed. But the district court's order misstated the sentences being affirmed, and the district court entered another order correcting the mistake.[9]

On appeal to this court, we rejected the defendant's argument that the district court lacked jurisdiction to enter the second order, noting that the district court was not the sentencing court, but was acting as an intermediate appellate court. We stated that the district court's second order was not an order nunc pro tunc, because it was caused by a misstatement by the judge, but that "[t]here was simply no error in the district court's modifying its earlier order...."[10] We explained that "just as the Supreme Court may, on a motion for rehearing, timely modify its opinion, an intermediate appellate court may also timely modify its opinion."[11]

But in In re Guardianship and Conservatorship of Sim,[12] we found no "authorization *223 for a motion for rehearing in such circumstances" and held that a motion for rehearing did not toll the time for further appeal. And more recently, in State v. Dvorak,[13] we decided that a district court sitting as an intermediate appellate court lacked subject matter jurisdiction to hear a motion for reconsideration after the entry of a final order, explaining that the second order was void and not appealable, because the district court was "divested of jurisdiction" upon issuing the first order. And most recently, in Goodman v. City of Omaha,[14] we held that where the district court was acting as an intermediate appellate court, a motion to alter or amend the judgment[15] did not toll the time for taking an appeal to a higher appellate court.[16]

The Court of Appeals explained that it was unable to reconcile these lines of authority. The court concluded that "[w]hile it would seem sensible that the district court, when it acts as an intermediate appellate court, should have the same ability to reconsider its own decisions ... as do the higher appellate courts," the more recent decisions of this court had concluded otherwise.[17] Thus, the Court of Appeals concluded that Hausmann's appeal was untimely and should be dismissed.

We recognize that this court's conflicting authority placed the Court of Appeals in a difficult position, and we find no fault with the Court of Appeals' conclusion that stare decisis compelled it to abide by its understanding of our more recent decisions. Vertical stare decisis compels lower courts to follow strictly the decisions rendered by higher courts within the same judicial system.[18] But we agree with the Court of Appeals' observation that a district court, acting as an intermediate appellate court, should have the ability to reconsider its own decisions. And we conclude that it does.

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Cite This Page — Counsel Stack

Bluebook (online)
765 N.W.2d 219, 277 Neb. 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hausmann-neb-2009.