State v. Johnson

613 N.W.2d 459, 259 Neb. 942, 2000 Neb. LEXIS 166
CourtNebraska Supreme Court
DecidedJuly 7, 2000
DocketS-99-991
StatusPublished
Cited by16 cases

This text of 613 N.W.2d 459 (State v. Johnson) 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. Johnson, 613 N.W.2d 459, 259 Neb. 942, 2000 Neb. LEXIS 166 (Neb. 2000).

Opinion

Gerrard, J.

INTRODUCTION

Pursuant to Neb. Rev. Stat. § 29-2315.01 (Reissue 1995), the State attempts to take exception to a decision of the district court for Douglas County, which sustained the motion for absolute discharge of Brandon R. Johnson regarding a two-count criminal information filed against him. For the reasons stated herein, we dismiss the State’s exception for want of jurisdiction.

BACKGROUND

On March 18, 1998, while in custody of the Nebraska Department of Correctional Services, Johnson was involved in an altercation with a number of correctional officers. The altercation arose from an incident in which a correctional officer attempted to place handcuffs on Paul M. Gilpatrick, another inmate. When Gilpatrick attempted to break loose from the correctional officer, the officer executed a wristlock takedown and took Gilpatrick to the ground in an attempt to regain control of the situation. While holding Gilpatrick down, the correctional officer was allegedly assaulted by Johnson.

On March 20, 1998, a criminal complaint was filed in the county court for Douglas County in which Johnson was charged with first degree assault on an officer, a Class II felony, and third *944 degree assault on an officer, a Class IV felony. A preliminary hearing was held on April 8 to determine whether Johnson should be bound over to district court to stand trial. On that same day and as part of the same proceeding, a preliminary hearing was also held in regard to a complaint filed against Gilpatrick, in which he was charged with assault on an officer in the third degree, a Class IV felony, and aiding and abetting an assault on an officer in the first degree. The county court found probable cause to bind both Johnson and Gilpatrick over for trial in the district court.

On April 8, 1998, an information was filed in the district court for Douglas County in which Johnson was charged with the same two offenses charged in the criminal complaint of March 20. Johnson entered a plea of not guilty, subject to a plea in abatement in which he asserted that the assault charges should be dismissed as a matter of law because there was insufficient evidence adduced at the preliminary hearing to support a finding of probable cause that he had committed the offenses alleged in the information. Gilpatrick also filed a plea in abatement on the same day as Johnson, in which he asserted that the assault charges against him should likewise be dismissed. Gilpatrick’s attorney and Johnson’s attorney subsequently agreed that one bill of exceptions from the preliminary hearing would be submitted to the district court in regard to consideration of both pleas in abatement. This bill of exceptions was then obtained by Gilpatrick’s attorney and submitted to the district court on May 21. The cover of the bill of exceptions stated that it was a statement of the proceedings in the Douglas County Court in the cases of State v. Paul M. Gilpatrick, case No. CR98-7636, and State v. Brandon R. Johnson, case No. CR98-7626.

On May 13, 1999, without ever having received a ruling on his plea in abatement, Johnson filed a motion to discharge him of the offenses charged in the April 8, 1998, information on the grounds that his statutory and constitutional rights to a speedy trial had been violated by the State’s failure to bring him to trial within 6 months of filing the information. Thereafter, a different district judge was assigned to the case; the judge conducted a hearing on the matter and on June 28,1999, sustained Johnson’s motion for discharge based on speedy trial grounds.

*945 The State filed the instant application for leave to take exception to the decision of the district court pursuant to § 29-2315.01.

ASSIGNMENTS OF ERROR

The State contends that the district court erred in (1) granting Johnson’s motion to discharge because delay due to a court’s disposition of a plea in abatement is statutorily excluded from the State’s time limit to bring a defendant to trial and (2) granting Johnson’s motion to discharge because the State is not responsible for delays caused by Johnson’s own action or inaction.

STANDARD OF REVIEW

A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court’s decision. Hron v. Donlan, ante p. 259, 609 N.W.2d 379 (2000).

ANALYSIS

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. In re Interest of Dustin H. et al., ante p. 166, 608 N.W.2d 580 (2000). Jurisdictional questions can be raised by the Nebraska Supreme Court sua sponte. State ex rel. NSBA v. Krepela, ante p. 395, 610 N.W.2d 1 (2000).

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. Baird, 238 Neb. 724, 472 N.W.2d 203 (1991). Section 29-2315.01 thus grants the State the right to seek Supreme Court review of adverse criminal rulings such as those involved in this case, and specifies the special procedure by which to obtain such review. State v. Wieczorek, 252 Neb. 705, 565 N.W.2d 481 (1997). “Under [§ 29-2315.01], the general appeal statute does not come into play until there has been compliance with the special requirements of § 29-2315.01.” State v. Baird, 238 Neb. at 726, 472 N.W.2d at 205. Because this appeal is the result of the State’s seeking leave to take exception to the district court’s order pursuant to § 29-2315.01, our pre *946 liminary inquiry is whether the mandatory requirements of § 29-2315.01 have been met, thereby conferring jurisdiction upon this court to decide the merits of the issues raised in the State’s exception.

Section 29-2315.01 provides:

The county 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 docket 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 county attorney as to the part of the record he or she proposes to present to the appellate court.

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Bluebook (online)
613 N.W.2d 459, 259 Neb. 942, 2000 Neb. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-neb-2000.