State v. Linn

Nebraska Supreme Court

State v. Linn

224 N.W.2d 539, 192 Neb. 798, 1974 Neb. LEXIS 795

CourtNebraska Supreme Court

DecidedDecember 26, 1974

Docket39569

StatusPublished

Cited by32 cases

This text of 224 N.W.2d 539 (State v. Linn) 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. Linn, 224 N.W.2d 539, 192 Neb. 798, 1974 Neb. LEXIS 795 (Neb. 1974).

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Opinion

Newton, J.

This is an error proceeding brought by a special deputy county attorney of Douglas County. The defendant was originally convicted of violations of the ordinances of the city of Omaha. A new trial was granted and the error proceeding was brought to test the correctness of the order granting a new trial. We affirm.

This proceeding must be dismissed for two reasons. First, a final order has not been entered. “Under the terms of section 29-2315.01, R. R. S. 1943, the right of the county attorney to review questions of law in criminal cases is limited to those cases in which a final order or judgment in the criminal case has been entered. ❖ * at

“An order sustaining a motion for a new trial is not an order by which the cause is terminated and finally disposed of.” State v. Taylor, 179 Neb. 42, 136 N. W. 2d 179.

In the second place, the only provision for appeal by the State in a criminal case is found in sections 29-2315.01 et seq., R. R. S. 4943. The authority to take error proceedings is limited to the county attorney. It is not extended to city attorneys nor to prosecutions involving the violation of city ordinances. A county attorney has no authority to prosecute city ordinance violations. See § 23-1201, R. R. S. 1943. His authority to bring error proceedings is limited to those cases in which he has been given the power to prosecute violations of the laws of the State of Nebraska. The appointment of a city attorney as a special deputy county attorney does not change the situation.

Appeal dismissed.

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Newton, J.

This is an error proceeding brought by a special deputy county attorney of Douglas County. The defendant was originally convicted of violations of the ordinances of the city of Omaha. A new trial was granted and the error proceeding was brought to test the correctness of the order granting a new trial. We affirm.

This proceeding must be dismissed for two reasons. First, a final order has not been entered. “Under the terms of section 29-2315.01, R. R. S. 1943, the right of the county attorney to review questions of law in criminal cases is limited to those cases in which a final order or judgment in the criminal case has been entered. ❖ * at

“An order sustaining a motion for a new trial is not an order by which the cause is terminated and finally disposed of.” State v. Taylor, 179 Neb. 42, 136 N. W. 2d 179.

In the second place, the only provision for appeal by the State in a criminal case is found in sections 29-2315.01 et seq., R. R. S. 4943. The authority to take error proceedings is limited to the county attorney. It is not extended to city attorneys nor to prosecutions involving the violation of city ordinances. A county attorney has no authority to prosecute city ordinance violations. See § 23-1201, R. R. S. 1943. His authority to bring error proceedings is limited to those cases in which he has been given the power to prosecute violations of the laws of the State of Nebraska. The appointment of a city attorney as a special deputy county attorney does not change the situation.

Appeal dismissed.

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Bluebook (online)

224 N.W.2d 539, 192 Neb. 798, 1974 Neb. LEXIS 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-linn-neb-1974.

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