§ 29-2317 — Notice of intent to appeal to district court; procedure

Nebraska § 29-2317

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1) A prosecuting attorney may take exception to any ruling or decision of the county court made during the prosecution of a cause by presenting to the court a notice of intent to take an appeal to the district court with reference to the rulings or decisions of which complaint is made.
(2) The notice shall contain a copy of the rulings or decisions 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 district court. The notice shall be presented to the court within twenty days after the final order is entered in the cause. If the court finds it is in conformity with the truth, the judge shall sign it and shall indicate thereon whether, in his or her opinion, the part of the record which the prosecuting attorney proposes to present to the district court is adequate for a proper consideration of the matter.
(3) The prosecuting attorney shall then file the notice in the district court within thirty days from the date of final order and within thirty days from the date of filing the notice shall file a bill of exceptions covering the part of the record referred to in the notice. Such appeal shall be on the record.

Legislative History

Source: Laws 1975, LB 130, § 1; Laws 1984, LB 13, § 70; Laws 1987, LB 33, § 6; Laws 2003, LB 17, § 13. Cross References: Appeals from county court, see section 25-2728. Appeals from juvenile court, see section 43-2,106.01. Annotations: 1. Juvenile cases 2. Miscellaneous 1. Juvenile cases The plain language of section 43-2,106.01(2)(d) carves out an exception for delinquency cases in which jeopardy has attached. In such cases, the county attorney is limited to taking exception pursuant to the procedures of this section and sections 29-2318 and 29-2319. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010). Under section 43-2,106.01(2)(d), when a county attorney files an appeal "in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy," the appeal must be taken by exception proceedings to the district court pursuant to this section and sections 29-2318 and 29-2319. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010). Separate juvenile courts are treated as county courts under this section and sections 29-2318 and 29-2319 for the purpose of exception proceedings under subsection (2)(d) of section 43-2,106.01. In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006). Reference to the county court in sections 29-2317 to 29-2319 also applies to the separate juvenile court. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012). 2. Miscellaneous This section requires exception to a county court judgment to be taken to the district court sitting as an appellate court. Specifically, the prosecuting attorney is to file a notice of appeal in the county court, then file the notice in the district court within 30 days. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010). The district court lacked subject matter jurisdiction and thus properly dismissed the State's appeal of a criminal prosecution brought pursuant to this section, where, before filing notice of its intent to appeal to the district court, the State voluntarily dismissed the case in the county court. State v. Dorcey, 256 Neb. 795, 592 N.W.2d 495 (1999). Grant of right to prosecuting attorney to appeal a decision of municipal or county court does not repeal by implication the authority of the prosecuting attorney to refile in county court or to file directly in a district court. State v. Rubek, 220 Neb. 537, 371 N.W.2d 537 (1985). This section provides no means of appeal for a defendant who has previously been placed in jeopardy since a proceeding under this section cannot subsequently affect that defendant's rights. State v. Sports Couriers, Inc., 210 Neb. 168, 313 N.W.2d 447 (1981). Where a previously announced sentence has been subsequently modified, the prosecuting attorney may appeal. State v. McDermott, 200 Neb. 337, 263 N.W.2d 482 (1978). The docket fee requirement in section 25-2729 applies to exception proceedings under this section, section 29-2318, and section 29-2319. State v. Graham, 32 Neb. App. 747, 5 N.W.3d 210 (2024). Sections 29-2317 to 29-2319 outline exception proceedings which allow prosecuting attorneys to take exception to any ruling or decision of the county court by presenting to the court a notice of intent to take an appeal to the district court. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012). The language of this section requires the appeal of a county court judgment to the district court sitting as an appellate court. In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 (2012). Pursuant to subsection (2) of this section, to obtain review of a county court's decision in a criminal case, the State must present both the required notice of appeal and a copy of the ruling complained of to the county court. Failure to include a copy of the ruling or decision complained of is a jurisdictional defect. State v. Steinbach, 11 Neb. App. 468, 652 N.W.2d 632 (2002).