§ 29-2823 — Habeas corpus proceedings; review; procedure; bail pending appeal

Nebraska § 29-2823

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

The proceedings upon any writ of habeas corpus shall be recorded by the clerk and judges respectively, and may be reviewed as provided by law for appeal in civil cases. If the state shall appeal from a final order of a district court made upon the return of a writ of habeas corpus discharging a defendant in a criminal case, the defendant shall not be discharged from custody pending final decision upon appeal; Provided, said defendant may be admitted to bail pending disposition of said appeal as is otherwise provided by law.

Legislative History

Source: G.S.1873, c. 58, § 375, p. 809; R.S.1913, § 9269; Laws 1921, c. 168, § 1, p. 660; C.S.1922, § 10298; C.S.1929, § 29-2823; R.S.1943, § 29-2823; Laws 1947, c. 106, § 1, p. 296. Cross References: For appeals in civil cases, see sections 25-2728 to 25-2738. Annotations: 1. Civil nature of proceedings 2. Miscellaneous 1. Civil nature of proceedings The dismissal of a habeas corpus petition in the same action as a petition in error may be reviewed on appeal in the same manner as a civil case. Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021). Procedure on appeal in habeas corpus proceedings is the same as in civil cases. Neudeck v. Buettow, 166 Neb. 649, 90 N.W.2d 254 (1958). Proceedings may be reviewed as provided by law in civil actions. State ex rel. Miller v. Cavett, 163 Neb. 584, 80 N.W.2d 692 (1957). The doctrine of res judicata may be applied in habeas corpus proceedings. Williams v. Olson, 145 Neb. 282, 16 N.W.2d 178 (1944). Final orders in habeas corpus proceedings may be reviewed on appeal. The test of finality of order for purpose of appeal is whether particular proceeding or action is terminated by judgment. In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944). Proceedings for writ are civil in nature and under present statute can be brought to Supreme Court only by appeal. Writ is not allowed to correct errors of inferior tribunals. In re Application of Selicow, 100 Neb. 615, 160 N.W. 991 (1916). An appeal in a habeas corpus case is the same as that provided in a civil case. Graminea v. State, 206 F.Supp. 308 (D. Neb. 1962). 2. Miscellaneous It is implicit in this section that a prisoner released by a trial court's writ of habeas corpus may be directed to return to custody if the writ is reversed on appeal. Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007). The doctrine of credit for time erroneously at liberty, which holds that a prisoner is entitled to credit against his or her sentence for time spent erroneously at liberty due to the State's negligence, is not applicable to a release on bail pursuant to this section. Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007). This section is intended to balance the interests of the State and the prisoner in a habeas action by allowing the prisoner to ask for immediate release, yet permitting the State to effectively seek appellate review of a trial court's decision to grant the writ. Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007). State has right to bring error to reverse order discharging prisoner after conviction. Atwood v. Atwater, 34 Neb. 402, 51 N.W. 1073 (1892).