§ 29-3002 — Postconviction relief; order; appeal; recognizance

Nebraska § 29-3002

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

An order sustaining or overruling a motion filed under sections 29-3001 to 29-3004 shall be deemed to be a final judgment, and an appeal may be taken from the district court as provided for in appeals in civil cases. A prisoner may, in the discretion of the appellate court and upon application to the appellate court, be released on such recognizance as the appellate court fixes pending the determination of the appeal.

Legislative History

Source: Laws 1965, c. 145, § 2, p. 487; Laws 1991, LB 732, § 87; Laws 1993, LB 652, § 2. Cross References: For appeals in civil cases, see sections 25-2728 to 25-2738. Annotations: An order overruling a motion for postconviction relief as to a claim is a "final judgment" as to such claim. State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018). An order ruling on a motion filed in a pending postconviction case, seeking to amend the postconviction motion to assert additional claims, is not a final judgment and is not appealable. State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018). An order denying an evidentiary hearing on a postconviction claim is a final judgment as to such claim under this section. State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009). An order ruling on a motion filed in a pending postconviction case seeking to amend the postconviction motion to assert additional claims is not a final judgment and is not appealable under this section. State v. Hudson, 273 Neb. 42, 727 N.W.2d 219 (2007). Appeal cannot be taken directly to Supreme Court from municipal court in post conviction proceeding. State v. Williams, 188 Neb. 802, 199 N.W.2d 611 (1972). State may appeal under this section although error proceedings under section 29-2315.01 are pending. State v. Carpenter, 186 Neb. 605, 185 N.W.2d 663 (1971). Appointment of counsel to appeal from denial of post conviction relief is properly refused when record and files show prisoner is entitled to no relief. State v. Gero, 186 Neb. 379, 183 N.W.2d 274 (1971). Failure to appeal decision within one month prevented Supreme Court from obtaining jurisdiction. State v. Pauley, 185 Neb. 478, 176 N.W.2d 687 (1970).