This is the third in a series of articles that will discuss the fundamentals of appealing a criminal conviction from the trial court to the appellate court in Nebraska from beginning to end. In our last article, we provided criminal appeal tips and covered the basics of perfecting a criminal appeal by meeting the jurisdictional requirements and filing the correct paperwork. This article will discuss the events that trigger the right to appeal from the trial court to the appellate court in a criminal case and other special considerations that may come up when filing a criminal appeal.
“Final Orders” and What is Appealable
Not every order issued in a criminal case is considered appealable. Under Nebraska Revised Statute § 25-1902, an order must be “final” to be appealable. Final appealable orders in the criminal context include the following:
- An order affecting a substantial right in an action, that, in effect determines the action and prevents a judgment;
- An order affecting a substantial right made during a special proceeding; and/or
- An order affecting a substantial right made on summary application in an action after a judgment is entered.
In the vast majority of criminal cases, the final judgment that triggers the right to appeal is the trial court’s sentencing order. However, there is a robust body of case law interpreting the statutory requirement that appeals be taken from “final” orders. Professor John Lenich’s law review article on this topic provides a historical perspective on the difficulties surrounding this doctrine. It is frequently cited by the Nebraska Supreme Court when interpreting these provisions and should be consulted if a unique situation arises. What’s so Special About Special Proceedings? Making Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239 (2001).
In some circumstances, a criminal appeal can be filed before a trial court’s sentencing order has issued. These types of appeals are called “interlocutory appeals.”
Interlocutory Appeals
In short, most criminal issues cannot be appealed until the end of the case. As noted above, the trial court’s sentencing order marks the end of a criminal case for appeal purposes. However, limited interlocutory appeals are recognized.
The Nebraska Supreme Court has allowed for an interlocutory appeal in the following circumstances:
- Statutory speedy trial motions when the ruling resolved the case,
- Competency determinations raised by the defendant, and
- Some plea in bar challenges.
The body of case law on interlocutory appeals makes it clear that determining whether an order is final and appealable is a fact-specific inquiry, and appellate court holdings can appear contradictory.
If you find yourself trying to determine whether an interlocutory appeal is necessary, it is important to read all relevant cases in detail with comparison to your facts to best predict the Court’s analysis. The Supreme Court’s recent opinions seem to distinguish between colorable claims and those deemed frivolous when evaluating whether a decision is final. See State v. Kelley, 305 Neb. 409 (2020); State v. Johnson, 22 Neb. App. 747 (2015). Appealing a claim deemed frivolous can permanently waive the defendant’s speedy trial rights. At the same time, failing to appeal a non-frivolous claim waives the issue because all claims must be pursued at their first meaningful opportunity, or risk waiver.
Special Consideration: Cases Involving Constitutional Questions
Sometimes a criminal appeal includes a challenge to the constitutionality of a state law. According to § 2-109(E) of the Nebraska Court Rules of Appellate Practice, the party challenging the constitutionality of a statute must file and serve a notice with the Supreme Court Clerk. Notice can be provided in one of two ways:
- By written notice, or
- By a Petition to Bypass when the party’s brief is filed.
If the Attorney General is not already a party to the action, a copy of the brief alleging the unconstitutionality of a statute must be served on the Attorney General within 5 days of filing the brief. The filing party must file proof of service with the Supreme Court Clerk. The Supreme Court will not consider any constitutional question not properly noticed, “except by special order of the Supreme Court, which may be issued at its discretion.” This language seems to imply a need for a motion requesting a special order, including a highly persuasive justification for failing to comply with the rule.
We Represent Individuals Appealing a Criminal Conviction
The criminal appeals process procedurally complex and difficult to navigate. The assistance of an experienced appellate attorney is essential in safeguarding your rights throughout the appeal process, from the trial court to the appellate court.
At Berry Law, we may be able to assist you in appealing your criminal conviction. We provide skillful, effective representation for accused persons throughout Nebraska, and an experienced appellate attorney is prepared to analyze your case in order to determine the best course of action. Contact Berry Law today to discuss your case.
