In 1895 the United States Supreme Court held that the U.S. Constitution does not guarantee a right to appeal a criminal case from the trial court to an appellate court. Evitts v. Lucey, 469 U.S. 387 (1895). However, convictions from the trial courts in Nebraska can be appealed to an appellate court under state laws. The right to appeal a criminal case in Nebraska comes from two sources:
The appeals process begins with the filing of a notice of appeal. From there, the appeals process for a criminal case in Nebraska is fraught with procedural complexities that can be difficult to navigate. This is the first in a series of articles that will discuss the fundamentals of the appeals process for criminal appeals in Nebraska from beginning to end. This article provides a basic overview of the different appellate courts in Nebraska and the right to appellate counsel.
Nebraska’s Appellate Courts
There are three levels of appellate courts in Nebraska:
- District Court
- Nebraska Court of Appeals
- Nebraska Supreme Court
However, not all criminal appeals will be heard at each level. The path that an appeal takes through the appellate system depends on the nature of the conviction and which court the conviction originated from.
District Court as Intermediate Appellate Court
Nebraska Revised Statute § 25-1901 provides that criminal defendants can appeal county court convictions to the district court. The appellate court decides to either affirm the trial court decision or remand the case back to the trial court. The appellate court decision can then be appealed to a higher appellate court pursuant to Nebraska Revised Statute § 25-1912.
Criminal appeals from county court to district court require an additional step that is not required for other criminal appeals. Pursuant to the Nebraska Court Rules §§ 6-1452(A)(6) and 6-1518, the defendant MUST file a Statement of Errors within 20 days of the filing of the Bill of Exceptions with the district court acting as an intermediate appellate court.
Filing a statement of errors is a vitally important step that can be easily overlooked. While missing this step will not result in an automatic dismissal, it will limit the appellate court’s review of the case to plain error appearing on the record. Plain error review is often fatal to criminal appeals because it is a difficult standard to prove.
Court of Appeals & Supreme Court
Under Nebraska Revised Statute § 25-1911, most criminal appeals are taken from the District Court to the Court of Appeals. However, the Nebraska Supreme Court has exclusive jurisdiction over three types of criminal appeals:
- Appeal from a sentence of life imprisonment
- Appeal from a sentence of death
- Appeal challenging the constitutionality of a statute
See, Nebraska Revised Statute § 24-1106(1). All other criminal appeals are presumptively handled by the Court of Appeals, unless the Supreme Court elects to exercise its right of direct review. A party may petition the Supreme Court to exercise its right of direct review, or the Supreme Court may choose to do so on its own motion.
Right to Appellate Counsel
The U.S. Supreme Court held that in first appeals as of right, states must appoint counsel to represent indigent defendants as a matter of equal protection. Douglas v. California, 372 U.S. 353 (1963). While the U.S. Supreme Court clarified that the right to counsel for criminal appeals does not extend to discretionary appeals to a state’s highest court, the Nebraska Supreme Court acknowledged in dicta that the Nebraska Constitution likely provides broader appellate rights, but agreed the right to counsel on appeal abides with federal precedent. State v. Stewart, 242 Neb. 712 (1993).
We Represent Individuals Appealing a Criminal Conviction
Criminal appeals are procedurally complex and difficult to navigate. The assistance of competent legal counsel 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 we are prepared to analyze your case in order to determine the best course of action. Contact Berry Law today to discuss your case.
