When Can Prosecutors File a Criminal Appeal in Nebraska?

This is the fourth in a series of articles that will discuss the fundamentals of appealing a criminal conviction in Nebraska from beginning to end. So far, we have covered the right to appeal a criminal conviction and practical tips for perfecting a criminal appeal. This article will discuss the circumstances under which a prosecutor may appeal a decision in a criminal case that favors the defendant.

The general rule is that the State has no right to appeal an adverse ruling in a criminal case absent specific statutory authorization. State v. Penado, 282 Neb. 495 (2011). However, Nebraska statutes allow the State to appeal in three circumstances:

1. Exception/Error Proceedings,
2. Suppression Orders, and
3. Excessively lenient sentences.

Exception/ Error Proceedings

Nebraska Revised Statute §§ 29-2315 through 29-2322 provide limited authority for the State to bring “Error Proceedings.” These appeals are also called “Exception Proceedings” because section 29-2315.01 allows the prosecuting attorney to “take exception to any ruling or decision by the court made during the prosecution of the case” by following the very specific procedure required.

Exception proceeding results do not generally impact the Defendant whose case prompted the appeal, because of Double Jeopardy concerns. Instead, the appellate court’s decision only determines the law governing similar cases pending at the time of the decision or that arise afterward. However, under Neb. Rev. Stat. § 29-2316, this is only true if jeopardy had attached. Jeopardy attaches when the jury is impaneled and sworn, when evidence is heard by a judge during a bench trial, or at the time the trial court accepts the defendant’s guilty or no contest plea. State v. Kelley, 305 Neb. 409 (2020). Speedy trial discharge issues are an important example of an appeal that will affect the defendant because jeopardy has not yet attached. See, e.g., State v. Florea, 20 Neb. App. 185 (2012) (allowing remand when the State appealed an erroneous speedy trial discharge because jeopardy had not yet attached). See, also, State v. Thalken, 299 Neb. 857 (2018) (allowing remand when the district court sitting as an appellate court erred by suppressing evidence when the initial appeal was filed by the Defendant).

Suppression Orders

Nebraska statutes allow prosecutors to appeal two types of suppression orders:

• Orders suppressing statements, and
• Orders suppressing evidence/returning seized property.

Nebraska Revised Statute §§ 29-116 through 29-118 provide prosecutors the authority to appeal trial court orders suppressing statements deemed involuntary or in violation of the Fifth or Sixth Amendment to the U.S Constitution. County court suppression orders are appealed to the district court and district court suppression orders are appealed to the Court of Appeals.

District court suppression orders are reviewed by a single Court of Appeals judge “upon such notice briefs, and argument as the judge directs” and must be filed with the consent of the Attorney General. Neb. Rev. Stat. § 29-116(2). By contrast, county court suppression orders appealed to the district court do not require Attorney General consent.

Nebraska Revised Statute §§ 29-824 through 29-826 provide prosecutors the authority to appeal trial court orders suppressing evidence or granting a motion to return seized property. The procedures required are the same as with suppressed statements under §§ 29-116 through 29-118.

Excessively Lenient Sentences

Under Nebraska Revised Statute §§ 29-2320 through 29-2323, the prosecutor may also appeal any sentence imposed as excessively lenient. These appeals are to be based on a “reasonable belief, based on all the facts and circumstances of the particular case.” Section 29-2321 provides factors to consider when determining whether the standard is met.

The Nebraska Supreme Court has recognized two restrictions on appeals by the State alleging an excessively lenient sentence:

• The State cannot appeal a life sentence imposed when a capital defendant received life instead of death. State v. Rust, 247 Neb. 503 (1995).
• The State cannot cross-appeal from a defendant’s excessive sentence appeal without itself complying with the statutory requirements. State v. Guzman, 305 Neb. 376 (2020).

Practice Tip: Procedural Compliance is Jurisdictional

The statutory procedure for prosecutorial appeals is distinct from the typical procedure that defendants must follow. Prosecutorial appeals generally require a request for permission before proceeding, an earlier filing date, and the filing of specific documents. The failure to precisely comply with the state statutes governing prosecutorial appeals is typically considered jurisdictional. This means that the appeal can and will be dismissed if the State does not strictly comply with the statutory requirements.

It is critical for defense counsel to vigilantly examine the specific statutory procedure and the State’s efforts to comply in order to ensure jurisdiction is proper. See, e.g., State v. Warner, 290 Neb. 954, 958 (2015).

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.

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.