State v. Bartel, 308 Neb. 169

Background

Sept. 16, 2015: District court issued a domestic abuse protection order against Marc Bartel (limited contact allowed for child exchanges); Bartel acknowledged violations were arrestable.
Oct. 31, 2015: Bartel went to his ex-wife M.B.’s house to pick up children, approached the door contrary to the order, police arrested him for violating the protection order.
Oct. 7, 2016: A county court jury convicted Bartel of knowingly violating the protection order; sentence imposed.
June 5, 2017: In separate domestic-relations litigation, the parties stipulated and the district court entered an order stating the 2015 protection order was "void ab initio" and that M.B. would not object to Bartel moving for a new trial.
June 23, 2017: While his direct appeal was pending, Bartel moved for a new trial in the criminal case relying on the June 2017 stipulation as newly discovered evidence and alleging fraud and legal error; the county court denied the motion and the district court affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bartel)	Held
Timeliness of motion under § 29-2103(3) (10-day rule for grounds other than newly discovered evidence)	Bartel’s claims under § 29-2101(1) and (4) were filed more than 10 days after verdict and not justified by "unavoidably prevented."	The June 2017 order justified relief despite delay.	Motion was untimely as to § 29-2101(1) and (4); no showing of unavoidable prevention; those grounds ineffective.
Whether the June 2017 order is "newly discovered evidence" under § 29-2101(5)	The order was created after trial and thus is newly created/newly available, not newly discovered evidence of facts existing at trial.	The posttrial order retroactively nullified the protection order and should be treated as newly discovered evidence affecting the conviction.	Evidence must have existed at trial to be "newly discovered"; evidence created after trial does not satisfy § 29-2101(5); the June 2017 order is not newly discovered evidence.
Whether M.B.’s stipulation constitutes recantation/fraud that undermines prior testimony	The stipulation was part of civil settlement negotiations and does not show M.B. recanted her trial testimony or committed fraud.	The stipulation implies M.B. lied at the protection-order hearing and at criminal trial, amounting to fraud/recantation warranting a new trial.	Court found no explicit recantation or fraud; stipulation reflected negotiation in civil case and did not undermine prior testimony sufficiently to warrant a new trial.
Whether the June 2017 order rendered the 2015 protection order void ab initio with retroactive legal effect on the conviction	The district court lacked statutory authority to retroactively vacate the 2015 order because motions under § 25-2001(1) must be filed within six months and no fraud was shown.	The district court properly declared the protection order void ab initio, so the criminal conviction rested on no lawful order and must be vacated.	No statutory basis shown for retroactive vacation: § 25-2001(1) motions were untimely and fraud was not proven; the "void ab initio" language had no legal effect on the earlier criminal conviction.

Key Cases Cited

State v. Jackson, 264 Neb. 420 (Neb. 2002) (distinguishes newly discovered evidence from newly available evidence/witnesses)
State v. Krannawitter, 305 Neb. 66 (Neb. 2020) (explains two-prong burden for newly discovered evidence)
State v. Cross, 297 Neb. 154 (Neb. 2017) (timeliness for newly discovered-evidence motions: filed within a reasonable time)
State v. Avina-Murillo, 301 Neb. 185 (Neb. 2018) (defines "unavoidably prevented" and timeliness principles for new-trial motions)
State v. Price, 306 Neb. 38 (Neb. 2020) (standard of review for denial of new-trial motion after evidentiary hearing)
State v. Lotter, 278 Neb. 466 (Neb. 2009) (recanted testimony is notoriously unreliable and generally insufficient for new trial)