State v. Greer, 309 Neb. 667

Kenneth Greer pled no contest to second degree assault (Class IIA) after a high-speed, alcohol-involved crash; a related DUI causing serious injury charge was dismissed under a plea agreement.
Greer’s vehicle data showed he was traveling 67 mph in a 25 mph zone; his blood alcohol content was .311. A 6-year-old passenger suffered traumatic injuries and became partially paralyzed.
PSR documented Greer’s substance-history, two prior DUI convictions, a felony drug conviction, poor probation performance, and recommended a straight term of incarceration.
At sentencing the court considered the PSR and victim impact, and imposed 19–20 years’ imprisonment (within the statutory maximum of 20 years).
Greer’s first notice of appeal included an in forma pauperis affidavit notarized with an expired commission; that appeal was dismissed by stipulation. Greer timely filed a second, properly perfected appeal.
Greer challenged his sentence as excessive, arguing the district court failed to adequately consider mitigating factors (age, education/mentality, criminal history, and offender-specific circumstances).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the appellate court has jurisdiction over Greer’s second appeal after dismissal of his first attempt	State: First appeal was never perfected due to defective poverty affidavit; second timely, proper filing perfects appeal and confers jurisdiction	Greer: (implicit) earlier dismissal could operate as affirmance/res judicata or otherwise affect refiled appeal	Court: No jurisdiction ever attached to the first attempt; dismissal was a nullity; the second, properly perfected appeal established jurisdiction and was considered
Whether the 19–20 year sentence is excessive / whether the district court failed to consider mitigating factors	State: Sentence is within statutory limits; court considered PSR and relevant factors and did not abuse discretion	Greer: Court failed to adequately tailor sentence to him (age, mentality, education, history) and focused only on the crime	Court: Affirmed sentence; district court considered appropriate factors (via PSR and observations) and did not abuse its discretion

L. J. Vontz Constr. Co. v. City of Alliance, 243 Neb. 334, 500 N.W.2d 173 (discusses rule that dismissal of a properly perfected appeal without merits operates as an affirmance)
In re Estate of Marsh, 145 Neb. 559, 17 N.W.2d 471 (same rule on dismissal operating as affirmance when appeal was perfected)
State v. Melton, 308 Neb. 159, 953 N.W.2d 246 (explains perfection requirements for in forma pauperis criminal appeals)
State v. Gray, 307 Neb. 418, 949 N.W.2d 320 (articulates abuse-of-discretion standard for sentencing review)
State v. Miller, 240 Neb. 297, 481 N.W.2d 580 ("nothing comes from nothing" principle regarding lack of jurisdiction when appeal is not perfected)
State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (district court not required to articulate on the record consideration of each sentencing factor)