869 N.W.2d 383
Neb. Ct. App.2015Background
- Garden County District Court granted Edward E. Hood’s motion to suppress evidence on Feb. 27, 2015; the State sought appellate review.
- The State filed a timely notice of intent to appeal on Mar. 4, 2015 under Neb. Rev. Stat. §§ 29-824 to 29-826, and filed its application for review (with AG consent) on Apr. 1, 2015.
- Statute required the application to be accompanied by a copy of the suppression order and "a bill of exceptions containing all of the evidence" within 30 days of the suppression order (i.e., by Apr. 3).
- The State filed a praecipe for a bill of exceptions and represented it would be attached, but the actual bill of exceptions was not filed with the Court of Appeals clerk until Apr. 7, 2015 (sent by the court reporter by e-mail at 5:11 p.m.).
- The Court of Appeals issued a show-cause order; the court reporter averred she believed she had seven weeks to prepare the bill of exceptions and thus filed late.
- The majority held the late filing deprived the court of jurisdiction and dismissed the State’s appeal; a dissent argued the reporter’s official neglect should not defeat jurisdiction under controlling precedent.
Issues
| Issue | State's Argument | Hood's Argument | Held |
|---|---|---|---|
| Whether the State’s failure to file the bill of exceptions by the 30‑day statutory deadline divests the Court of Appeals of jurisdiction | The State argued it timely filed notice and application; late filing was caused by the court reporter and should not defeat review | The suppression of evidence order was not properly presented because the bill of exceptions was not filed by the statutory deadline, so appeal is untimely | Held: Dismissed for lack of jurisdiction because the State did not file the bill of exceptions by the statutory deadline (Apr. 3) and misunderstanding by the court reporter does not excuse the State’s responsibility |
| Whether official (court reporter) neglect can excuse statutory filing deadlines for appeal perfection | State (in dissent) relied on precedent excusing appellant where official charged with mandatory duty caused delay | Majority: the appealing party must timely file required documents; reliance on reporter’s mistake does not relieve obligation | Held: Majority rejected excuse; dissent argued precedent supports excusing delay caused solely by court official, but majority prevailed |
Key Cases Cited
- State v. Wieczorek, 252 Neb. 705, 565 N.W.2d 481 (Neb. 1997) (general rule that State has no right to appeal in criminal cases absent statutory authorization)
- State v. Ritz, 17 Neb. App. 589, 767 N.W.2d 809 (Neb. Ct. App. 2009) (timeliness of appeal is jurisdictional)
- Larson v. Wegner, 120 Neb. 449, 233 N.W. 253 (Neb. 1930) (appellant not deprived of appeal where delay is solely due to neglect of official charged with preparing transcript)
- Marcotte v. City of Omaha, 196 Neb. 217, 241 N.W.2d 838 (Neb. 1976) (failure of public official to furnish transcript may not defeat appeal when appellant timely filed petition)
- Liljehorn v. Fyfe, 178 Neb. 532, 134 N.W.2d 230 (Neb. 1965) (official’s failure of mandatory statutory duty does not destroy right to appeal)
- Cheney v. Buckmaster, 29 Neb. 420, 45 N.W. 640 (Neb. 1890) (appellant relying on prompt preparation of transcript by judge is not deprived of appeal when judge’s failure causes delay)
- Geller v. Elastic Stop Nut Corp., 147 Neb. 330, 23 N.W.2d 271 (Neb. 1946) (failure to timely file transcript prevented jurisdiction where no showing official caused delay)