State v. Parnell, 301 Neb. 774

Tracy N. Parnell, convicted of first-degree murder and related offenses, filed a pro se postconviction motion on July 12, 2017.
The district court dismissed the postconviction motion on August 17, 2017, and the clerk certified that a copy of the dismissal was mailed to Parnell.
Parnell claims he never received the dismissal order and therefore could not file a timely appeal; he filed a motion (March 16, 2018) to vacate/modify the judgment and requested a hearing to prove nonreceipt.
The district court denied Parnell’s motion to vacate without holding a hearing on March 21, 2018.
The State conceded on appeal that a hearing should have been held; the Nebraska Supreme Court reviewed whether the denial without hearing was error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by denying Parnell’s motion to vacate without a hearing where he alleged he never received the dismissal order	Parnell argued he did not receive the mailed order and needed a hearing to present evidence rebutting the presumption of mailing and official regularity	The State relied on the clerk’s certificate of mailing and presumptions that a properly mailed letter is received and public officers faithfully perform duties	The Court held the denial was error: Parnell’s allegation entitled him to a hearing to offer evidence rebutting the presumptions; remanded for hearing

State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (Neb. 2016) (prior decision affirming convictions)
Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (Neb. 1996) (presumption that mail properly addressed and stamped is received)
State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (Neb. 2005) (procedure when appeal lost due to official negligence)
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (Neb. 2005) (presumption of regularity in official acts)
Hotz v. Hotz, ? 917 N.W.2d 467 (Neb. 2018) (discussing related procedural presumptions)

Note: The Court reversed and remanded for an evidentiary hearing at which Parnell may present proof he did not receive the dismissal order.