State v. Paulsen, 304 Neb. 21

Defendant Larry Paulsen pled guilty to second-offense DUI; court sentenced him to 30 days jail and 24 months probation (journal entry Jan 16, 2018).
A February 22 order imposed standard probation conditions, including that Paulsen not “have nor associate with anyone who has possession of firearms, ammunition, or illegal weapons.”
Paulsen did not appeal his sentence or the probation terms. Six months into probation he filed a § 29-2263(3) motion asking the court to remove the firearms restriction.
The State did not object; the district court denied the motion without a hearing, finding the firearms condition a usual term and that Paulsen had not shown a material change in circumstances.
Paulsen appealed the denial; the Nebraska Supreme Court considered (1) whether the order was a final, appealable order and (2) whether the denial was erroneous on the merits, and ultimately affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appealability: Is denial of a § 29-2263(3) motion a final, appealable order?	Paulsen argued the denial was appealable as a post-judgment order affecting a substantial right.	State argued appellate jurisdiction was lacking because original sentence was not timely appealed.	Court held the denial is a final, appealable order under § 25-1902(3) as an order on a postjudgment motion affecting a substantial right.
Constitutional challenge: Does the firearms condition implicate a fundamental right requiring heightened scrutiny?	Paulsen argued the condition burdens the right to bear arms and thus must survive heightened scrutiny.	State (and court) noted Paulsen did not raise constitutional arguments below; thus issue waived.	Court declined to consider the constitutional challenge because it was not presented to the trial court.
Merits under probation statutes: Was the firearms restriction removable given Paulsen’s lack of violence history and compliance?	Paulsen argued the restriction was unrelated to his DUI conviction and rehabilitation, and his compliance justified removal.	State argued restrictions are permissible conditions and Paulsen failed to show a material change in circumstances arising during probation.	Court held § 29-2263(3) allows postjudgment modification for changed circumstances; Paulsen failed to show such a change and the district court did not err in denying relief.

State v. Thalmann, 302 Neb. 110 (discusses final-judgment and § 25-1902 standards)
State v. Coble, 299 Neb. 434 (defines "summary application in an action after judgment" as ruling on postjudgment motion)
State v. Rieger, 286 Neb. 788 (probation condition infringing a fundamental right reviewed for narrow tailoring and relation to rehabilitation)
State v. Volcek, 15 Neb. App. 416 (Ct. App. decision on waiver of jail term; discussed but distinguished)
State v. Dill, 300 Neb. 344 (explains objections to probation conditions should be raised at sentencing when possible)
State v. Marrs, 272 Neb. 573 (general rule limiting post-sentencing modification of criminal sentence)
Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943 (definition of "substantial right" as a legal right a party may enforce)