Zeleny v. State
298 Neb. 244
| Neb. | 2017Background
- Zeleny was charged in county court with DUI by breath (.08), with enhancement alleging .15.
- Pursuant to a plea agreement, the charge was orally amended at the plea hearing to DUI (.15 first offense); no written amended information was filed; Zeleny pled guilty.
- The factual basis at the plea hearing described a blood test showing BAC .297 and officer observations (odor, slurred speech, failed field tests).
- After plea but before sentencing, Zeleny moved in county court to arrest judgment, arguing the plea lacked a sufficient factual basis because the charging allegation referenced breath but the evidence was blood. The motion was denied.
- Zeleny filed in district court a petition for a writ of prohibition to restrain the county court from sentencing; the district court denied the writ. Zeleny appealed the district court’s denial.
Issues
| Issue | Zeleny’s Argument | State’s Argument | Held |
|---|---|---|---|
| Jurisdiction over county court’s denial of motion to arrest judgment | County court erred in denying motion to arrest judgment; appeal of that denial is proper | The denial of the county-court motion is not before this Court because the appeal is from the district court’s final order denying the writ | Court lacks jurisdiction to review county court’s denial—not part of the final order on appeal |
| Availability of writ of prohibition to prevent sentencing | Writ required because plea lacked factual basis: charging instrument alleged breath-based DUI but factual basis showed blood-based measurement | County court had authority to sentence; prohibition is extraordinary and unavailable because other adequate remedies exist | Denied writ: sentencing power not unauthorized; prohibition inappropriate because alternative remedies (withdraw plea, appeal after sentencing) exist |
Key Cases Cited
- State, ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937) (motion for writ of prohibition treated as an action)
- Conkling v. Delany, 167 Neb. 4, 91 N.W.2d 250 (1958) (describes function and limits of writ of prohibition)
- State of Nebraska ex rel. Line v. Kuhlman, 167 Neb. 674, 94 N.W.2d 373 (1959) (prohibition is preventative; error alone does not justify remedy)
- Line v. Rouse, 241 Neb. 779, 491 N.W.2d 316 (1992) (three-part test for issuance of prohibition)
- State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005) (appellate jurisdiction limited to the final order appealed from)