State v. HallState v. Hall
- Reporters:
- , ,
- Before:
- Stephan
The State of Nebraska brought this error proceeding pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
Hall was arrested on January 3, 1991, and charged with the shooting death on Januаry 2, 1991, of George D. “Joe” Allan. Hall was charged with multiple counts which included first degree murder and use of a weapon in the commission of a felony. As the result of a plea agreement, on July 16, Hall entered a plea of guilty to second degree murder and use of а weapon in the commission of a felony; other pending charges against him were dismissed at that time. He was sentenced to life imprisonment on the second degree murder charge and 20 years’ imprisonment on the weapons charge. We affirmed the conviсtions and sentences in State v. Hall, 242 Neb. 92, 492 N.W.2d 884 (1992). Our opinion in that case sets forth a detailed statement of the facts pertinent to the shooting death of which Hall was convicted.
On February 16,1996, we held that Hall was entitled to post-conviction relief. We set aside both convictions and rеmanded the cause to the district court with directions for a new trial. State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996).
On May 20, 1996, an information was filed in the district court for Hall County charging Hall, аlleging in count I that Hall “purposely and with deliberate and premeditated malice killed George D. Allen aka Joe Allen” and in count II that Hall “used a firearm, knife, brass or iron knuckles, or any other deadly weapon to commit a felony offense, to-wit: used a handgun to commit the felony offense of Murder in the First Degree[.]” These charges are identical to counts I and II originally filed against Hall on Jаnuary 3, 1991.
In response to this information, Hall filed a demurrer pursuant to
*887 Defendant respectfully shows to the Court that the Defendant plead [sic] guilty and was found guilty of use of a firearm, knife, brass or iron knuckles, or any other deadly weapon to commit a felony offense, to-wit: Used a hand gun to commit the felony offense оf murder in the second degree.
An Opinion rendered on the 16th day of February, 1996, the Nebraska Supreme Court reversed and remanded for а new trial thereon.
. . . [T]he filing of the Second Amended Information alleging the crime changes the underlying felony to that of Murder in the First Degree. Said change alters one of the necessary elements the State must prove with regards to Count II.
It is therefore moved that [because] a necessary element has been changed by the State of Nebraska by filing the Amended Information, said prosecution of Count II is barred by the Statute of Limitations.
Following a hearing and submission of briefs, the district court entered an order on July 1, 1996, sustaining the demurrer based upon its finding that count II of the information was barred by the statute of limitations contained
The State subsequently perfected an error proceeding to the Nebraska Court of Appeals pursuant to
ASSIGNMENT OF ERROR
Restated, the State contends that the trial court erred in sustaining Hall’s demurrer to count II of the May 20, 1996, information based on the court’s determination that the charge contained therein was barred by the 3-year stаtute of limitations contained in
*888 SCOPE OF REVIEW
Before reaching the legal issues presented for review, it is the duty of an appellate cоurt to determine whether it has jurisdiction over the matter before it. See, State v. Wieczorek, ante p. 705, 565 N.W.2d 481 (1997); Trew v. Trew, ante p. 555, 567 N.W.2d 284 (1997).
ANALYSIS
During the pendency of this proceeding and after submission of thе parties’ briefs, we decided State v. Thieszen, ante p. 208, 560 N.W.2d 800 (1997), which involved a statute of limitations issue similar to that in this case. During oral argument in the case at bar, counsel for the State contended that Thieszen was controlling and compelled reversal of the district court’s order sustaining the demurrer to сount II of the operative information. Counsel for Hall contended that Thieszen was incorrectly decided and should be overruled.
We conclude that we cannot reach this issue beсause we lack jurisdiction over this matter. The record contains no order dismissing this action, and counsel for the parties confirmеd that it remains pending in the district court, awaiting the outcome of our review. We are not asked to review any aspect of the pending first degree murder count, but only the sustaining of the demurrer as to the weapons count.
In our recent decision in
State
v.
Wieczorek,
supra, we held that the State’s right to seek review of a ruling made during the prosecution of a criminal case is limited to the procedure set forth in
In
Wieczorek,
we held that because the State filed its application for review of the dismissal of three counts of a four-count information before the defendant had been sentenced on the оne count for which he was convicted, the application was filed before entry of a final order and was, therefore, untimеly and
*889
insufficient to confer appellate jurisdiction. We held that “an order entered during the pendency of a criminal cause is final only when no further action is required to completely dispose of the cause pending.”
Ante
at 710, 565 N.W.2d at 484. See, also,
State
v. Martinez, 198 Neb. 347, 354, 252 N.W.2d 630, 634 (1977) (“[t]he State’s right to appeal in сriminal cases is limited by
We have reviewed an order sustaining a demurrer in a criminal case only where it is dispositive of the entire case. See
State
v.
Buttner,
180 Neb. 529, 143 N.W.2d 907 (1966) (demurrеr sustained as to all counts of indictment and counts dismissed). See, also,
State v. Coomes,
170 Neb. 298, 102 N.W.2d 454 (1960) (demurrer sustained and cause dismissed). In this case, the district court’s order of July 1, 1996, sustained the demurrer to count II of the operative information but did not dismiss it, and it had no effect upon count I. The order did not cоmpletely dispose of the case and does not constitute a final order subject to review under
Appeal dismissed.
White, C.J., participating on briefs.