Stacy , J. INTRODUCTION In 1991, Christopher M. Garza was convicted of first degree murder and use of a firearm during the commission of a felony. He was sentenced to life imprisonment on the murder conviction and was given a consecutive sentence of 6 2/3 to 20 years' imprisonment on the use conviction. In 2015, Garza was granted postconviction relief as a result of the U.S. Supreme Court's decision in Miller v. Alabama. 1 He was resentenced on the murder conviction to a term of 90 to...
Stacy , J. NATURE OF CASE Jennifer T. appeals from an order of the county court dismissing her complaint to intervene in an adoption proceeding and denying her request to stay the adoption. We conclude the county court lacked statutory authority to exercise subject matter jurisdiction over the adoption proceeding, and we thus vacate the order from which Jennifer appeals and remand the cause to the county court for further proceedings consistent with this opinion. BACKGROUND Lindsay P....
Heavican , C.J. INTRODUCTION Charles D. Bluett moved to transfer his case to juvenile court. That motion was denied. Bluett appeals. BACKGROUND Bluett was charged with robbery and use of a weapon to commit a felony. Because Bluett was 15 years of age at the time of the commission of the crimes charged, he moved to transfer his case to the separate juvenile court of Douglas County. That motion was denied. Bluett then filed this appeal. We granted Bluett's petition to bypass the Nebraska...
Per Curiam . The August 13, 2015, order of the district court for Lancaster County is affirmed by an equally divided court. AFFIRMED. Stacy, J., not participating.
Funke , J. NATURE OF CASE This matter commenced as a probate proceeding filed for the sole and limited purpose of collecting wrongful death benefits exclusively for the widow and next of kin of the decedent, Bruce F. Evertson, under Neb. Rev. Stat. 30-809 and 30-810 (Reissue 2016). Bruce was killed in a motor vehicle accident. The county court accepted a settlement from the insurer of the other driver for the wrongful death claim of the estate of Bruce F. Evertson (Estate) and...
Kelch , J. NATURE OF CASE Sydney L. Thieszen was 14 years old when he murdered his 12-year-old sister in 1987. Thieszen was convicted of first degree murder and sentenced to life imprisonment. In June 2013, Thieszen filed a motion for postconviction relief, alleging that his sentence was cruel and unusual punishment in light of the U.S. Supreme Court decision in Miller v. Alabama. 1 The district court granted Thieszen's motion, and the State appeals. BACKGROUND Thieszen was charged...
Cassel , J. INTRODUCTION Frantz G. Kolbjornsen appeals from a criminal case order denying relief under two different "speedy trial" statutes. 1 Because Kolbjornsen was a Nebraska prisoner at all relevant times, only one statute applied — the one governing intrastate detainers. 2 We conclude that the district court's determination that courtroom unavailability established good cause to extend the time in which to try Kolbjornsen was not clearly erroneous, and we affirm. BACKGROUND In...
Kelch , J. I. NATURE OF CASE This case presents the issue of whether the "active efforts" and "serious emotional or physical damage" elements of the federal Indian Child Welfare Act of 1978 (ICWA) 1 and the Nebraska Indian Child Welfare Act (NICWA) 2 apply to provide increased protection to the parental rights of a non-Indian, noncustodial parent of an "Indian child." II. FACTS Daniel H. and Linda H., the maternal grandparents and guardians of Micah H., a minor child, appeal the order...
Kelch , J. I. INTRODUCTION Following a jury trial, Rosario Betancourt-Garcia (Betancourt) appeals his convictions and sentences for kidnapping, use of a firearm to commit kidnapping, and conspiracy to commit kidnapping. On appeal, Betancourt alleges that the district court for Madison County erred in overruling his motion to quash, in overruling his motion for directed verdict, and in sentencing him for kidnapping. Further, Betancourt contends that he received ineffective assistance of...
Cassel , J. I. INTRODUCTION In this direct appeal, Peter Francis Draper challenges his convictions for intentional child abuse resulting in death and intentional child abuse resulting in serious bodily injury. He alleges that there was insufficient evidence to support either conviction, that improper opinion and rule 404 1 testimony was allowed into evidence, and that he received excessive sentences. Finding no merit in his arguments, we affirm. II. BACKGROUND Draper was convicted of...
Cassel , J. INTRODUCTION At the beginning of a juvenile adjudication hearing, the State moved to dismiss without prejudice two factual allegations of the petition. Instead, the juvenile court ordered those allegations dismissed with prejudice. Because the State was entitled to dismiss the allegations as a matter of right, the allegations should have been dismissed without prejudice. We modify the order accordingly. BACKGROUND On August 25, 2015, the State filed an amended petition...
Stacy , J. NATURE OF CASE This case requires us to determine which statutory appeal procedure the State must follow when it seeks to appeal from a district court's order under the Sex Offender Commitment Act (SOCA), 1 which authorizes appeals "in accordance with the procedure in criminal cases." 2 We conclude the general appeal procedure under Neb. Rev. Stat. 25-1912 (Reissue 2008) governs such appeals, and because the State did not perfect its appeal under that statute, we dismiss...
Miller-Lerman , J. I. NATURE OF CASE Jeffrey Hessler appeals the order of the district court for Scotts Bluff County which overruled his motion for postconviction relief and denied his petition for a writ of error coram nobis. Hessler claimed that he had received ineffective assistance of trial counsel and was not competent to enter the plea on which his conviction for first degree sexual assault on a child was based. We affirm. II. STATEMENT OF FACTS In 2003, Hessler pled no contest to...
Per Curiam . SUPPLEMENTAL OPINION Case No. S-15-695 is before this court on the appellants' motion for rehearing concerning our opinion in Bixenmann v. Dickinson Land Surveyors. 1 We overrule the motion, but we modify the original opinion as follows: We withdraw syllabus points 9 and 10. In the section of the opinion designated "ANALYSIS," 2 we withdraw the last two paragraphs and substitute the following: To address the Bixenmanns' contention that the allegedly negligent act involved...
Funke , J. NATURE OF CASE This matter commenced as a petition for dissolution of marriage between Clarence W. Devney and Elizabeth A. Devney. The district court dissolved the marriage between the parties and divided the parties' assets and debts. In doing so, the district court found that a postnuptial property agreement entered into by the parties was valid and enforceable and that the division of the marital estate was fair and reasonable. Elizabeth appeals from both of these findings....
Heavican , C.J. INTRODUCTION Larry G. Martinez was convicted of first degree murder and use of a weapon to commit a felony. He was sentenced to life imprisonment for the murder conviction and an additional 10 to 50 years' imprisonment for the use conviction, with credit for 1,149 days' time served. Martinez appeals. Primarily at issue are whether Martinez' statements to law enforcement should be suppressed as a result of Martinez' hearing impairment and whether Martinez was competent to...
Cassel , J. INTRODUCTION Two taxpayers sold their capital stock of a corporation and, in order to qualify for a special capital gains election, 1 structured the transaction to comply with the literal terms of a definitional statute. 2 The disallowance of the election was upheld below. In this appeal, we must decide whether either the "economic substance" doctrine or the "sham transaction" doctrine provided a basis to disallow the taxpayers' election. Because the statute is not open...
Miller-Lerman , J. NATURE OF CASE Richard Pester appeals the decision of the district court for Scotts Bluff County in which the court affirmed his convictions following a jury trial in Scotts Bluff County Court for driving under the influence (DUI) and refusal to submit to a chemical test, both second offenses. The county court had overruled Pester's motion to quash the charge of refusal to submit to a chemical test; Pester had argued that criminalizing refusal was a violation of the...
Stacy , J. NATURE OF CASE After a bench trial in the district court for Scotts Bluff County, Cody Olbricht, also known as Cody Olbrich, was convicted of knowing and intentional child abuse resulting in serious bodily injury. The Nebraska Court of Appeals reversed the conviction and vacated the sentence, holding the evidence was insufficient to support the conviction. 1 We granted the State's petition for further review. Because we conclude the evidence was sufficient to sustain the...
Stacy , J. Jason J. Boche was convicted of first degree sexual assault committed while he was a juvenile. He was sentenced to 1 year's imprisonment and was found to be subject to both lifetime sex offender registration and lifetime community supervision. Boche contends the lifetime requirements are cruel and unusual punishments because he was a juvenile when the offense was committed. We conclude neither lifetime requirement amounts to cruel and unusual punishment, and affirm the...
