948 N.W.2d 736 (Neb. 2020), S-19-130, State v. Harris

Docket NºS-19-130, S-19-133.
Citation948 N.W.2d 736, 307 Neb. 237
Opinion JudgePapik, J.
Party NameSTATE of Nebraska, appellant and cross-appellee, v. Jack E. HARRIS, appellee and cross-appellant.
AttorneyDouglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for appellant. Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellee.
Judge PanelMiller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Moore and Welch, Judges. Heavican, C.J., and Freudenberg, J., not participating.
Case DateSeptember 25, 2020
CourtSupreme Court of Nebraska

Page 736

948 N.W.2d 736 (Neb. 2020)

307 Neb. 237

STATE of Nebraska, appellant and cross-appellee,

v.

Jack E. HARRIS, appellee and cross-appellant.

Nos. S-19-130, S-19-133.

Supreme Court of Nebraska.

September 25, 2020.

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1. Jurisdiction. A question of jurisdiction is a question of law.

2. Judgments: Appeal and Error. Appellate courts independently review questions of law decided by a lower court.

3. __:__. The construction of a mandate issued by an appellate court presents a question of law, on which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order or final judgment entered by the court from which the appeal is taken.

6. Final Orders: Appeal and Error. Among the three types of final orders which may be reviewed on appeal is an order affecting a substantial right made during a special proceeding.

7. Actions: Words and Phrases. An action involves prosecuting the alleged rights between the parties and ends in a final judgment, whereas a special proceeding does not.

8. Final Orders. Whether an order affects a substantial right depends on whether it affects with finality the rights of the parties in the subject matter.

9. __. Whether an order affects a substantial right depends on whether the right could otherwise effectively be vindicated.

10. Final Orders: Appeal and Error. An order affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review.

[307 Neb. 238] 11. Appeal and Error: Words and Phrases. In appellate procedure, a "remand" is an appellate court's order returning a proceeding to the court from which the appeal originated for further action in accordance with the remanding order.

12. Courts: Appeal and Error. After receiving a mandate, a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court.

13. Courts: Judgments: Appeal and Error. A lower court may not modify a judgment directed by an appellate court; nor may it engraft any provision on it or take any provision from it.

14. Judgments: Appeal and Error. No judgment or order different from, or in addition to, the appellate mandate can have any effect.

15. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court, any order attempting to do so is entered without jurisdiction and is void.

Appeals from the District Court for Douglas County: William B. Zastera and Jodi L. Nelson, Judges.

Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for appellant.

Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellee.

Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Moore and Welch, Judges.

Papik, J.

Two decades ago, following a jury trial, Jack E. Harris was convicted of first degree murder and use of a deadly weapon to commit a felony. His convictions were affirmed on direct appeal. As is often the case in such matters, years of litigation followed, in which Harris filed many motions collaterally attacking his convictions and sentences. After we remanded for further proceedings in an appeal involving such collateral attacks in 2017, the district court granted Harris' motion [307 Neb. 239] for new trial and, later, his motion for absolute discharge on speedy trial grounds. On the State's appeal from these orders, we conclude that the district court did not comply with our mandate in an earlier appeal and that its order granting Harris a new trial and absolute discharge were thus void. Accordingly, we vacate those orders and remand the cause for further proceedings.

I. BACKGROUND

1. CONVICTION, EARLIER PROCEEDINGS, AND APPEALS BY HARRIS

In 2000, following a jury trial, Harris was convicted of first degree murder and use of a deadly weapon to commit a felony. He was sentenced to life imprisonment on the murder conviction and 10 to 20 years' imprisonment on the weapons conviction, to be served consecutively. We affirmed on direct appeal. See State v. Harris, 263 Neb. 331, 640 N.W.2d 24 (2002) (Harris I).

Several unsuccessful motions and appeals by Harris followed. See State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004) (Harris II); State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007) (Harris III); State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015) (Harris IV); and State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017) (Harris V).

In Harris IV, we reversed the district court order that dismissed Harris' second postconviction motion, which had been filed simultaneously with a new trial motion and a motion for writ of error coram nobis. Harris' motions rested on allegations (1) that Howard "Homicide" Hicks, Harris' accomplice and a key witness in

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Harris' trial, disclosed to fellow inmate Terrell McClinton that Hicks had lied during his testimony and that Hicks alone, not Harris, had killed the victim; (2) that another witness, Curtis Allgood, generally corroborated McClinton's account and provided details placing Hicks near the crime scene at the time of the murder; and (3) that Harris was unaware of this information until McClinton's contact with [307 Neb. 240] Harris' attorney in 2006 and was prevented from discovering the information earlier because of misconduct by the prosecutor and the State's witness.

The district court had earlier granted Harris leave to file a third amended postconviction motion raising claims similar to the second motion's and additional claims concerning the State's plea agreement with Hicks. Although the court, the parties, and the evidence gave indications that the third amended postconviction motion was addressed at the subsequent June 28, 2013, hearing, Harris had not filed it. At the hearing, the district court announced that the matter was before the court on the third amended motion for postconviction relief and took judicial notice of the bill of exceptions for Harris' trial in 1999. The State did not assert that Harris had failed to file the third amended motion, but instead offered a copy of the motion and the court's docket entries showing that Harris had been given leave to file the motion. Harris presented evidence that was relevant only to his third amended motion for postconviction relief. Following the hearing, the district court's order expressly dismissed the second postconviction motion, and Harris appealed.

In Harris IV, we characterized the 2013 hearing as a hearing on the third amended postconviction motion. We held that "a court presented with a motion for postconviction relief which exists simultaneously with a motion seeking relief under another remedy must dismiss the postconviction motion without prejudice when the allegations, if true, would constitute grounds for relief under the other remedy sought." Harris IV, 292 Neb. at 191, 871 N.W.2d at 766. We determined that because the motion for new trial was time barred under the statute then in effect and because there was no possibility of obtaining relief through a writ of coram nobis, the district court erred in dismissing the motion for postconviction relief. See Neb. Rev. Stat. § 29-2103 (Reissue 2008). We remanded for consideration of "the postconviction motion" on the merits. Harris IV, 292 Neb. at 194, 871 N.W.2d at 768.

[307 Neb. 241] On remand, the district court did not conduct a new evidentiary hearing but considered the evidence presented at the 2013 evidentiary hearing. It denied postconviction relief, but given the matters addressed at the 2013 hearing, it was unclear whether the district court's order disposed of the second postconviction motion or the third amended postconviction motion involving similar and additional claims. The court's order, signed on March 3, 2016, referred to the "[s]econd" motion for postconviction relief and addressed claims raised only in the second motion. It stated that "[t]he matter came on for full evidentiary hearing on June 28, 2013." The court did not address Harris' claims regarding Hicks' plea agreement raised only in the third amended postconviction motion, but specifically ruled on his claims that the State suppressed information possessed by Allgood before Harris' trial and by McClinton before Harris' trial, direct appeal, or postconviction proceedings. Harris appealed, which led to our decision in Harris V.

In Harris V, we examined the record from the 2013 postconviction hearing and took judicial notice of our previous records and decisions in Harris' case. We determined that the district court properly denied

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relief on Harris' claim that the State suppressed evidence of McClinton's statements in his affidavit, but that it failed to apply the correct standard to Harris' claim that the State suppressed Allgood's statements at Harris' 1999 murder trial and failed to address Harris' claims from the third amended postconviction motion concerning the State's plea agreement with Hicks. We affirmed in part, and in part reversed and remanded for further proceedings to clarify which postconviction motion the court intended to rule on in the March 2016 order...

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1 practice notes
  • Gray v. Hubert, 030221 NECA, A-20-339
    • United States
    • Nebraska Court of Appeals of Nebraska
    • 2 Marzo 2021
    ...However, that period may be terminated by filing a motion to alter or amend within 10 days of the judgment. State v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020). A new period of 30 days for filing a notice of appeal commences when the terminating motion is ordered d......
1 cases
  • Gray v. Hubert, 030221 NECA, A-20-339
    • United States
    • Nebraska Court of Appeals of Nebraska
    • 2 Marzo 2021
    ...However, that period may be terminated by filing a motion to alter or amend within 10 days of the judgment. State v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020). A new period of 30 days for filing a notice of appeal commences when the terminating motion is ordered d......

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