Interest of Wolkow, In re

• Decision Date: 24 June 1980
• Docket Number: No. 42683,42683
• Citation: 293 N.W.2d 851,206 Neb. 512
• Parties: In re Interest of Lisa WOLKOW, a child under 18 years of age.
• Court: Nebraska Supreme Court

Page 851

293 N.W.2d 851

206 Neb. 512

In re Interest of Lisa WOLKOW, a child under 18 years of age.

No. 42683.

Supreme Court of Nebraska.

June 24, 1980.

Syllabus by the Court

1. Sentences: Judgments: Appeal and Error. The imposition of a sentence in a criminal proceeding is essential to create a final judgment from which an appeal may be taken.

2. Convictions: Appeal and Error. A finding of guilty is a conviction, but it is not a judgment or final order, and there can be no appeal until a sentence has been imposed.

3. Convictions: Sentences: Appeal and Error. A decision in a criminal case is final for appellate purposes only when the litigation between the parties is terminated and nothing remains but enforcement by execution of what has been determined. To create finality in a criminal case, it is necessary that there be a judgment of conviction followed by a sentence.

4. Convictions: Sentences: Appeal and Error. In the absence of a sentence on a criminal contempt finding, the decision lacks the finality which would allow this court to review it.

5. Judgments: Appeal and Error. It is fundamental that there can be no appeal to this court until there has been a judgment or final order in the court from which the appeal is taken.

Paul L. Douglas, Atty. Gen., and Royce N. Harper, Asst. Atty. Gen., Lincoln, for appellant.

Thomas M. Kenney, Douglas County Public Defender, and Bennett G. Hornstein, Asst. Public Defender, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

This is an appeal by the State Department of Public Welfare from a finding of the Separate Juvenile Court of Douglas County, Nebraska, (per J. Patrick Mullen, Associate Juvenile Court Judge) that the Department of Welfare was in contempt of court for failing to place a minor status offender as ordered by the juvenile court. For reasons set out herein, we must find that no final order was entered by the juvenile court and, therefore, we are without jurisdiction to hear the appeal. Accordingly, we must dismiss the appeal.

This appeal raises a number of important and interesting questions, including how a court of limited jurisdiction, such as the Separate Juvenile Court, may require an executive agency of state government to prepare and submit to the juvenile court for its approval regulations required to be promulgated by the state agency, pursuant to state statute, where such approval by the juvenile court is neither authorized nor required. The authority for such action does, indeed, raise a serious question. Nevertheless on the state of the present record, this court is without jurisdiction to determine that issue, or any other issue raised by the appeal.

Although the juvenile court found the Department of Welfare in contempt of court, it did not, at any time, impose a sentence and, in fact, ultimately found that the Department of Welfare had purged itself of the alleged contemptuous action by preparing a plan which was approved by the juvenile court. We are, therefore, presented with an appeal in which no sentence has been imposed. In State ex rel. Beck v. Lush, 168 Neb. 367, 371, 95 N.W.2d 695, 698 (1959), we said:

Contempt, being without any particular form of action, is not subject to the limitations of procedure prescribed for the conduct of either civil or criminal actions. (Citation omitted.) However, we have often said that a prosecution for criminal contempt is governed by, and to be conducted in accordance with, the strict rules applicable in criminal prosecutions.

Likewise, for purposes of criminal contempt, we have frequently followed the strict rules applicable to criminal proceedings. See, Bahm v. Raikes, 200 Neb. 195, 263 N.W.2d 437 (1978); Paasch v. Brown, 199 Neb. 683, 260 N.W.2d 612 (1977); Malec v. Malec, 196 Neb. 533, 244 N.W.2d 82 (1976); Kasparek v. May, 174 Neb. 732, 119 N.W.2d 512 (1963); Muffly v. State, 129 Neb. 334, 261 N.W. 560 (1935). The question we must first answer herein is whether the lack of a sentence imposed in this case affects our right to assume jurisdiction of the appeal.

The final judgment in a criminal action is not the conviction but the sentence imposed thereon. In State v. Long, 205 Neb. 252, 253, 286 N.W.2d 772, 773 (1980), we recently said:

It is elementary that there can be no appeal except from a judgment or final order and that the judgment in a criminal case is the sentence. (Citations omitted.) A finding of guilty is a conviction, but it is not a judgment or final order, and there can be no appeal until a sentence has been imposed.

(Emphasis supplied.) To the same effect, see State v. Shaw, 202 Neb. 766, 277 N.W.2d 106 (1979). We are persuaded that the rationale which compels the imposition of a sentence before a criminal matter may be appealed should also be a part of a criminal contempt proceeding; and absent a sentence in a criminal contempt proceeding, no final judgment exists from which an appeal may be taken.

Other jurisdictions which have considered this issue have reached a similar conclusion and have held that the imposition of a sentence in a contempt proceeding is essential for a final judgment to have been rendered and an appeal permitted. In the case of West v. United States, 346 A.2d 504, 505 (D.C.App. 1975), the District of Columbia Court of Appeals said:

A decision in a criminal case is final for...