State v. Coleman, 43839
| Decision Date | 30 October 1981 |
| Docket Number | No. 43839,43839 |
| Citation | 311 N.W.2d 911,209 Neb. 823 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Burley C. COLEMAN, Appellant. |
Syllabus By the Court
1. Indictments and Informations: Appeal and Error. An information first questioned on appeal must be held sufficient unless it is so defective that by no construction can it be said to charge the offense for which the accused was convicted.
2. Indictments and Informations. A complaint or information is fatally defective only if its allegations can be true and still not charge a crime.
3. Indictments and Informations: Waiver. The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue.
Thomas M. Kenney, Douglas County Public Defender, and Bennett G. Hornstein, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., and Ruth Anne E. Galter, Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The appellant, Burley C. Coleman, appeals from a judgment and order of the District Court for Douglas County, Nebraska, finding him guilty of attempted robbery and sentencing him to a term of 5 to 7 years in the Nebraska Penal and Correctional Complex. In seeking reversal of his conviction Coleman claimed that the amended information to which he entered a plea of nolo contendere failed to charge him with all of the essential statutory elements of attempted robbery and was therefore fatally defective.
Coleman's argument is indeed ingenious, and if the appeal is examined in a vacuum, as counsel would have us do, one might reach the conclusion urged by Coleman. An appeal of this nature, however, is not to be examined in a vacuum, but rather in light of all of the filings and proceedings in the case. When that is done it becomes apparent that the claim is without merit and must be rejected and the judgment and sentence affirmed.
Coleman was originally charged in a four-count information. Count I charged that on December 21, 1979, Coleman "did then and there forcibly, and by violence or by putting in fear, take money from Christine Daluge, with the intent to steal." Count II claimed that he used a firearm to commit the felony described in count I. Count III charged that on December 21, 1979, Coleman "did then and there attempt to forcibly and by violence, or by putting in fear, attempt to take money from McDonald's Restaurant with the intent to steal." (Emphasis supplied.) Count IV charged Coleman with using a firearm to commit the felony set out in count III. A preliminary hearing was held in the municipal court for the city of Omaha and Coleman was bound over to the District Court for Douglas County on all four counts.
In the District Court Coleman filed a plea in abatement, maintaining that the evidence in the municipal court was insufficient to support a finding of probable cause to believe that a crime was committed. Based upon a review of the entire record made in the municipal court, the trial court overruled the plea in abatement. Thereafter, on July 16, 1980, Coleman appeared in the District Court with his attorney and, pursuant to a plea bargain, entered a plea of nolo contendere to a single count of robbery, the State agreeing to dismiss the other charges. For reasons which the record does not disclose, counts I, II, and IV were dismissed and count III was retained as the count to which Coleman entered his plea of nolo contendere. Count III charged that Coleman did, on December 21st, "forcibly and by violence, or by putting in fear, attempt to take money from McDonald's Restaurant with the intent to steal." It is by reason of that amended information to which Coleman entered a plea of nolo contendere that he now contends the charges should be dismissed. His argument is simply that the amended information fails to set out all of the essential elements of robbery, in violation of Neb.Rev.Stat. § 28-324 (Reissue 1979), in that the information fails to disclose the name of the person against whom the crime was committed. Under the provisions of the Nebraska robbery statute, § 28-324, a person commits robbery if, (1) with the intent to steal, (2) he forcibly and by violence, or by putting in fear, (3) takes from the person of another any money or personal property of any value whatever.
Coleman argues that because the amended complaint contained only the name "McDonald's Restaurant" and not the employee's name, one of the essential elements of the crime of robbery was omitted and the complaint is fatally defective to the extent that a subsequent plea does not constitute a waiver. While it is true, as urged by Coleman, that we have held that defects or omissions in the indictment or information which are of such a fundamental character as to make the indictment wholly invalid are not subject to waiver (see In re Interest of Durand, 206 Neb. 415, 293 N.W.2d 383 (198...
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State v. Davis
...indictment wholly invalid are not subject to waiver" and thus may be challenged for the first time on appeal. State v. Coleman , 209 Neb. 823, 825-26, 311 N.W.2d 911, 912 (1981). As we will explain below, however, only a limited category of defects or omissions meet this standard. An inform......
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State v. Stranghoener, 81-731
...plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional, citing State v. Coleman, 209 Neb. 823, 311 N.W.2d 911 (1981), and State v. Country, 202 Neb. 509, 276 N.W.2d 110 (1979). It is only where a defendant maintains that his guilty plea was ......
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Peterson v. Houston
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State v. Paulson, 81-730
...guilty plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional. State v. Coleman, 209 Neb. 823, 311 N.W.2d 911 (1981); State v. Country, 202 Neb. 509, 276 N.W.2d 110 An examination of the record convinces us that the grounds urged by defendan......