State v. Jacques

• Decision Date: 31 October 1997
• Docket Number: No. S-95-1291,S-95-1291
• Citation: 570 N.W.2d 331,253 Neb. 247
• Parties: STATE of Nebraska, Appellee, v. Thomas C. JACQUES, Appellant.
• Court: Nebraska Supreme Court

Page 331

570 N.W.2d 331

253 Neb. 247

STATE of Nebraska, Appellee, v. Thomas C. JACQUES, Appellant.

No. S-95-1291.

Supreme Court of Nebraska.

Oct. 31, 1997.

Syllabus by the Court

1. Jurisdiction. Subject matter jurisdiction cannot be conferred upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.

2. Jurisdiction: Judgments: Final Orders: Appeal and Error. Even though an extra-judicial act of a lower court cannot vest an appellate court with jurisdiction to review the merits of an appeal, the appellate court has jurisdiction and, moreover, the duty to determine whether the lower court had the power, that is, the subject matter jurisdiction, to enter the judgment or other final order sought to be reviewed.

3. Judgments: Final Orders: Time. Under Neb.Rev.Stat. § 25-1931 (Reissue 1995), proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced within 30 days after the making of the final order complained of.

4. Jurisdiction: Final Orders: Time: Appeal and Error. To vest an appellate court with jurisdiction, the notice of appeal must be filed within 30 days of the entry of the final order.

5. Final Orders. If an order is interlocutory, immediate appeal from the order is disallowed so that courts may avoid piecemeal review, chaos in trial procedure, and a succession of appeals granted in the same case to secure advisory opinions to govern further actions of the trial court.

6. Final Orders: Words and Phrases. A final order is defined as an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment.

7. Final Orders: Appeal and Error. There are three types of final orders which may be reviewed on appeal. The three types are (1) an order which affects a substantial right in an action and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.

8. Speedy Trial. If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, he shall be entitled to his absolute discharge from the offense charged and for any other offense required by law to be joined with that offense.

9. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing.

10. Actions: Words and Phrases. Where the law confers a right and authorizes a special application to a court to enforce the right, the proceeding is special, within the ordinary meaning of the term "special proceeding."

11. Actions: Words and Phrases. A special proceeding is, by definition, not part of an action. Rather, a special proceeding may be said to include every statutory remedy which is not in itself an action. An action involves prosecuting the alleged rights between the parties and ends in a final judgment, whereas a special proceeding does not.

Thomas M. Kenney, Douglas County Public Defender, and Stephen P. Kraft for appellant.

Don Stenberg, Attorney General, and Jay C. Hinsley for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WHITE, Chief Justice.

This is a criminal case involving two complaints filed by the State of Nebraska against appellant, Thomas C. Jacques. Jacques petitioned for further review to determine whether the denial of a motion to discharge for failure to provide a speedy trial is a final, appealable order which must be appealed within 30 days pursuant to Neb.Rev.Stat. § 25-1912(1) (Cum.Supp.1994). The Nebraska Court of Appeals held that the denial was appealable. We agree and affirm.

On November 17, 1994, an information was filed charging Jacques with two counts of assault in the second degree and two counts of use of a firearm to commit a felony. On March 13, 1995, a pretrial conference was held, and while this hearing was not recorded, Jacques' attorney indicated he would file a motion to suppress so as to toll Jacques' speedy trial right. The court's docket sheet indicated the case was set for a suppression hearing on June 2 and was also scheduled for a jury trial beginning on July 10. On March 14, the bailiff sent a letter to all parties, advising that the case was scheduled for jury trial on July 10.

On May 31, 1995, Jacques' attorney filed a "Motion to Suppress Statement and Notice" with a notice of hearing for the same day at 9 a.m. On that day, the motion to suppress a statement was heard without argument and overruled from the bench. Jacques' attorney indicated to the court that his motion to suppress had not been filed until May 31 "due to inadvertence" and that he "thought the motion was filed."

On June 9, 1995, Jacques' counsel filed a motion to discharge for lack of a speedy trial pursuant to Neb.Rev.Stat. § 29-1208 (Reissue 1995). This motion was heard by the court on June 12, taken under advisement, and overruled on June 27. On July 10, what appears to be a stipulated bench trial was held. All reports were offered into evidence by the State and, without objection, admitted. Neither party submitted arguments, and the case was taken under advisement by the court. At the end of the trial, Jacques' counsel renewed all his motions, including the motion to discharge.

On July 18, 1995, the district court for Douglas County found Jacques guilty of all charges. The court deferred sentencing pending a presentence investigation. On October 31, the court sentenced Jacques to 2 to 4 years' imprisonment on each of the four counts, for a total sentence of 8 to 16 years' imprisonment. The court ordered that all sentences be served consecutively and that credit be given for the 28 days already served.

On November 29, 1995, the Douglas County public defender's office perfected an appeal. Jacques claimed the district court erred in (1) overruling his motion to discharge because he was not brought to trial within 6 months pursuant to Neb.Rev.Stat. § 29-1207 (Reissue 1995), (2) failing to inform Jacques of his constitutional right to a jury trial, and (3) failing to obtain a waiver of this right before proceeding to a stipulated bench trial. The Court of Appeals declined to hear the speedy trial issue because the motion to discharge was a final, appealable order and Jacques failed to appeal within 30 days. The court also found that Jacques was entitled to a new trial because the district court failed to inform Jacques of his right to a jury trial and failed to obtain a waiver of that right. A petition for further review was filed on March 27, 1997. The State agrees on the propriety of that part of the opinion concerning a new trial, and it is not an issue here.

Jacques' sole assignment of error is that the Court of Appeals erred in determining that the denial of a motion to discharge is a final, appealable order, which required Jacques to file a notice of appeal within 30 days, which, in turn, by Jacques' failure to do so, divested the court of jurisdiction. See § 25-1912(1).

Subject matter jurisdiction cannot be conferred upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. Anderson v. HMO Nebraska, 244 Neb. 237, 505 N.W.2d 700 (1993). If the court from which an appeal was taken lacked jurisdiction, the appellate court acquires no jurisdiction. WBE Co. v. Papio-Missouri River Nat. Resources Dist., 247 Neb. 522, 529 N.W.2d 21 (1995).

Even though an extrajudicial act of a lower court cannot vest the appellate court with jurisdiction to review the merits of the appeal, the appellate court has jurisdiction and, moreover, the duty to determine whether the lower court had the power, that is, the subject matter jurisdiction, to enter the judgment or other final order sought to be reviewed. In re Interest of J.T.B. and H.J.T., 245 Neb. 624, 514 N.W.2d 635 (1994). When such a jurisdictional question arises, which does not involve a factual dispute, determination of the jurisdictional issue is a matter of law, which requires an appellate court to reach a conclusion independent from the trial court's conclusion on the jurisdictional issue. Payne v. Nebraska Dept. of Corr. Servs., 249 Neb. 150, 542 N.W.2d 694 (1996); Becker v. Nebraska Acct. & Disclosure Comm., 249 Neb. 28, 541 N.W.2d 36 (1995).

Under Neb.Rev.Stat. § 25-1931 (Reissue 1995), proceedings for reversing, vacating, or modifying judgments or final orders shall be commenced within 30 days after the making of the final order complained of. To vest an appellate court with jurisdiction, the notice of appeal must be filed within 30 days of the entry of the final order. State v Trevino, 251 Neb. 344, 556 N.W.2d 638 (1996). In contrast, if an order is interlocutory, immediate appeal from the order is disallowed so that courts may avoid piecemeal review, chaos in trial procedure, and a succession of appeals granted in the same case to secure advisory opinions to govern further actions of the trial court. See, State v. Bourke, 237 Neb. 121, 464 N.W.2d 805 (1991); State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965).

Neb.Rev.Stat. § 25-1911 (Reissue 1995) provides for appellate review of final orders. A final order is defined as "[a]n order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after...