State v. Kelley

• Citation: 198 Neb. 805,255 N.W.2d 840
• Decision Date: 06 July 1977
• Docket Number: No. 41105,41105
• Parties: STATE of Nebraska, Appellee, v. Gilbert L. KELLEY, Appellant.
• Court: Nebraska Supreme Court

Page 840

255 N.W.2d 840

198 Neb. 805

STATE of Nebraska, Appellee, v. Gilbert L. KELLEY, Appellant.

No. 41105.

Supreme Court of Nebraska.

July 6, 1977.

Syllabus by the Court

1. A review by an appellate court of a final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law; and a period of limitation on a right of appeal accords with the United States Supreme Court's concept of proper procedure. If, however, by virtue of state statutory or constitutional provisions appeal is made a matter or right, the procedure pertaining thereto must accord with the concept of due process.

2. Limitations placed upon the time within which to perfect an appeal from a conviction in a criminal case do not violate the due process provisions of the Constitutions of the United States or of this state.

3. The requirement of filing a motion for a new trial within 10 days after the verdict, which motion must specify the claimed errors which justify a new trial, does not offend the provisions of Article I, section 23, of the Constitution of Nebraska, or the concepts of due process.

4. Sections 25-1143 and 29-2103, R.R.S.1943, are constitutional.

5. In cases where the trial court does not have power to correct its own errors as, e. g., in the case of excessive sentence, this court may on appeal consider such errors without them having been specified in the motion for a new trial.

James M. Tyler of Padley & Dudden, Ogallala, for appellant.

Paul L. Douglas, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

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

CLINTON, Justice.

The principal issue raised on this appeal and the one which is determinative hereof is whether the statutory requirements directing that a motion for new trial must be filed within 10 days "after the verdict . . . was rendered" are violative of the provisions of Article I, section 23, of the Nebraska Constitution, which provides in part: "In all cases of felony the defendant shall have the right of appeal to the Supreme Court"; or of the due process provisions of the Constitutions of the United States and the State of Nebraska. Specifically, the defendant argues that sections 25-1143 and 29-2103, R.R.S.1943, are unconstitutional. Both statutes contain similar provisions.

Apparently, the defendant's argument is that under the provisions of Article I, section 23, of the Nebraska Constitution, any procedural requirements which in any way conditions the extent of appellate review is unconstitutional. However, he cites no authority supporting this view.

Before resolving the issue, we will first summarize the factual background under which the case and issue arise. On July 7, 1976, the jury returned a verdict finding the defendant guilty of three counts of forgery. The verdicts were accepted by the court and filed on the same day. No motion for new trial was filed within 10 days after the verdict as provided by the pertinent statute. On October 4, 1976, following a pretrial investigation, the defendant was sentenced by the court on each count to terms of 11/2 to 3 years in the Nebraska Penal and Correctional Complex, the terms to be served concurrently. On October 4, 1976, the defendant filed a motion for a new trial and on October 5, 1976, he filed an amended motion for a new trial. The amended motion alleged the following grounds:

"1. That the verdict on all three Counts is contrary to the evidence.

"2. That the verdict on all three counts is contrary to the law.

"3. That the sentence is excessive.

"4. That the sentence is contrary to law.

"5. That the sentence is imposed with respect to matters not contained in the complaint or information and with respect to matters about which the Defendant was not tried.

"6. That the period of time between the judgment of the jury and the judgment of the Court denied the Defendant due process of law, constituted cruel and unusual punishment forbid by the U.S. Constitution, denied the Defendant his Sixth Amendment rights as provided by the U.S. Constitution, and violated the Defendants rights as granted by the Nebraska Constitution, Article I, sections: . . . 23."

On October 5, 1976, the trial court quashed grounds 1 and 2 and overruled the motion insofar as it pertained to the other grounds stated. On October 5, 1976, the defendant filed his notice of appeal.

It is first to be noted that the failure of a defendant in a criminal case to file a timely motion for a new trial does not prevent an appeal. Section 25-1912, R.R.S.1943, provides in part: "The proceedings to obtain a reversal, vacation or modification of judgments and decrees rendered or final orders made by the district court, including judgments and sentences upon convictions for felonies and misdemeanors under the criminal code, shall be by filing in the office of the clerk of the district court in which such judgment, decree or final order was rendered, within one month after the rendition of such judgment or decree, or the making of such final order, or within one month from the overruling of a motion for a new trial in said cause, a notice of intention to prosecute such appeal signed by the appellant or appellants or his or their attorney of record, and, except as otherwise provided in section 29-2306, by depositing with the clerk of the district court the docket fee required by law in appeals to the Supreme Court." Section 29-2306, R.R.S.1943, contains an exception, eliminating the necessity of payment of docket fees where the appeal is in forma pauperis. The failure to file a timely motion for a new trial does limit the scope of review in the Supreme Court by preventing us from reviewing trial errors not called to the attention of the trial judge by a motion for a new trial. Such motion need be only in the broad language of the provisions of section 25-1142, R.R.S.1943, except that specific attention must be called to errors in instructions. State v. Allen, 195 Neb. 560, 239 N.W.2d 272; State v. Lytle, 194 Neb. 353, 231 N.W.2d 681.

The defendant has assigned several errors, but we note here that it is necessary only for us to determine whether the errors here asserted (1) violate Article I, section 23 of the Nebraska Constitution, and (2) violate the due process clause of the Constitutions of this state and of the United States.

It should first be said that a review by an appellate court of a final judgment in a criminal case, no matter how grave the offense of which the accused is convicted, was not at common law, and is not...