State v. Vela

• Decision Date: 08 September 2006
• Docket Number: No. S-06-595.,S-06-595.
• Citation: 272 Neb. 287,721 N.W.2d 631
• Parties: STATE of Nebraska, appellee, v. Erick Fernando VELA, appellant.
• Court: Nebraska Supreme Court

Page 631

721 N.W.2d 631

272 Neb. 287

STATE of Nebraska, appellee, v. Erick Fernando VELA, appellant.

No. S-06-595.

Supreme Court of Nebraska.

September 8, 2006.

COPYRIGHT MATERIAL OMITTED

James R. Mowbray and Jeffery A. Pickens, Lincoln, of Nebraska Commission on Public Advocacy, and Mark Albin, Norfolk, for appellant.

Jon Bruning, Attorney General, and J. Kirk Brown, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

The defendant, Erick Fernando Vela, took the above-captioned appeal from an order of the Madison County District Court overruling his "Amended Verified Motion to Preclude Imposition of Death Sentence Because of Mental Retardation." On our own motion, we entered an order to show cause, by simultaneous briefing, why the appeal should not be dismissed for lack of jurisdiction pursuant to Neb. Ct. R. of Prac. 7A(2) (rev.2001). Those briefs have now been filed, and for the reasons stated below, we conclude that the court's order was not a final, appealable order and dismiss the appeal.

The defendant was charged by information in the district court with five counts of murder in the first degree and five counts of use of a deadly weapon to commit a felony. The information also contained the notice of aggravation necessary for the prosecution to seek the death penalty. See Neb.Rev.Stat. § 29-1603 (Cum.Supp. 2004). The defendant had previously been charged by information with one count of robbery, one count of burglary, and another count of use of a deadly weapon to commit a felony. Pursuant to guilty pleas, the defendant was convicted of all 13 charges against him. A jury trial was had on aggravating circumstances, and the jury found that all the alleged aggravating circumstances were proved beyond a reasonable doubt for each of the five murders.

Neb.Rev.Stat. § 28-105.01 (Cum.Supp. 2004) provides, in relevant part:

(2) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person with mental retardation.

(3) As used in subsection (2) of this section, mental retardation means significantly sub average general intellectual functioning existing concurrently with deficits in adaptive behavior. An intelligence quotient of seventy or below on a reliably administered intelligence quotient test shall be presumptive evidence of mental retardation.

(4) If (a) a jury renders a verdict finding the existence of one or more aggravating circumstances . . . the court shall hold a hearing prior to any sentencing determination proceeding . . . upon a verified motion of the defense requesting a ruling that the penalty of death be precluded under subsection (2) of this section. If the court finds, by a preponderance of the evidence, that the defendant is a person with mental retardation, the death sentence shall not be imposed. A ruling by the court that the evidence of diminished intelligence introduced by the defendant does not preclude the death penalty under subsection (2) of this section shall not restrict the defendant's opportunity to introduce such evidence at the sentencing determination proceeding . . . or to argue that such evidence should be given mitigating significance.

The defendant filed a verified motion to preclude imposition of the death sentence because of mental retardation. See, § 28-105.01(2); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (execution of mentally retarded criminal is cruel and unusual punishment prohibited by Eighth Amendment). An evidentiary hearing was held, and the district court found that the defendant had not proved that he was mentally retarded within the meaning of § 28-105.01(3) or Atkins, supra. The district court overruled the defendant's motion to preclude imposition of the death sentence, and the defendant filed a notice of appeal.

It is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. State v. Ehlers, 262 Neb. 247, 631 N.W.2d 471 (2001). For an appellate court to acquire jurisdiction of an appeal, there must be a final judgment or final order entered by the tribunal from which the appeal is taken. See In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006).

A judgment entered during the pendency of a criminal cause is final only when no further action is required to completely dispose of the cause pending. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006). In a criminal case, the judgment is the sentence. State v. Campbell, 247 Neb. 517, 527 N.W.2d 868 (1995). The trial court must pronounce sentence before a criminal conviction is a final judgment. See State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000). It is apparent from the record in this case that the defendant has not been sentenced. Consequently, this court's jurisdiction, if any, is premised on the existence of a final, appealable order.

The three types of final orders which may be reviewed on appeal under the provisions of Neb.Rev.Stat. § 25-1902 (Reissue 1995) are (1) an order which affects a substantial right in an action and which in effect 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 a judgment is rendered. State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005). Because the order from which the defendant is attempting to appeal in this case neither in effect determined the action and prevented a judgment nor was made on summary application after a judgment was rendered, the issue is whether the order appealed from both affected a substantial right and was made during a special proceeding.

We first address whether the order affected a substantial right. A substantial right is an essential legal right, not a mere technical right. In re Guardianship of Sophia M., supra. A substantial right is affected if the order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant prior to the order from which an appeal is taken. Id.

In criminal proceedings, orders affecting substantial rights include the denial of a motion to discharge based upon speedy trial grounds, and the denial of a plea in bar made on double jeopardy grounds. See, State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997) (speedy trial); State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996) (double jeopardy). But rulings on several other comparable motions in criminal cases are not final, appealable orders, because they do not affect a substantial right. See, e.g., Loyd, supra (overruling of motion based on statute of limitations); State v. Sklenar, 269 Neb. 98, 690 N.W.2d 631 (2005) (denial of motion to discharge violation of probation); State v. Lauck, 261 Neb. 145, 621 N.W.2d 515 (2001) (overruling of plea in abatement claiming that alleged facts did not constitute crime); State v. Pruett, 258 Neb. 797, 606 N.W.2d 781 (2000) (overruling of motion to quash claiming that alleged facts did not constitute crime); State v. Meese, 257 Neb. 486, 599 N.W.2d 192 (1999) (overruling of plea in abatement claiming violation of due process because of preindictment delay); State v. Cisneros, 14 Neb. App. 112, 704 N.W.2d 550 (2005) (overruling of motion to withdraw no contest pleas).

The distinction among these cases is in the nature of the allegedly substantial right at issue. A substantial right can be affected by an order if the right is irrevocably lost by operation of the order, while a substantial right is not affected when that right can be effectively vindicated in an appeal from the final judgment. In Jacques, for instance, we explained that the denial of a motion to discharge made on speedy trial grounds affected the subject matter of the litigation because denial of such a motion effectively denied a defendant's speedy trial rights. Id., citing State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997). Similarly, if a criminal defendant is to avoid exposure to double jeopardy, his or her double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs. Sinsel, supra, citing State v. Milenkovich, 236 Neb. 42, 458 N.W.2d 747 (1990).

But in Lauck, supra, we held that a substantial right of the defendant had not been affected, because the defendant could still present all the defenses that he could have presented before the overruling of his plea in abatement. He could still argue that he was not guilty of the crime charged, make a motion to dismiss, or present affirmative defenses, and if convicted, he could raise on direct appeal the issue initially presented by his plea in abatement. See id. See, also, State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005). Similarly, in Meese, supra, we explained that whether a substantial right was affected depended on whether the defendant's right to a fair trial could be vindicated in an appeal from the final judgment, or whether the right could be protected only if the defendant was allowed to appeal directly from the denial of her pretrial motion. See, also, Pruett, supra; Cisneros, supra.

The right at issue in the instant case is both statutory and constitutional. See, § 28-105.01(2); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). However, both the statutory mandate and constitutional rule are based on the determination that "mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes," but "[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses . . . they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Atkins, 536 U.S. at 306, 122 S.Ct. 2242. See, also, Introducer's Statement of Intent, L.B. 1266, Judiciary Committee, 95th Leg., 2d Sess. (...