State v. Wilkinson
| Decision Date | 05 April 1985 |
| Docket Number | No. 84-745,84-745 |
| Citation | 219 Neb. 685,365 N.W.2d 478 |
| Parties | STATE of Nebraska, Appellant, v. Bruce Allen WILKINSON, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Preliminary Hearings. A preliminary hearing is not a criminal prosecution or a trial. Its purpose is to ascertain whether a crime has been committed and whether there is probable cause to believe the accused committed it.
2. Criminal Law: Judges: Jurisdiction. A county judge sitting as an examining magistrate has no jurisdiction to dismiss a felony complaint with prejudice.
3. Criminal Law: Judges: Jurisdiction. The jurisdiction of an examining magistrate is limited to discharging the defendant or holding him for trial by a court which has jurisdiction over the offense charged.
James R. Kozel, Deputy Platte Co. Atty., for appellant.
Mark M. Sipple of Luckey, Sipple, Hansen & Emerson, Columbus, for appellee.
This is a proceeding under Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1984) to review the order of the district court affirming the order of the county court dismissing with prejudice a felony complaint against the defendant, Bruce Allen Wilkinson.
The defendant was arrested on April 13, 1983, in Platte County, Nebraska, for possession of a controlled substance, a Class IV felony. The next day, the defendant posted bond and was released from custody. At that time the defendant agreed to appear before the court at a later date to answer charges against him. When no charges had been filed by April 28, 1983, the defendant's bond was discharged.
On November 18, 1983, a complaint charging the defendant with possession of a controlled substance was filed. The defendant was brought before the county judge on February 17, 1984, and a date was set for a preliminary hearing. The defendant then filed a motion for discharge setting forth the above facts and alleging that he had been denied his constitutional right to a speedy trial. The county court found that the defendant's motion should be sustained and dismissed the complaint with prejudice. The State then appealed to the district court, where the order was affirmed.
The issue here is whether a county judge sitting as an examining magistrate has jurisdiction to dismiss a felony complaint with prejudice.
A preliminary hearing is not a criminal prosecution or a trial. "Its purpose is to ascertain whether or not a crime has been committed, and whether or not there is probable cause to believe the accused committed it." Delay v. Brainard, 182 Neb. 509, 512, 156 N.W.2d 14, 17 (1968).
After the defendant had been charged with a felony, he was entitled to a preliminary hearing pursuant to Neb.Rev.Stat. § 29-504 (Reissue 1979). The scope of that hearing is defined in Neb.Rev.Stat. § 29-506 (Reissue 1979), which provides:
If upon the whole examination, it shall appear that no offense has been committed or that there is no probable cause for holding the accused to answer for the offense, he shall be discharged; but if it shall appear that an offense has been committed and there is probable cause to believe that the person charged has...
To continue reading
Request your trial
-
State v. Thalken, S-16-830.
...(1984). But see State v . Golgert , supra note 33; State v. Merithew, 220 Neb. 530, 371 N.W.2d 110 (1985) ; and State v . Wilkinson, 219 Neb. 685, 365 N.W.2d 478 (1985) (sustaining exception).105 Heckman v. Marchio , supra note 35, 296 Neb. at 464, 894 N.W.2d at 301.106 State v. Kleckner , ......
-
State v. Rossbach
...or not a crime has been committed and whether there is probable cause to believe the accused committed it. See, State v. Wilkinson, 219 Neb. 685, 365 N.W.2d 478 (1985); State v. Ruzicka, 218 Neb. 594, 357 N.W.2d 457 (1984); State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969); Delay, supra; ......
-
State v. A.D.
...hearings in felony cases referred to in Schanaman is derived from other statutes. As we explained in State v. Wilkinson , 219 Neb. 685, 686, 365 N.W.2d 478, 479 (1985), when a county court judge conducts a preliminary hearing, he or she is acting as an "examining magistrate," pursuant to Ne......
-
State v. Anderson
...898 N.W.2d 318 (2017).20 Brief for appellant at 20.21 Id. at 15.22 See, Neb. Rev. Stat. § 27-1101 (Reissue 2016) ; State v. Wilkinson , 219 Neb. 685, 365 N.W.2d 478 (1985) ; Daniel A. Morris, Nebraska Trials § 4:11 (2019).23 See Gerstein v. Pugh , 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 5......