Opinion
No. A–12–163.
2012-08-28
In re Interest of LORI S., a child under 18 years of age. State of Nebraska, appellant, v. Lori S., appellee.
Donald W. Kleine, Douglas County Attorney, Paulette Merrell, and Kailee Smith, Senior Certified Law Student, for appellant. Thomas C. Riley, Douglas County Public Defender, and Shannon C. Kelly for appellee.
Syllabus by the Court
1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional issues not involving factual disputes as a matter of law, which requires the appellate court to reach independent conclusions.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.
3. Criminal Law: Judgments: Jurisdiction: Appeal and Error. Absent specific statutory authorization, the State, as a general rule, has no right to appeal an adverse ruling in a criminal case.
4. Courts: Juvenile Courts: Appeal and Error. Most cases arising under Neb.Rev.Stat. § 43–2,106.01(1) (Cum.Supp.2010) are governed by Neb.Rev.Stat. § 25–1912 (Reissue 2008), which sets forth the requirements for appealing district court decisions. But, the plain language of § 43–2,106.01(2)(d) carves out an exception for delinquency cases in which jeopardy has attached, such as where the State's petition is dismissed for lack of evidence.
5. Courts: Juvenile Courts: Appeal and Error. In delinquency cases where jeopardy has attached, an appeal may be taken only under the procedures of Neb.Rev.Stat. §§ 29–2317 to 29–2319 (Reissue 2008).
6. Courts: Appeal and Error. The language of Neb.Rev.Stat. § 29–2317 (Reissue 2008) requires the appeal of a county court judgment to the district court sitting as an appellate court.
7. Courts: Appeal and Error. Reference to the county court in Neb.Rev.Stat. §§ 29–2317 to 29–2319 (Reissue 2008) also applies to the separate juvenile court.
8. Statutes: Appeal and Error. Appeals under specific statutory provisions require strict adherence to the statute's procedures.
9. Courts: Juvenile Courts: Legislature: Intent: Appeal and Error. Had the Legislature intended that appeals under Neb.Rev.Stat. § 43–2,106.01(2)(d) (Cum.Supp.2010) be made to the Court of Appeals, that subsection would have referred to Neb.Rev.Stat. §§ 29–2315.01 to 29–2316 (Reissue 2008) instead of to Neb.Rev.Stat. §§ 29–2317 to 29–2319 (Reissue 2008).
10. Statutes. When the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language.
11. Juvenile Courts: Statutes: Jurisdiction: Appeal and Error. Where the State fails to follow the statutory procedures outlined in Neb.Rev.Stat. § 29–2317 (Reissue 2008), as referenced in Neb.Rev.Stat. § 43–2,106.01 (Cum.Supp.2010), an appellate court lacks jurisdiction to consider the merits of the appeal.
Donald W. Kleine, Douglas County Attorney, Paulette Merrell, and Kailee Smith, Senior Certified Law Student, for appellant. Thomas C. Riley, Douglas County Public Defender, and Shannon C. Kelly for appellee.
IRWIN, SIEVERS, and PIRTLE, Judges.
SIEVERS, Judge.
The State of Nebraska appeals from an order of the separate juvenile court of Douglas County dismissing its petition against Lori S. for insufficient evidence. Because Lori was placed legally in jeopardy within the meaning of Neb.Rev.Stat. § 43–2,106.01(2)(d) (Cum.Supp.2010), the State was required to take an exception proceeding to the district court according to the procedures outlined in Neb.Rev.Stat. § 29–2317 (Reissue 2008). It did not do so, and therefore, we lack jurisdiction over the merits of its appeal.
BACKGROUND
On August 16, 2011, the State filed a petition alleging that Lori came within the meaning of Neb.Rev.Stat. § 43–247(1)(Reissue 2008) in that she violated a law of the State or a municipal ordinance of the city of Omaha. Specifically, citing Neb.Rev.Stat. § 28–310(1)(a) and (b) (Reissue 2008), the State alleged that on or about May 30, at or near 705 Riverfront Drive in Omaha, Lori intentionally, knowingly, or recklessly caused bodily injury to Jelissa J. or threatened her in a menacing manner.
An adjudication hearing was held on January 19, 2012. The victim, Jelissa, testified, as did Lori. Jelissa testified that she was walking with friends at about 11:30 p.m. in Omaha on May 30, 2011, across “the bridge downtown that leads from Omaha to Iowa” when “Lori came up from behind [her] and grabbed [her] hair and pulled [her] down and started fighting.” Jelissa testified that Lori punched her several times and that then, when the attack subsided, Jelissa exited the bridge and walked to her truck. She testified that Lori again came after her and hit her with her fist, after which she fell to the ground and Lori continued hitting her. Jelissa testified that she sustained injuries in the attack, including a black eye, a bloody nose, and scratches on her knees. Jelissa's testimony was that she tried to defend herself by hitting Lori and grabbing her hair and that then “eventually a guy that [she] know[s] pulled [Lori] off [her].” Jelissa testified that, in all, the entire incident lasted around 20 minutes. Jelissa testified that the police arrived on the scene and that she filed a report, indicating to the police that she wanted to press charges against Lori. Jelissa testified that she knew Lori from childhood but that they were not friends.
Lori testified to a similar series of events on the night in question; however, her testimony was that she was not the initial aggressor and that it was actually Jelissa who attacked her first, both on the bridge and in the parking lot. She testified that tension between her and Jelissa began at a graduation party on May 17, 2011. Lori and Jelissa had differing accounts of what occurred at the graduation party, but they were both in agreement that a fight nearly broke out between them at that time. This incident appears to have been a continuation of that existing tension. Lori did not report the altercation to law enforcement.
At the close of evidence, the juvenile court judge stated that she found the State's witness to be more believable, but that she could not say the State proved its case beyond a reasonable doubt. She dismissed the State's petition for lack of evidence. The State now appeals.
ASSIGNMENT OF ERROR
The State alleges that the separate juvenile court erred in dismissing the petition for lack of evidence.
STANDARD OF REVIEW
An appellate court determines jurisdictional issues not involving factual disputes as a matter of law, which requires the appellate court to reach independent conclusions. In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006).
ANALYSIS
Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties. Id. Absent specific statutory authorization, the State, as a general rule, has no right to appeal an adverse ruling in a criminal case. Id.
The State appeals the order of the separate juvenile court, claiming that we have jurisdiction pursuant to § 43–2,106.01, which governs appellate jurisdiction for separate juvenile courts, and Neb.Rev.Stat. § 25–1912 (Reissue 2008). See In re Interest of Sean H., supra.Section 43–2,106.01 provides:
(1) Any final order or judgment entered by a juvenile court may be appealed to the Court of Appeals in the same manner as an appeal from district court to the Court of Appeals. The appellate court shall conduct its review in an expedited manner....
(2) An appeal may be taken by:
....
(d) The county attorney or petitioner, except that in any case determining delinquency issues in which the juvenile has been placed legally in jeopardy, an appeal of such issues may only be taken by exception proceedings pursuant to sections 29–2317 to 29–2319.
....
(Emphasis supplied.)
Most cases arising under § 43–2,106.01(1) are governed by § 25–1912, which sets forth the requirements for appealing district court decisions. In re Interest of Sean H., supra. But, the plain language of § 43–2,106.01(2)(d) carves out an exception for delinquency cases in which jeopardy has attached, such as here where the State's third degree assault charge against Lori was dismissed for lack of evidence. See In re Interest of Sean H., supra (jeopardy attached in separate juvenile court proceeding where manslaughter charge was dismissed for insufficient evidence). In such cases, an appeal may be taken only under the procedures of § 29–2317 to Neb.Rev.Stat. § 29–2319 (Reissue 2008). In re Interest of Sean H., supra.
Sections 29–2317 to 29–2319 outline exception proceedings, which allow prosecuting attorneys to “take exception to any ruling or decision of the county court ... by presenting to the court a notice of intent to take an appeal to the district court.” § 29–2317(1). The language of § 29–2317 requires the appeal of a county court judgment to the district court sitting as an appellate court. In re Interest of Sean H., supra. Reference to the county court in §§ 29–2317 to 29–2319 also applies to the separate juvenile court. In re Interest of Sean H., supra. The relevant portions of § 29–2317 provide:
(1) A prosecuting attorney may take exception to any ruling or decision of the county court made during the prosecution of a cause by presenting to the court a notice of intent to take an appeal to the district court with reference to the rulings or decisions of which complaint is made.
....
(3) The prosecuting attorney shall then file the notice in the district court within thirty days from the date of final order and within thirty days from the date of filing the notice shall file a bill of exceptions covering the part of the record referred to in the notice. Such appeal shall be on the record.
Here, the State filed its notice of appeal from the order of the separate juvenile court not with the district court, as is required by § 29–2317, but with this court. Appeals under specific statutory provisions require strict adherence to the statute's procedures. In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006). Had the Legislature intended that appeals under § 43–2,106.01(2)(d) be made to the Court of Appeals, that subsection would have referred to Neb.Rev.Stat. §§ 29–2315.01 to 29–2316 (Reissue 2008) instead of to §§ 29–2317 to 29–2319. In re Interest of Sean H., supra. When the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language. Id. Because the State failed to follow the statutory procedures outlined in § 29–2317, as referenced in § 43–2,106.01, we lack jurisdiction to consider the merits of this appeal.
CONCLUSION
Because this case is not properly before this court, we dismiss for lack of jurisdiction.
Appeal dismissed.