State v. Melton , 308 Neb. 159 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/05/2021 09:08 AM CST
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. MELTON
Cite as 308 Neb. 159
State of Nebraska, appellee, v.
Shane R. Melton, appellant.
___ N.W.2d ___
Filed January 15, 2021. Nos. S-19-1179 through S-19-1183.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Judgments: Time: Appeal and Error. Pursuant to Neb. Rev. Stat.
§ 25-1912(1) (Cum. Supp. 2018), a notice of appeal must be filed, and
the required docket fee deposited with the clerk of the district court,
within 30 days after the entry of such judgment.
4. Jurisdiction: Appeal and Error. An appeal is deemed perfected and
the appellate court shall have jurisdiction of the cause when such notice
of appeal has been filed and the required docket fee is deposited in the
office of the clerk of the district court.
5. Jurisdiction: Affidavits: Fees: Appeal and Error. When a party seeks
to appeal in forma pauperis, a poverty affidavit serves as a substitute
for the docket fee otherwise required upon appeal. As such, an in forma
pauperis appeal is perfected when the appellant timely files a notice of
appeal and a proper affidavit of poverty.
6. Criminal Law: Sentences: Judgments: Appeal and Error. For
purposes of appeal in a criminal case, it is the sentence which is
the judgment.
7. Criminal Law: Sentences: Judgments. After a criminal sentence is
pronounced in open court, the judgment is rendered when the written
sentencing order is signed by the judge, and the judgment is entered
when the clerk of the court places the file stamp on the judgment.
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STATE v. MELTON
Cite as 308 Neb. 159
8. ____: ____: ____. In a criminal case, the entry of judgment occurs
when the signed sentencing order is file stamped by the clerk of
the court.
9. Affidavits: Fees: Time: Appeal and Error. In order to vest the appel-
late courts with jurisdiction, a poverty affidavit must be filed within
the time that the docket fee would otherwise have been required to
be deposited.
10. Criminal Law: Statutes. Where a criminal procedure is not authorized
by statute, it is unavailable to a defendant in a criminal proceeding.
11. Criminal Law: Appeal and Error. When a criminal defendant files
a motion that is not authorized and therefore is unavailable under
Nebraska criminal procedure, the motion is a procedural and legal nul-
lity, and any court order adjudicating such a motion presents nothing for
appellate review.
Appeals from the District Court for Lincoln County:
Michael E. Piccolo, Judge. Appeals dismissed.
Martin J. Troshynski for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In these consolidated criminal appeals, Shane R. Melton
primarily challenges the district court’s refusal to modify his
criminal sentences after the sentencing hearing. We do not
reach the merits of his arguments, because we conclude his
appeals must be dismissed for lack of jurisdiction.
FACTS
Following a string of motor vehicle thefts and high-speed
police chases that occurred in August 2018, eight separate
criminal cases were filed against Melton in the district court
for Lincoln County. Pursuant to a plea agreement, the State
dismissed three of the cases in their entirety, and in the remain-
ing five cases, Melton entered no contest pleas to some counts
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STATE v. MELTON
Cite as 308 Neb. 159
and the State dismissed others. Ultimately, the court accepted
Melton’s pleas and found him guilty of seven felonies.
At the sentencing hearing on October 28, 2019, the court
pronounced prison sentences on all seven convictions. The
court ordered some of the prison sentences to run consecu-
tively, and some to run concurrently. After all of the sentences
were pronounced, but before the parties left the courtroom, the
State asked for clarification on whether the license suspensions
imposed in connection with some of the convictions were to
run consecutively or concurrently to one another. The court
replied that the license suspensions would all run concurrently.
No other clarification was requested.
Approximately 2 weeks after the sentencing hearing,
on November 12, 2019, signed sentencing orders were file
stamped and entered by the clerk of the court in each of the
five cases. As relevant to the issues on appeal, the sentenc-
ing orders reflected that some of the prison sentences were
ordered to run consecutively, and others were ordered to run
concurrently.
Several weeks after the sentencing hearing, Melton’s attor-
ney was told that someone overheard the sentencing judge
telling another judge that he had mistakenly ordered some of
Melton’s sentences to run consecutively, when he had intended
them all to run concurrently. On November 20, 2019, Melton’s
attorney wrote a letter to the sentencing judge recounting what
he had learned. The letter, on which the county attorney was
copied, stated that Melton was “filing a motion to modify” his
sentences, requesting that all sentences be run concurrently. No
motions were subsequently filed by Melton, but the trial court
treated the November 20 letter as a “formal Motion to Modify
the Court’s sentences imposed on October 28, 2019.”
On November 21, 2019, the sentencing judge entered iden-
tical orders in each of the five criminal cases, attaching and
incorporating the letter from Melton’s counsel. The judge
generally agreed with the statements contained in the letter,
and explained:
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308 Nebraska Reports
STATE v. MELTON
Cite as 308 Neb. 159
The Court realized the mispronouncement had occurred
after the Court imposed the sentences and after
[Melton] was removed from the courtroom. Once this
matter was discovered, the Court immediately confer-
enced with another district court judge to determine the
legal options, if any, available to the Court.
The court concluded that it lacked authority to modify the
sentences, citing the rule from State v. Lessley. 1 In Lessley,
we held the circumstances under which a judge may correct
an inadvertent mispronouncement of a sentence are limited
to those instances in which it is clear the defendant has not
yet left the courtroom; it is obvious that the judge, in cor-
recting his or her language, did not change in any manner the
sentence originally intended; and no written notation of the
inadvertently mispronounced sentence was made in the records
of the court. In identical orders entered November 21, the
court denied Melton’s motion to modify the sentences in all
five cases.
On November 26, 2019, Melton filed a notice of appeal and
a motion to proceed in forma pauperis in all five cases. On
December 16, Melton filed a notarized poverty affidavit in all
five cases, after which the Nebraska Court of Appeals consoli-
dated the appeals. We subsequently granted Melton’s petition
to bypass.
ASSIGNMENTS OF ERROR
Melton’s brief assigns three errors, two of which chal-
lenge the overruling of his motions to modify the sentences,
and one of which challenges the sentence imposed on one
conviction.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
1
State v. Lessley, 301 Neb. 734, 919 N.W.2d 884 (2018).
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STATE v. MELTON
Cite as 308 Neb. 159
which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision. 2
ANALYSIS
[2] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 3 The State argues that
appellate jurisdiction was not perfected within 30 days of the
entry of the judgment, decree, or final order being appealed
from 4 and that we therefore must dismiss Melton’s appeals.
We agree.
[3,4] Section 25-1912(1) governs appeals from “judgments
and sentences upon convictions for felonies and misdemean-
ors” and provides that a notice of appeal must be filed, and the
required docket fee deposited, “in the office of the clerk of the
district court in which such judgment, decree, or final order
was rendered” within 30 days after the “entry of such judg-
ment.” An appeal is “deemed perfected and the appellate court
shall have jurisdiction of the cause when such notice of appeal
has been filed and [the required docket fee is] deposited in the
office of the clerk of the district court.” 5
[5] In lieu of depositing the required docket fee, Neb. Rev.
Stat. § 29-2306 (Reissue 2016) allows a criminal defendant
to request to proceed in forma pauperis on appeal. 6 When a
defend­ant does so, “a poverty affidavit serves as a substitute
for the docket fee otherwise required upon appeal,” and an in
forma pauperis appeal is “perfected when the appellant timely
files a notice of appeal and a proper affidavit of poverty.” 7
2
State v. Roberts, 304 Neb. 395, 934 N.W.2d 845 (2019).
3
State v. Fredrickson, 306 Neb. 81, 943 N.W.2d 710 (2020).
4
See Neb. Rev. Stat. § 25-1912(1) (Cum. Supp. 2018).
5
§ 25-1912(4).
6
See, also, id.
7
State v. Ruffin, 280 Neb. 611, 614, 789 N.W.2d 19, 22 (2010). See, In re
Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006); State v.
Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).
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STATE v. MELTON
Cite as 308 Neb. 159
[6] For purposes of appeal in a criminal case, it is the
sentence which is the judgment. 8 Here, the court pronounced
­sentence in open court on October 28, 2019, but the writ-
ten sentencing orders were not filed until November 12. Our
record does not reveal the reason for the significant delay
between the pronouncement of sentence and the filing of the
written sentencing orders. But for a variety of reasons, not
the least of which is the potential for confusion over when
the appeal time starts to run, we disapprove of the practice of
entering the written sentencing order on a date other than when
the sentence is pronounced. 9
In a case like this, where there is a delay between the pro-
nouncement of sentence and the filing of the written sentencing
orders, questions can arise as to when judgment was entered
for purposes of appeal. We acknowledge some variance in our
cases as to when the “entry of judgment” occurs in a criminal
case. Some of our cases have stated broadly that in a criminal
case, the entry of judgment occurs with the imposition of a
sentence. 10 Other cases have recognized that a criminal judg-
ment is not final for purposes of appeal until a file-stamped
sentencing order is entered. 11 We take this opportunity to rec-
oncile our case law on this important point.
Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2020) governs
both the rendition and the entry of judgments. Currently, that
8
See, State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008); State v. Foster,
239 Neb. 598, 476 N.W.2d 923 (1991).
9
See, e.g., State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
10
State v. Arizola, 295 Neb. 477, 890 N.W.2d 770 (2017); State v. Yuma,
286 Neb. 244, 835 N.W.2d 679 (2013); State v. Lamb, 280 Neb. 738, 789
N.W.2d 918 (2010).
11
See, Foster, supra note 8; State v. McCracken, 248 Neb. 576, 537 N.W.2d
502 (1995), abrogated on other grounds, State v. Thomas, 262 Neb. 985,
637 N.W.2d 632 (2002), overruled on other grounds, State v. Vann, 306
Neb. 91, 944 N.W.2d 503 (2020). See, also, State v. Brown, 12 Neb. Ct. App.
940, 687 N.W.2d 203 (2004); State v. Wahrman, 11 Neb. Ct. App. 101, 644
N.W.2d 572 (2002).
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STATE v. MELTON
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statute defines the rendition of a judgment as “the act of the
court, or a judge thereof, in signing a single written docu-
ment stating all of the relief granted or denied in an action.” 12
The “entry of a judgment” occurs “when the clerk of the
court places the file stamp and date upon the judgment,” and
for purposes of determining the time for appeal, “the date
stamped on the judgment, decree, or final order shall be the
date of entry.” 13
[7] In the legal vernacular of § 25-1301, after a criminal
sentence is pronounced in open court, the “rendition” of judg-
ment occurs when the written sentencing order is signed by
the judge, and the “entry” of judgment occurs when the clerk
of the court places the file stamp on the judgment. This court
and the Court of Appeals have generally relied on § 25-1301
when holding that a criminal judgment is not final for purposes
of appeal until a file-stamped sentencing order is entered by
the clerk. 14
But in several criminal cases since 2010, we have stated
that the entry of judgment occurs with the imposition of a
sentence. 15 This language appears to have originated in State
v. Lamb, 16 a case where we were determining the point at
which a criminal defendant was no longer participating in
criminal proceedings under Neb. Rev. Stat. § 60-6,197.09
(Cum. Supp. 2008). We reasoned that a “proceeding” in that
context included “‘“all acts and events between the time
of commencement and the entry of judgment.”’” 17 We then
12
§ 25-1301(2).
13
§ 25-1301(3).
14
See, Foster, supra note 8 (referencing § 25-1301 for proposition that
judgment is rendered when some written notation thereof is made in
record); McCracken, supra note 11 (same); Brown, supra note 11 (applying
§ 25-1301 and finding no final judgment absent file-stamped sentencing
order); Wahrman, supra note 11 (same).
15
Arizola, supra note 10; Yuma, supra note 10; Lamb, supra note 10.
16
Lamb, supra note 10.
17
Id. at 745, 789 N.W.2d at 925.
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STATE v. MELTON
Cite as 308 Neb. 159
stated that “[i]n a criminal case, entry of judgment occurs with
the imposition of a sentence,” 18 and we went on to find that
the imposition of the sentence concluded the criminal proceed-
ings. In State v. Arizola 19 and State v. Yuma, 20 we repeated the
statement that entry of judgment occurs with the imposition
of the sentence. But none of those cases involved a situation
where the pronouncement of sentence and the entry of judg-
ment occurred on different days. To the extent Arizola, Yuma,
and Lamb can be read to suggest the time to appeal a criminal
judgment begins to run from the date on which sentence is
imposed or pronounced, rather than from the date on which
the clerk of the court file stamps the sentencing order, we dis­
approve of such a reading. 21
[8] Recently, in State v. Hartzell, 22 we held that a notice of
appeal which had been filed after the pronouncement of sen-
tence, but several months before the signed sentencing order
was filed, should be treated as filed on the date the sentenc-
ing order was file stamped by the clerk, which we described
as “the entry of the judgment.” Hartzell is consistent with the
general rule that, in a criminal case, the entry of judgment
occurs when the signed sentencing order is file stamped by
the clerk of the court. 23 This is the correct rule, and we apply
it here.
The entry of judgment in Melton’s criminal cases occurred
on November 12, 2019—the date on which the signed sen-
tencing orders were file stamped by the clerk of the district
court. Melton filed a timely notice of appeal and request to
18
Id.
19
Arizola, supra note 10.
20
Yuma, supra note 10.
21
See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017) (holding
that right to appeal is purely statutory and cannot be modified by court).
22
Hartzell, supra note 9, 304 Neb. at 89, 933 N.W.2d at 447.
23
See, § 25-1301; Foster, supra note 8; McCracken, supra note 11; Brown,
supra note 11; Wahrman, supra note 11.
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STATE v. MELTON
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proceed in forma pauperis in all five cases on November 26,
but he did not file a notarized poverty affidavit in any case
until December 16.
[9] In order to vest the appellate courts with jurisdiction,
a poverty affidavit must be filed within the time that the
docket fee would otherwise have been required to be depos-
ited. 24 Because Melton did not perfect his appeals within
30 days after the entry of judgment on November 12, 2019,
this court is without jurisdiction to consider his appeals from
those judgments.
We understand Melton’s appellate briefing to suggest that
even if his poverty affidavits were not filed within 30 days
of the November 12, 2019, judgments, they were filed within
30 days after the court’s November 21 orders overruling his
“motion to modify” the sentences. It is not clear whether
Melton is suggesting that a “motion to modify” somehow
terminates the time for appeal or whether he is suggesting
the November 21 orders can be appealed separately from the
criminal judgments. Either way, his position is meritless.
[10] There are certain motions which will terminate the
time for filing an appeal in a civil case, 25 but this is not a civil
case. Chapter 29 of the Nebraska Revised Statutes addresses
criminal procedures, and it contains no statute authorizing a
“motion to modify” a criminal sentence. Thus, to the extent
Melton’s letter can fairly be characterized as a motion at all,
it is not one which is recognized in Nebraska’s criminal pro-
cedure statutes. And where a criminal procedure is not autho-
rized by statute, it is unavailable to a defendant in a criminal
proceeding. 26 Melton points to nothing in our record that
24
Ruffin, supra note 7. Accord, In re Interest of Fedalina G., supra note 7;
Parmar, supra note 7.
25
See § 25-1912(3).
26
State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008); State v.
Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999). See, also, State v. Miller,
240 Neb. 297, 481 N.W.2d 580 (1992).
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would arguably toll the time for appealing from the entry of
judgment in these criminal cases.
[11] Moreover, to the extent Melton suggests that the
court’s November 21, 2019, orders overruling his unauthorized
motions to modify are separately appealable, he is incorrect.
When a criminal defendant files a motion that is not authorized
and therefore is unavailable under Nebraska criminal proce-
dure, the motion is a procedural and legal nullity, and any court
order adjudicating such a motion presents nothing for appel-
late review. 27
CONCLUSION
In all five of Melton’s criminal cases, the 30-day time to
appeal from the entry of judgment began to run on November
12, 2019, when the signed sentencing orders were file stamped
by the clerk. In each case, Melton filed a notice of appeal on
November 26, but his poverty affidavit was not filed until
December 16. Because his appeals were not perfected within
30 days after the entry of judgment, they must be dismissed for
lack of jurisdiction.
Appeals dismissed.
27
See Miller, supra note 26.