Zeleny v. State , 298 Neb. 244 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/19/2018 01:13 AM CST
- 244 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
ZELENY v. STATE
Cite as 298 Neb. 244
James R. Zeleny, appellant, v.
State of Nebraska, appellee.
___ N.W.2d ___
Filed December 1, 2017. No. S-16-953.
1. Judgments: Appeal and Error. Generally, the appropriate standard of
review for an order granting relief by way of a writ of prohibition is
de novo.
2. Jurisdiction: Final Orders: Appeal and Error. An appellate court has
jurisdiction to review a judgment rendered or final order made by the
district court.
3. Judgments: Final Orders: Words and Phrases. According to Neb.
Rev. Stat. § 25-1301(1) (Reissue 2016), a judgment is the final determi-
nation of the rights of the parties in an action.
4. Actions: Jurisdiction. A motion for a writ of prohibition is an action.
5. Judgments: Final Orders: Jurisdiction: Appeal and Error. An appel-
late court’s jurisdiction is limited to the judgment or final order from
which the appeal is taken.
6. Final Orders: Jurisdiction: Appeal and Error. An appeal from a final
order may raise, on appeal, every issue presented by the order that is the
subject of the appeal. But that jurisdiction does not extend to issues that
are not presented by the final order, because an appellate court’s juris-
diction to grant relief pursuant to Neb. Rev. Stat. § 25-1911 (Reissue
2016) is limited to reversal, vacation, or modification of the final order
from which the appeal is taken.
7. Jurisdiction: Words and Phrases. In modern practice, the writ of
prohibition is an extraordinary writ, issued by a superior court to an
inferior judicial tribunal to prevent the latter from exceeding its jurisdic-
tion, either by prohibiting it from assuming jurisdiction in a matter over
which it has control, or from exceeding its legitimate powers in a matter
of which is has jurisdiction.
8. ____: ____. Prohibition is a preventative remedy rather than a correc-
tive one.
- 245 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
ZELENY v. STATE
Cite as 298 Neb. 244
9. Jurisdiction. Mere error, irregularity, or mistake in the proceedings of
a court having jurisdiction does not justify a resort to the extraordinary
remedy by prohibition, both because there has been no usurpation or
abuse of power and because there exist other adequate remedies.
10. ____. In general, three things are necessary to justify the issuance of a
writ of prohibition: (1) that the court, officer, or person against whom it
is directed is about to exercise judicial or quasi-judicial power; (2) that
the exercise of such power by such court, officer, or person is unautho­
rized by law; and (3) that it will result in injury for which there is no
other adequate remedy.
Appeal from the District Court for Fillmore County: R icky
A. Schreiner, Judge. Affirmed.
Chad J. Wythers, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Heavican, C.J.
INTRODUCTION
James R. Zeleny’s petition for a writ of prohibition was
denied. He appeals. We affirm.
FACTUAL BACKGROUND
Zeleny was charged by information in the county court
with operating a motor vehicle “while under the influence of
alcoholic liquor or . . . when he had a concentration of eight-
hundredths of one gram or more by weight of alcohol per two
hundred ten liters of his breath.” That charge was enhanced
with the allegation that Zeleny’s alcohol level was “fifteen
hundredths of one gram or more by weight of alcohol per two
hundred ten liters of his breath.”
Pursuant to a plea agreement, Zeleny was charged with
“driving under the influence of alcohol, first offense, under
- 246 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
ZELENY v. STATE
Cite as 298 Neb. 244
.15.” A separate charge of failure to give information at an
accident scene was dismissed. Zeleny was given verbal notice
of this amendment at a hearing on the plea agreement, but the
original complaint was not amended by interlineation and an
amended information was not filed. Zeleny pled guilty to the
single charge, as verbally amended.
At the hearing before the county court, a factual basis for
the crime was established, with the State indicating Zeleny
had called law enforcement to report that he was involved
in a single-vehicle accident. Zeleny reported that he had
crashed into some cattle, drove the vehicle involved in the
crash to his home, and returned to the scene in a different
vehicle. The responding officer observed the odor of alcohol
on Zeleny’s person and noted that Zeleny’s voice was slurred
and his eyes were watery and bloodshot. Zeleny failed a pre-
liminary breath test and field sobriety tests. He was arrested
and transported to a nearby hospital, where a blood sample
was drawn. That sample tested at a blood alcohol content
of .297.
Prior to sentencing, Zeleny filed a motion to arrest judg-
ment in the county court, which was denied. Zeleny then filed
a petition for a writ of prohibition with the district court, ask-
ing that the court restrain the county court from sentencing
him in the underlying case for driving under the influence.
Zeleny’s petition for a writ was denied. The basis for both
motions was Zeleny’s contention that there was an insuf-
ficient factual basis to support his plea; specifically, Zeleny
argues that he was charged with driving under the influence
by a measurement of breath, while the factual basis indicated
that the crime was committed by a measurement of blood.
Zeleny appeals.
ASSIGNMENTS OF ERROR
Zeleny assigns that (1) the county court erred in denying
appellant’s motion to arrest judgment and (2) the district court
erred in denying his motion for a writ of prohibition.
- 247 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
ZELENY v. STATE
Cite as 298 Neb. 244
STANDARD OF REVIEW
[1] Generally, the appropriate standard of review for an order
granting relief by way of a writ of prohibition is de novo.1
ANALYSIS
Issues on Appeal.
As an initial matter, we must consider what issues are before
us in this appeal. Zeleny attempts to appeal the county court’s
denial of his motion to arrest judgment and the district court’s
denial of his motion for a writ of prohibition. The State con-
tends that only the denial of the motion for a writ of prohibi-
tion is properly before us.
[2-4] An appellate court has jurisdiction to review a “judg-
ment rendered or final order made by the district court.”2
According to Neb. Rev. Stat. § 25-1301(1) (Reissue 2016), a
“judgment is the final determination of the rights of the parties
in an action.” We have previously indicated that a motion for
a writ of prohibition is an action.3 The denial of Zeleny’s writ
of prohibition, then, was a final determination of that action.
Thus, the assignment of error relating to the writ of prohibition
is properly before this court.
[5,6] But we do not have jurisdiction over the denial of the
motion to arrest judgment filed in the county court. An appel-
late court’s jurisdiction is limited to the judgment or final
order from which the appeal is taken.4 An appeal from a final
order may raise, on appeal, every issue presented by the order
that is the subject of the appeal. But that jurisdiction does
not extend to issues that are not presented by the final order,
because an appellate court’s jurisdiction to grant relief pursu-
ant to Neb. Rev. Stat. § 25-1911 (Reissue 2016) is limited
1
72A C.J.S. Prohibition § 91 (2015).
2
Neb. Rev. Stat. § 25-1911 (Reissue 2016).
3
State, ex rel. Wright, v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).
4
State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
- 248 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
ZELENY v. STATE
Cite as 298 Neb. 244
to reversal, vacation, or modification of the final order from
which the appeal is taken.5
In other words, while an appellate court can reverse, vacate,
or modify a final order, it cannot address issues that do not
bear on the correctness of the final order upon which its appel-
late jurisdiction is based.6 Without opining on the finality of
the county court’s order denying Zeleny’s motion to arrest
judgment, we observe that it appears Zeleny did not file a sepa-
rate notice of appeal from that order. And even if he had filed
a notice of appeal in the county court, the appeal would have
run to the district court in a separate proceeding from that initi-
ated by Zeleny’s petition for a writ of prohibition. The motion
to arrest judgment is simply not before us. As such, we lack
jurisdiction to determine the merits of Zeleny’s first assignment
of error relating to the county court’s denial of the motion to
arrest judgment.
Writ of Prohibition.
We turn to Zeleny’s contention that the district court erred in
denying the petition seeking a writ of prohibition.
[7] In modern practice, the writ of prohibition is an extraor-
dinary writ, issued by a superior court to an inferior judicial
tribunal to prevent the latter from exceeding its jurisdiction,
either by prohibiting it from assuming jurisdiction in a mat-
ter over which it has control, or from exceeding its legitimate
powers in a matter of which is has jurisdiction.7
[8,9] Prohibition is a preventative remedy rather than a cor-
rective one.8 Mere error, irregularity, or mistake in the proceed-
ings of a court having jurisdiction does not justify a resort to
5
See id.
6
Id.
7
Conkling v. Delany, 167 Neb. 4, 91 N.W.2d 250 (1958).
8
State of Nebraska ex rel. Line v. Kuhlman, 167 Neb. 674, 94 N.W.2d 373
(1959).
- 249 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
ZELENY v. STATE
Cite as 298 Neb. 244
the extraordinary remedy by prohibition, both because there
has been no usurpation or abuse of power and because there
exist other adequate remedies.9 Whatever power is conferred
may be exercised, and, if it is to be exercised injudiciously or
irregularly, it amounts to an error merely, and not a usurpation
or excess of jurisdiction.10
Prohibition is a counterpart to a writ of mandamus in that
the writ of mandamus is used to compel the performance of
certain activities, while a writ of prohibition is used to restrain
the performance of certain activities.11 A writ of prohibition is
the legal equivalent of the equitable remedy of injunction.12
[10] In general, three things are necessary to justify the
issuance of a writ of prohibition: (1) that the court, officer, or
person against whom it is directed is about to exercise judicial
or quasi-judicial power; (2) that the exercise of such power
by such court, officer, or person is unauthorized by law; and
(3) that it will result in injury for which there is no other
adequate remedy.13
In this case, we agree that the county court is set to sentence
Zeleny, which is a judicial power. But the exercise of this
power was not unauthorized by law. Contrary to Zeleny’s sug-
gestion otherwise, it is plain that a county court has, on these
facts, the jurisdiction to sentence Zeleny for his driving under
the influence conviction.
Moreover, the issuance of a writ of prohibition was not the
only remedy to cure Zeleny’s claimed injury. Zeleny com-
plains that his plea was not supported by a sufficient factual
basis. Assuming without deciding that this was the case, other
9
Conkling v. DeLany, supra note 7.
10
Id.
11
72A C.J.S., supra note 1, § 1.
12
Id.
13
See, Line v. Rouse, 241 Neb. 779, 491 N.W.2d 316 (1992); State of
Nebraska ex rel. Line v. Kuhlman, supra note 8.
- 250 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
ZELENY v. STATE
Cite as 298 Neb. 244
remedies are available to him. Zeleny could move to withdraw
his plea, or he could appeal from his conviction following
sentencing. Zeleny has failed to meet the standards for the issu-
ance of such an extraordinary writ.
There is no merit to Zeleny’s second assignment of error.
CONCLUSION
The decision of the district court is affirmed.
A ffirmed.
Wright, J., not participating.