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


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/19/2021 12:09 AM CDT
    - 159 -
    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.
    - 160 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    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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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    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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    Nebraska Supreme Court Advance Sheets
    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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    308 Nebraska Reports
    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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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    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. App. 940
    , 
    687 N.W.2d 203
     (2004); State v. Wahrman, 
    11 Neb. App. 101
    , 
    644 N.W.2d 572
     (2002).
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    STATE v. MELTON
    Cite as 
    308 Neb. 159
    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
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    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
    Cite as 
    308 Neb. 159
    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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    STATE v. MELTON
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    308 Neb. 159
    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
    .