State v. Harris , 307 Neb. 237 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. HARRIS
    Cite as 
    307 Neb. 237
    State of Nebraska, appellant and
    cross-appellee, v. Jack E. Harris,
    appellee and cross-appellant.
    ___ N.W.2d ___
    Filed September 25, 2020.   Nos. S-19-130, S-19-133.
    1. Jurisdiction. A question of jurisdiction is a question of law.
    2. Judgments: Appeal and Error. Appellate courts independently review
    questions of law decided by a lower court.
    3. ____: ____. The construction of a mandate issued by an appellate court
    presents a question of law, on which an appellate court is obligated to
    reach a conclusion independent of the determination reached by the
    court below.
    4. 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.
    5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction of an appeal, there must be a final order or final
    judgment entered by the court from which the appeal is taken.
    6. Final Orders: Appeal and Error. Among the three types of final orders
    which may be reviewed on appeal is an order affecting a substantial
    right made during a special proceeding.
    7. Actions: Words and Phrases. An action involves prosecuting the
    alleged rights between the parties and ends in a final judgment, whereas
    a special proceeding does not.
    8. Final Orders. Whether an order affects a substantial right depends
    on whether it affects with finality the rights of the parties in the sub-
    ject matter.
    9. ____. Whether an order affects a substantial right depends on whether
    the right could otherwise effectively be vindicated.
    10. Final Orders: Appeal and Error. An order affects a substantial right
    when the right would be significantly undermined or irrevocably lost by
    postponing appellate review.
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    11. Appeal and Error: Words and Phrases. In appellate procedure, a
    “remand” is an appellate court’s order returning a proceeding to the
    court from which the appeal originated for further action in accordance
    with the remanding order.
    12. Courts: Appeal and Error. After receiving a mandate, a trial court is
    without power to affect rights and duties outside the scope of the remand
    from an appellate court.
    13. Courts: Judgments: Appeal and Error. A lower court may not modify
    a judgment directed by an appellate court; nor may it engraft any provi-
    sion on it or take any provision from it.
    14. Judgments: Appeal and Error. No judgment or order different from, or
    in addition to, the appellate mandate can have any effect.
    15. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial
    court is without power to affect rights and duties outside the scope of the
    remand from an appellate court, any order attempting to do so is entered
    without jurisdiction and is void.
    Appeals from the District Court for Douglas County:
    William B. Zastera and Jodi L. Nelson, Judges. Appeal in
    No. S-19-130 dismissed. Judgment in No. S-19-133 vacated,
    and cause remanded with directions.
    Douglas J. Peterson, Attorney General, and James D. Smith,
    Solicitor General, for appellant.
    Sarah P. Newell, of Nebraska Commission on Public
    Advocacy, for appellee.
    Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and
    Moore and Welch, Judges.
    Papik, J.
    Two decades ago, following a jury trial, Jack E. Harris was
    convicted of first degree murder and use of a deadly weapon
    to commit a felony. His convictions were affirmed on direct
    appeal. As is often the case in such matters, years of litiga-
    tion followed, in which Harris filed many motions collaterally
    attacking his convictions and sentences. After we remanded
    for further proceedings in an appeal involving such collat-
    eral attacks in 2017, the district court granted Harris’ motion
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    STATE v. HARRIS
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    for new trial and, later, his motion for absolute discharge on
    speedy trial grounds. On the State’s appeal from these orders,
    we conclude that the district court did not comply with our
    mandate in an earlier appeal and that its orders granting
    Harris a new trial and absolute discharge were thus void.
    Accordingly, we vacate those orders and remand the cause for
    further proceedings.
    I. BACKGROUND
    1. Conviction, Earlier Proceedings,
    and Appeals by Harris
    In 2000, following a jury trial, Harris was convicted of
    first degree murder and use of a deadly weapon to commit a
    felony. He was sentenced to life imprisonment on the murder
    conviction and 10 to 20 years’ imprisonment on the weapons
    conviction, to be served consecutively. We affirmed on direct
    appeal. See State v. Harris, 
    263 Neb. 331
    , 
    640 N.W.2d 24
    (2002) (Harris I).
    Several unsuccessful motions and appeals by Harris fol-
    lowed. See State v. Harris, 
    267 Neb. 771
    , 
    677 N.W.2d 147
    (2004) (Harris II); State v. Harris, 
    274 Neb. 40
    , 
    735 N.W.2d 774
    (2007) (Harris III); State v. Harris, 
    292 Neb. 186
    , 
    871 N.W.2d 762
    (2015) (Harris IV); and State v. Harris, 
    296 Neb. 317
    , 
    893 N.W.2d 440
    (2017) (Harris V).
    In Harris IV, we reversed the district court order that dis-
    missed Harris’ second postconviction motion, which had been
    filed simultaneously with a new trial motion and a motion for
    writ of error coram nobis. Harris’ motions rested on allega-
    tions (1) that Howard “Homicide” Hicks, Harris’ accomplice
    and a key witness in Harris’ trial, disclosed to fellow inmate
    Terrell McClinton that Hicks had lied during his testimony
    and that Hicks alone, not Harris, had killed the victim; (2)
    that another witness, Curtis Allgood, generally corroborated
    McClinton’s account and provided details placing Hicks near
    the crime scene at the time of the murder; and (3) that Harris
    was unaware of this information until McClinton’s contact with
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    STATE v. HARRIS
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    Harris’ attorney in 2006 and was prevented from discovering
    the information earlier because of misconduct by the prosecu-
    tor and the State’s witness.
    The district court had earlier granted Harris leave to file a
    third amended postconviction motion raising claims similar
    to the second motion’s and additional claims concerning the
    State’s plea agreement with Hicks. Although the court, the par-
    ties, and the evidence gave indications that the third amended
    postconviction motion was addressed at the subsequent June
    28, 2013, hearing, Harris had not filed it. At the hearing, the
    district court announced that the matter was before the court
    on the third amended motion for postconviction relief and
    took judicial notice of the bill of exceptions for Harris’ trial
    in 1999. The State did not assert that Harris had failed to file
    the third amended motion, but instead offered a copy of the
    motion and the court’s docket entries showing that Harris had
    been given leave to file the motion. Harris presented evidence
    that was relevant only to his third amended motion for postcon-
    viction relief. Following the hearing, the district court’s order
    expressly dismissed the second postconviction motion, and
    Harris appealed.
    In Harris IV, we characterized the 2013 hearing as a hear-
    ing on the third amended postconviction motion. We held that
    “a court presented with a motion for postconviction relief
    which exists simultaneously with a motion seeking relief under
    another remedy must dismiss the postconviction motion with-
    out prejudice when the allegations, if true, would constitute
    grounds for relief under the other remedy sought.” Harris
    
    IV, 292 Neb. at 191
    , 871 N.W.2d at 766. We determined that
    because the motion for new trial was time barred under the
    statute then in effect and because there was no possibility of
    obtaining relief through a writ of coram nobis, the district
    court erred in dismissing the motion for postconviction relief.
    See Neb. Rev. Stat. § 29-2103 (Reissue 2008). We remanded
    for consideration of “the postconviction motion” on the merits.
    Harris 
    IV, 292 Neb. at 194
    , 871 N.W.2d at 768.
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    STATE v. HARRIS
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    307 Neb. 237
    On remand, the district court did not conduct a new evi-
    dentiary hearing but considered the evidence presented at the
    2013 evidentiary hearing. It denied postconviction relief, but
    given the matters addressed at the 2013 hearing, it was unclear
    whether the district court’s order disposed of the second
    postconviction motion or the third amended postconviction
    motion involving similar and additional claims. The court’s
    order, signed on March 3, 2016, referred to the “[s]econd”
    motion for postconviction relief and addressed claims raised
    only in the second motion. It stated that “[t]he matter came
    on for full evidentiary hearing on June 28, 2013.” The court
    did not address Harris’ claims regarding Hicks’ plea agree-
    ment raised only in the third amended postconviction motion,
    but specifically ruled on his claims that the State suppressed
    information possessed by Allgood before Harris’ trial and by
    McClinton before Harris’ trial, direct appeal, or postconvic-
    tion proceedings. Harris appealed, which led to our decision
    in Harris V.
    In Harris V, we examined the record from the 2013 post-
    conviction hearing and took judicial notice of our previous
    records and decisions in Harris’ case. We determined that the
    district court properly denied relief on Harris’ claim that the
    State suppressed evidence of McClinton’s statements in his
    affidavit, but that it failed to apply the correct standard to
    Harris’ claim that the State suppressed Allgood’s statements at
    Harris’ 1999 murder trial and failed to address Harris’ claims
    from the third amended postconviction motion concerning the
    State’s plea agreement with Hicks. We affirmed in part, and in
    part reversed and remanded for further proceedings to clarify
    which postconviction motion the court intended to rule on in
    the March 2016 order and, if necessary, to enter an order to
    dispense with all of Harris’ claims for relief:
    The court’s reasoning that no suppression occurred
    because the prosecutor did not know about Allgood’s
    statements to investigators was incorrect. Under both
    federal and state law, the prosecutor had a duty to learn
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    STATE v. HARRIS
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    of favorable material evidence known to others acting on
    the government’s behalf in the case. Thus, the State’s duty
    to disclose favorable material evidence existed even if the
    evidence was known only to police investigators and not
    to the prosecutor.
    Further, the court’s summary conclusion that Allgood’s
    statements were not exculpatory did not comply with
    the applicable standards for evaluating Harris’ claims.
    Favorable evidence includes both exculpatory and
    impeachment evidence.
    Harris alleged in his motion that Allgood’s statements
    would have corroborated his alibi defense and contra-
    dicted Hicks’ testimony that he left the murder scene
    with Harris and drove around with him, disposing of
    evidence and distributing the money. Harris also alleged
    that he would have cross-examined Hicks about his con-
    tacts with [Corey] Bass[, an alleged drug dealer for
    whom McClinton said Hicks killed people]. His trial
    attorney stated that knowing whether Hicks “was with
    others or alone in terms of the story that he related”
    may have undermined Hicks’ credibility and reinforced
    Harris’ alibi.
    The court did not consider whether Allgood’s state-
    ments to the officer would have impeached Hicks’ cred-
    ibility. Nor did the court explain why it concluded that
    Allgood’s statements were not “potentially exculpatory
    information.”
    As explained, we do not have the bill of exceptions
    from Harris’ trial. Whether the State suppressed mate-
    rial exculpatory information by not disclosing Allgood’s
    statements must be evaluated in the light of the trial
    evidence. The court’s summary conclusion does not sat-
    isfy that requirement. Accordingly, we remand the cause
    for further clarification as to whether Allgood’s state-
    ments were not exculpatory or would not have impeached
    Hicks’ credibility.
    ....
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    STATE v. HARRIS
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    [W]e cannot determine from the record whether the
    district court intentionally or erroneously failed to rule on
    Harris’ claims regarding Hicks’ plea agreement. Though
    an argument can be made that the parties consented to
    try all of the claims set forth in Harris’ third amended
    motion for postconviction relief, making such determina-
    tion would be needlessly speculative. The better course
    is for this matter to be remanded to the district court for
    clarification as to which motion the court intended to
    rule on and, if necessary, the entry of an order which dis-
    penses with all of Harris’ claims for relief.
    ....
    We conclude that the court properly denied relief
    on Harris’ claim that the State suppressed evidence of
    McClinton’s statements in his affidavit. We conclude that
    the court applied the wrong standards in denying Harris
    relief on his claim that the State suppressed Allgood’s
    statements to police by focusing only on the prosecutor’s
    knowledge of Allgood’s statements, by failing to consider
    whether Allgood’s statements would have impeached
    Hicks’ credibility, and by failing to examine whether
    Allgood’s statements were material in the light of the
    trial evidence. Finally, the court erred in failing to accu-
    rately set forth which motion for postconviction relief it
    intended to address.
    If the court concludes that the State suppressed mate-
    rial evidence regarding Allgood’s statements to police or
    Hicks’ plea agreement, it must evaluate the materiality
    of that suppression cumulatively. That is, the prejudicial
    effect of any new suppression must be considered cumu-
    latively with the State’s known suppression of [Officer
    Leland Cass’ police] report.
    Harris 
    V, 296 Neb. at 342-46
    , 893 N.W.2d at 458-60. Following
    the release of our opinion, we issued our mandate ordering the
    district court to “proceed to enter judgment in conformity with
    the judgment and opinion of this court.”
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    STATE v. HARRIS
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    307 Neb. 237
    2. New Trial Order
    On June 15, 2017, after our mandate in Harris V issued,
    Harris filed his third amended motion for postconviction relief,
    which he had previously been given leave to file, along with a
    motion for new trial based on newly discovered evidence. See
    Neb. Rev. Stat. § 29-2101(5) (Reissue 2016). In his motion for
    new trial, Harris alleged (1) that Hicks disclosed to McClinton
    that Hicks had lied during his testimony and that Hicks alone,
    not Harris, had killed the victim; (2) that Allgood corroborated
    McClinton’s account of Hicks’ statement; (3) that the prosecu-
    tor misrepresented or allowed Hicks to misrepresent Hicks’
    plea agreement during Harris’ trial, documentation of which
    Harris’ counsel obtained in 2010; and (4) that another witness
    at Harris’ trial, Tony Bass, later told another inmate that he had
    lied during his testimony. Harris referenced supporting affida-
    vits and other documentary evidence attached to the motion.
    He concluded by requesting a hearing to substantiate his claims
    by affidavit or testimony.
    A hearing was held on Harris’ motions on July 24, 2017,
    Judge William B. Zastera presiding. The parties presented
    arguments, but no evidence was offered or received.
    On September 21, 2017, the district court entered an order
    granting Harris’ motion for new trial and dismissing Harris’
    third amended motion for postconviction relief.
    Relevant to the mandate in Harris V, the district court stated:
    On March 3, 2016, this Court denied [Harris’] Amended
    Second Verified Motion for Postconviction Relief.
    [Harris] timely appealed and the Nebraska Supreme Court
    affirmed in part and reversed in part this Court’s prior
    decision. . . .
    At this juncture, [Harris] has filed a Third Amended
    Verified Motion for Postconviction Relief and a Motion
    for New Trial (Newly Discovered Evidence). In light of
    the Nebraska Supreme Court’s findings in [Harris V], the
    Court now considers the current motions filed by [Harris].
    Quoting language from Harris IV, the district court deter-
    mined that it had to consider Harris’ motion for new trial
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    before addressing the third amended motion for postconvic-
    tion relief. The district court noted our finding in Harris IV
    that Harris’ previous motion for new trial was barred by the
    then-applicable statute of limitations, but found that the cur-
    rent motion was not time barred by the current version of
    § 29-2103(4) (Reissue 2016). That section requires motions for
    new trial based on newly discovered evidence to be brought
    within 5 years of the verdict “unless the motion and support-
    ing documents show the new evidence could not with reason-
    able diligence have been discovered and produced at trial and
    such evidence is so substantial that a different result may have
    occurred.” § 29-2103(4). Accord § 29-2101(5).
    The district court went on to observe that traditionally, new
    trial was not granted for issues of impeachment, but that where
    it appears the defendant has not been afforded a fair trial, it is
    the court’s duty to grant new trial. See State v. Robinson, 
    198 Neb. 785
    , 
    255 N.W.2d 835
    (1977). Moreover, it noted that in
    the context of Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    ,
    
    10 L. Ed. 2d 215
    (1963), impeachment evidence can be of such
    a weight that depriving the defendant of access to it can change
    the outcome of trial. The district court stated that it was unclear
    whether Harris would be procedurally barred from obtaining
    a new trial under § 29-2103, but that it believed Harris was
    entitled to a new trial because his constitutional rights had been
    implicated. The court continued:
    First, after reviewing the Bill of Exceptions, it is appar-
    ent to this Court that material evidence was suppressed
    at [Harris’] trial, whether done so intentionally or not.
    Regardless of intent, it is clear that the entirety of [an offi-
    cer’s] police report was not disclosed which contained the
    exculpatory statements of . . . Allgood. Further, it is pos-
    sible, that Allgood’s statements to the officer would have
    corroborated [Harris’] alibi defense and permitted him to
    impeach . . . Hicks’ credibility at [Harris’] trial. Second,
    the Court finds that a new trial is also warranted because
    the evidence reflects that the prosecutor misrepresented
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    or allowed Hicks to misrepresent the nature of Hicks’
    plea agreement during [Harris’] trial.
    The district court determined the suppression of this evidence
    to be material and prejudicial.
    The district court dismissed Harris’ third amended postcon-
    viction motion without prejudice pursuant to Harris IV and
    ordered him held without bail pending retrial.
    Within 10 days, on September 29, 2017, the State filed a
    motion “to reconsider, alter and/or amend” pursuant to Neb.
    Rev. Stat. § 25-1329 (Reissue 2016). The State asserted that
    the new trial order was made without receiving any evidence
    or conducting an evidentiary hearing and that it was based on
    incorrect legal standards. The State requested that the order be
    amended or vacated.
    As publicized and announced to the parties months before,
    on October 1, 2017, Judge Zastera retired.
    3. State Attempts to Appeal;
    Appeal Dismissed
    On October 23, 2017, before any ruling on its motion
    for reconsideration, the State filed a notice of appeal of the
    September 21 order for new trial. On December 11, this court
    issued an order to show cause within 10 days why the appeal
    should not be dismissed for lack of jurisdiction. The State did
    not respond and later acknowledged in a motion to extend
    brief date that it could not show cause. Harris moved to dis-
    miss the appeal for lack of jurisdiction, and on March 28,
    2018, we did so. On April 20, our mandate was filed in the
    district court.
    4. Order Ruling Motion for
    Reconsideration Moot and
    Granting Discharge
    On May 1, 2018, Chief Justice Michael G. Heavican
    appointed Judge Nathan B. Cox to preside over this matter,
    replacing Judge Zastera.
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    On May 10, 2018, Harris moved for absolute discharge on
    speedy trial grounds pursuant to Neb. Rev. Stat. § 29-1207
    (Reissue 2016). He also moved to dismiss the State’s motion
    for reconsideration as inapplicable to criminal cases and
    untimely filed.
    On June 28, 2018, Judge Cox recused himself upon Harris’
    motion. On July 10, Chief Justice Heavican appointed Judge
    Jodi L. Nelson to preside, and the order was filed in the district
    court on July 16.
    Judge Nelson subsequently conducted a hearing on the
    pending motions. The following exchange occurred between
    counsel for the State and Judge Nelson:
    [State’s counsel]: Judge, I was wondering if we could
    take up the — uh — motion for discharge first. Because
    I think some of the documents that will pertain to the
    motion to reconsider — uh — I plan to offer during that,
    as well.
    If the Court — I guess — technically thought that there
    was merit to the motion for discharge, then I guess my
    motion to reconsider probably is moot. Uh, but that was
    just kind of my thought. I don’t know if —
    THE COURT: Well, we’re going to hear them all today.
    [State’s counsel]: Sure.
    THE COURT: (Laughs.) So, how I decide them may be
    another story; but I — I think we’re going to take them
    up all today so that we can get what is pending — uh —
    taken care of. I don’t particularly care what order you
    want to do that in.
    The parties proceeded to address the motion for absolute dis-
    charge first, then the motion for reconsideration.
    On February 4, 2019, Judge Nelson entered an order grant-
    ing Harris’ motion for absolute discharge and ruling moot the
    State’s motion for reconsideration and Harris’ motion to dis-
    miss it. Judge Nelson determined that the State was permitted
    to file a motion for reconsideration, but did not consider the
    merits of the motion and concluded that the State had failed
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    to show that any of the days between the September 21, 2017,
    order and Harris’ motion for discharge on May 10, 2018, were
    excludable for speedy trial purposes.
    5. Present Appeals
    On February 8, 2019, the State filed a notice of appeal
    from the district court order entered September 21, 2017, that
    granted Harris’ motion for new trial and from the order entered
    February 4, “2018,” that sustained Harris’ motion for absolute
    discharge and found the State’s motion for reconsideration
    moot. We docketed this appeal as case No. S-19-133.
    On the same date, the State filed an application for leave
    to docket exception proceedings pursuant to Neb. Rev. Stat.
    § 29-2315.01 (Cum. Supp. 2018), which we granted.
    On February 12, 2019, the district court granted the State’s
    motion to stay the February 4 discharge order pending appeal,
    “provided the State files any appeal today.”
    Within 30 days of this court’s approval, on February 21,
    2019, the State filed a notice of appeal in the district court pur-
    suant to § 29-2315.01 from the district court’s orders entered
    February 4, 2019, and September 21, 2017. We docketed this
    appeal as case No. S-19-130.
    On March 11, 2019, Harris moved to dismiss both appeals,
    which we have consolidated, for lack of jurisdiction. We over-
    ruled Harris’ motions to dismiss and reserved jurisdictional
    issues until plenary submission of appeals.
    The State has addressed both appeals in the same brief, with
    a single list of assigned errors.
    Harris has cross-appealed.
    II. ASSIGNMENTS OF ERROR
    The State assigns that the district court erred in (1) sustain-
    ing Harris’ motion for new trial and not sustaining the State’s
    motion for reconsideration, (2) sustaining Harris’ motion for
    speedy trial discharge, and (3) sustaining Harris’ objection to
    the prosecutor’s affidavit at the speedy trial discharge hearing.
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    On cross-appeal, Harris assigns that the district court erred
    in (1) finding that Judge Zastera’s order granting Harris’ motion
    for new trial was a final, appealable order and (2) determining
    that the State could move for reconsideration of that order and
    finding that Harris’ motion to dismiss the State’s motion for
    reconsideration was moot.
    III. STANDARD OF REVIEW
    [1,2] A question of jurisdiction is a question of law. State v.
    Uhing, 
    301 Neb. 768
    , 
    919 N.W.2d 909
    (2018). Appellate courts
    independently review questions of law decided by a lower
    court.
    Id. [3]
    The construction of a mandate issued by an appellate
    court presents a question of law, on which an appellate court is
    obligated to reach a conclusion independent of the determina-
    tion reached by the court below. State v. Henk, 
    299 Neb. 586
    ,
    
    909 N.W.2d 634
    (2018).
    IV. ANALYSIS
    [4] As noted above, the validity of the State’s appeals is in
    question, a matter we now must decide. 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. State v. Fredrickson, 
    305 Neb. 165
    , 
    939 N.W.2d 385
    (2020). This case comes to us under unusual circumstances.
    The State attempts to challenge the new trial order and the
    discharge order by filing not one but two notices of appeal,
    invoking two different mechanisms for review: first, a con-
    ventional direct appeal pursuant to Neb. Rev. Stat. § 25-1912
    (Cum. Supp. 2018), which we docketed as case No. S-19-133,
    and, later, exception proceedings pursuant to § 29-2315.01,
    docketed as case No. S-19-130.
    For reasons we will now explain, we conclude that the
    direct appeal conferred jurisdiction on this court as to both the
    new trial order and the discharge order, and we consider both
    orders on the merits in case No. S-19-133. Consequently, we
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    dismiss as moot the exception proceedings, docketed as case
    No. S-19-130.
    1. Case No. S-19-133: Direct Appeal
    (a) New Trial Order
    (i) State’s Right to Direct Appeal
    The first question that confronts us in this case is whether
    the State can appeal when a trial court grants a defendant’s
    motion for new trial after the time for direct appeal of a crimi-
    nal conviction has expired. The statutory scheme governing
    motions for new trial in criminal cases does not speak to the
    matter, see Neb. Rev. Stat. § 29-2101 et seq. (Reissue 2016),
    and neither party has directed us to any cases in which we have
    addressed this specific issue. We are thus faced with an issue
    of first impression.
    Harris contends that we need not spend much time on this
    issue, because the State is precluded from appealing by a
    well-established principle: that absent specific statutory autho-
    rization, the State generally has no right to appeal an adverse
    ruling in a criminal case. See State v. Thalken, 
    299 Neb. 857
    ,
    
    911 N.W.2d 562
    (2018). This principle bars the State’s appeal,
    Harris asserts, because the district court granted him a new
    criminal trial and the State can point to no specific statute
    authorizing an appeal. As we will explain, however, although
    the district court purported to grant Harris a new criminal trial,
    it does not follow that the new trial order itself was issued in
    a criminal case.
    In a number of contexts, we have held that the State may
    mount a direct appeal to challenge adverse rulings when an
    individual convicted and sentenced for a crime collaterally
    attacks his or her conviction and sentence. We have held that
    the State may appeal in habeas corpus proceedings, postcon-
    viction proceedings, and cases arising under the DNA Testing
    Act. See, e.g., State v. Thieszen, 
    295 Neb. 293
    , 
    887 N.W.2d 871
    (2016) (postconviction); Meyer v. Frakes, 
    294 Neb. 668
    , 
    884 N.W.2d 131
    (2016) (habeas corpus); State v. Pratt, 
    273 Neb. -
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    817, 
    733 N.W.2d 868
    (2007) (DNA Testing Act). See, also,
    State v. Jerke, 
    302 Neb. 372
    , 
    923 N.W.2d 78
    (2019) (reviewing
    State’s appeal from district court order granting defendant’s
    motion to vacate sentence and withdraw plea).
    The foregoing proceedings are civil in nature. From the
    earliest days of our state Constitution, habeas corpus pro-
    ceedings have been designated as civil, see Morrill v. Taylor,
    
    6 Neb. 236
    (1877), and that has remained unchanged, see,
    e.g., Sanders v. Frakes, 
    295 Neb. 374
    , 
    888 N.W.2d 514
    (2016). Similarly, postconviction proceedings are termed civil
    by statute and may be appealed as provided for appeals in
    civil cases. See Neb. Rev. Stat. §§ 29-3001(2) and 29-3002
    (Reissue 2016). See, also, State v. Stewart, 
    242 Neb. 712
    ,
    
    496 N.W.2d 524
    (1993) (citing U.S. Supreme Court opinion
    for proposition that postconviction proceedings are civil).
    By analogy, we have determined proceedings under the DNA
    Testing Act are also civil in nature because, like postconvic-
    tion proceedings, they too are a collateral attack on a convic-
    tion, not part of the criminal proceeding itself. See, State v.
    Pratt, supra; State v. Poe, 
    271 Neb. 858
    , 
    717 N.W.2d 463
    (2006). Recognizing the civil nature of proceedings under
    the DNA Testing Act and the absence of any restrictions on
    the State’s right to appeal under that act, we have held that the
    State may appeal from an adverse ruling in such a proceeding.
    See State v. Pratt, 
    287 Neb. 455
    , 
    842 N.W.2d 800
    (2014). As
    we will explain, the same reasoning leads us to conclude that
    the order that granted Harris’ motion for new trial based on
    newly discovered evidence was appealable by the State pursu-
    ant to § 25-1912.
    Like habeas corpus proceedings, postconviction proceed-
    ings, and proceedings under the DNA Testing Act, Harris’
    motion for new trial based on newly discovered evidence was
    a collateral attack on a final criminal judgment and not part of
    the criminal proceeding itself. When a judgment is attacked in
    a way other than by proceeding in the original action to have it
    vacated, reversed, or modified, or by a proceeding in equity to
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    prevent its enforcement, the attack is a collateral attack. State
    v. Barnes, 
    303 Neb. 167
    , 
    927 N.W.2d 64
    (2019). The frame-
    work under which Harris brought his motion for new trial fits
    this description.
    Harris sought a new trial pursuant to § 29-2101(5), under
    which relief may be granted based on “newly discovered evi-
    dence material for the defendant which he or she could not
    with reasonable diligence have discovered and produced at the
    trial” and which materially affects the defendant’s substantial
    rights. A motion for new trial alleging newly discovered evi-
    dence must be filed “within a reasonable time after the dis-
    covery of the new evidence” and “cannot be filed more than
    five years after the date of the verdict, unless the motion and
    supporting documents show the new evidence could not with
    reasonable diligence have been discovered and produced at
    trial and such evidence is so substantial that a different result
    may have occurred.” § 29-2103(4). In response to a motion
    for new trial under § 29-2101(5) and following a hearing,
    a court may “vacate and set aside the judgment and release
    the person from custody or grant a new trial as appropri-
    ate.” § 29-2102(3).
    Under § 29-2101(5), as in other collateral attacks, Harris
    sought to have the existing judgment vacated. Harris’ motion
    did not occur in the original criminal proceeding: Harris could
    and did move for new trial after the time for direct appeal had
    expired. Thus, like habeas corpus proceedings, postconviction
    proceedings, and proceedings under the DNA Testing Act,
    Harris’ motion for new trial based on newly discovered evi-
    dence was a collateral attack on a conviction, not part of the
    criminal proceeding itself, and therefore civil in nature. And
    like the law concerning other collateral attacks, no provision in
    the statutes governing new criminal trials restricts the State’s
    right to appeal. Accordingly, we conclude that the State has a
    right to file a direct appeal from an order granting a new trial
    in a criminal case based on newly discovered evidence after the
    time for direct appeal has expired.
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    Harris asserts that motions for new trial based on newly dis-
    covered evidence under § 29-2101(5), even when filed after the
    time to challenge the conviction and sentence on direct appeal
    has passed, are more similar to other motions for new trial
    than they are to proceedings under the DNA Testing Act. He
    cites State v. Bronson, 
    267 Neb. 103
    , 
    672 N.W.2d 244
    (2003),
    in which we noted the similarities between motions for new
    trial based on newly discovered evidence under § 29-2101(5)
    and those based on newly discovered DNA evidence under
    § 29-2101(6). In Bronson, we held that these motions were
    separate and distinct from the proceedings under Neb. Rev.
    Stat. § 29-4123(2) (Reissue 2016) of the DNA Testing Act such
    that an appeal arising from a motion to vacate and set aside
    a judgment under § 29-4123(2) does not deprive a trial court
    of jurisdiction to consider a motion for new trial filed under
    § 29-2101(6). However, we do not believe this holding makes
    motions for new trial based on newly discovered evidence any
    less collateral in nature.
    Harris also disputes that motions for new trial based on
    newly discovered evidence are civil in nature. He points out
    that the Legislature has adopted separate statutes governing
    motions for new trial in civil and criminal contexts and that
    the new trial statutes in chapter 29 of the Nebraska Revised
    Statutes are written in terms reflecting its criminal law appli-
    cation. See, Neb. Rev. Stat. § 25-1144 et seq. (Reissue 2016);
    § 29-2101 et seq. But the same could be said about postcon-
    viction proceedings and proceedings under the DNA Testing
    Act, and in the case of postconviction proceedings, we have
    stated that they are “not . . . ordinary civil action[s].” See State
    v. Robertson, 
    294 Neb. 29
    , 41, 
    881 N.W.2d 864
    , 875 (2016).
    Harris posits that this statement calls into question the ongoing
    validity of our previous determinations that proceedings under
    the DNA Testing Act are civil in nature. However, we disagree.
    Our holding in Robertson that civil pleading rules did not apply
    to postconviction proceedings did not make postconviction
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    proceedings or proceedings under the DNA Testing Act any
    less civil in nature.
    Harris argues that even if his motion for new trial was a
    civil proceeding, once it was granted, the matter reverted to
    a criminal proceeding, from which the State could not file a
    direct appeal. To illustrate, he points out that a defendant has
    no right to counsel during a collateral attack, see State v. Pratt,
    
    273 Neb. 817
    , 
    733 N.W.2d 868
    (2007), but does have a right
    to counsel in any new trial resulting therefrom. We agree that
    under such circumstances, any new trial following a collateral
    attack is criminal in nature, but the same is not true of the
    order granting the new trial. Indeed, in appeals involving col-
    lateral attacks, we have treated the resulting order as civil in
    nature. See, e.g.
    , id. Harris also relies
    on State v. Taylor, 
    179 Neb. 42
    , 
    136 N.W.2d 179
    (1965), for the proposition that there is no author-
    ity for an appellate court to reinstate a guilty verdict upon a
    State’s appeal from a new trial order and argues that therefore,
    the rights attending criminal matters should reattach. But as we
    explain in more detail in the next section, Harris misconstrues
    Taylor, an exception proceedings case in which we spoke of
    the necessity of rendering an advisory opinion, not the prac-
    ticalities of reinstating a conviction such as would arise in
    this case.
    Finally, Harris argues that this is not actually a case of first
    impression and that our precedent forecloses any possibility of
    review of his motion for new trial. Again, he points to State v.
    
    Taylor, supra
    , and the cases that followed it, State v. Martinez,
    
    198 Neb. 347
    , 
    252 N.W.2d 630
    (1977), and State v. Linn, 
    192 Neb. 798
    , 
    224 N.W.2d 539
    (1974). In those cases, we did not
    allow the State to appeal from an order granting new trial in
    a criminal case. However, unlike the instant case, none of the
    three cases upon which Harris relies involved a judgment,
    because the appeals in those cases were filed in the original
    criminal proceedings before the defendants were sentenced.
    See State v. Jackson, 
    291 Neb. 908
    , 
    870 N.W.2d 133
    (2015)
    (final judgment in criminal case means sentence).
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    In Taylor, the district court sustained the defendant’s motion
    for new trial following an adverse verdict; but significantly,
    Taylor does not reflect that the defendant was sentenced
    before this ruling. The State sought review under § 29-2315.01
    (Reissue 1964), and we dismissed the State’s appeal. In doing
    so, we discussed the necessity of a final order and character-
    ized the order in Taylor as interlocutory because further action
    was required: “It is apparent that an order setting aside a
    verdict and requiring a retrial does not dispose of the 
    cause.” 179 Neb. at 46
    , 136 N.W.2d at 182. In Linn, we applied the
    same rationale in dismissing the State’s exception proceed-
    ings challenging a new trial order that followed a defendant’s
    conviction, again with no mention of any sentence. And again,
    in Martinez, the defendant had not been sentenced for the con-
    viction for which he was granted a new trial, and under Taylor,
    we dismissed the State’s cross-appeal in the matter for lack of a
    final order. Because Taylor, Linn, and Martinez did not involve
    a collateral attack on a final criminal judgment, they do not
    govern the State’s right to appeal the order in this case.
    In sum, the State has the right to appeal an order granting a
    motion for new trial based on newly discovered evidence that
    has been filed after the time for direct appeal has expired. Yet
    our analysis of the validity of the State’s appeal of the new trial
    order is not at an end. We must next consider whether the State
    appeals from a final, appealable order.
    (ii) Final, Appealable Order
    [5,6] For an appellate court to acquire jurisdiction of an
    appeal, there must be a final order or final judgment entered
    by the court from which the appeal is taken. State v. Paulsen,
    
    304 Neb. 21
    , 
    932 N.W.2d 849
    (2019). Among the three types
    of final orders which may be reviewed on appeal is an order
    affecting a substantial right made during a special proceeding.
    See Neb. Rev. Stat. § 25-1902 (Reissue 2016). For the reasons
    below, we conclude that the order granting Harris’ motion for
    new trial based on newly discovered evidence was this type of
    final order.
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    [7] First, the order granting Harris’ motion for new trial
    based on newly discovered evidence was made in a special pro-
    ceeding. Special proceedings entail civil statutory remedies not
    encompassed in chapter 25 of the Nebraska Revised Statutes
    and have also been described as every special statutory remedy
    which is not in itself an action. See State v. Pratt, 
    287 Neb. 455
    , 
    842 N.W.2d 800
    (2014). An action involves prosecuting
    the alleged rights between the parties and ends in a final judg-
    ment, whereas a special proceeding does not. State v. Loyd, 
    269 Neb. 762
    , 
    696 N.W.2d 860
    (2005). Where the law confers a
    right, and authorizes a special application to a court to enforce
    it, the proceeding is special, within the ordinary meaning of the
    term “special proceeding.”
    Id. A special proceeding
    is not an
    integral part of or a step in the action; it is not part of what is
    sometimes referred to as the “main case.” See State v. Vela, 
    272 Neb. 287
    , 
    721 N.W.2d 631
    (2006).
    Under these principles, Harris’ motion for new trial initi-
    ated a special proceeding. As we have explained in the sec-
    tion above, Harris’ motion was civil in nature, not part of the
    criminal proceeding itself. That is, having been filed long after
    judgment, it was not part of the main case. And it bore other
    hallmarks of a special proceeding. Section 29-2101(5) confers
    a right to a new trial upon the discovery of new evidence that
    fits certain criteria and also authorizes a special application to a
    court to enforce the right. Harris’ motion requested a new trial
    and alleged facts to support the claim that a new trial was war-
    ranted. He did not seek a final judgment.
    Harris argues that a motion for new trial does not fit the
    description of a special proceeding, because it is in itself an
    action. He refers to cases in which we have determined that
    the district court may exercise jurisdiction over motions for
    new trial based on § 29-2101(5) and (6) at the same time as
    this court exercises jurisdiction over a direct appeal or an
    appeal under the DNA Testing Act. See, State v. Bronson, 
    267 Neb. 103
    , 
    672 N.W.2d 244
    (2003); Smith v. State, 
    167 Neb. 492
    , 
    93 N.W.2d 499
    (1958). However, we do not understand
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    how the separate and independent nature of these types of
    proceedings could alter the character of a motion for new trial
    based on newly discovered evidence.
    [8-10] Second, the order that granted Harris’ motion for new
    trial based on newly discovered evidence affected a substantial
    right of the State. Whether an order affects a substantial right
    for purposes of appeal depends on a number of factors. See
    State v. Fredrickson, 
    305 Neb. 165
    , 
    939 N.W.2d 385
    (2020).
    The inquiry focuses on whether the right at issue is substantial
    and whether the court’s order has a substantial impact on that
    right.
    Id. Regarding the importance
    of the right affected, we
    often state that a substantial right is an essential legal right,
    not merely a technical right. See State v. Paulsen, 
    304 Neb. 21
    ,
    
    932 N.W.2d 849
    (2019). Whether an order affects a substantial
    right depends on whether it affects with finality the rights of
    the parties in the subject matter. State v. 
    Fredrickson, supra
    . It
    also depends on whether the right could otherwise effectively
    be vindicated.
    Id. An order affects
    a substantial right when the
    right would be significantly undermined or irrevocably lost by
    postponing appellate review.
    Id. We conclude that
    because the State had already obtained
    a criminal judgment, the order that granted Harris’ motion
    for new trial based on newly discovered evidence affected
    a substantial right of the State. Both this court and the U.S.
    Supreme Court have recognized the State’s interest in the
    finality of criminal judgments of conviction. See, e.g., Ramos
    v. Louisiana, ___ U.S. ___, 
    140 S. Ct. 1390
    , 
    206 L. Ed. 2d 583
    (2020); United States v. Frady, 
    456 U.S. 152
    , 
    102 S. Ct. 1584
    , 
    71 L. Ed. 2d 816
    (1982); State v. Louthan, 
    257 Neb. 174
    , 
    595 N.W.2d 917
    (1999); State v. Lee, 
    251 Neb. 661
    , 
    558 N.W.2d 571
    (1997). This finality interest is premised in part
    on the significant expenditure of the State’s time and resources
    required to secure a criminal conviction. “‘“Society’s resources
    have been concentrated at [the time of trial] in order to decide,
    within the limits of human fallibility, the question of guilt or
    innocence of one of its citizens.”’” State v. Lotter, 
    278 Neb. 466
    , 481, 
    771 N.W.2d 551
    , 563 (2009), quoting Herrera v.
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    Collins, 
    506 U.S. 390
    , 
    113 S. Ct. 853
    , 
    122 L. Ed. 2d 203
    (1993). It also rests on the fact that “with the passage of time
    and the erosion of memory and the dispersion of witnesses,
    there is no guarantee that the truth-seeking function of a new
    trial would be any more exact than the first trial.”
    Id. at 481, 771
    N.W.2d at 563. And courts have observed that without
    finality, the criminal law is deprived of much of its deterrent
    effect. See, e.g., McCleskey v. Zant, 
    499 U.S. 467
    , 
    111 S. Ct. 1454
    , 
    113 L. Ed. 2d 517
    (1991) (superseded by statute on other
    grounds as stated in Banister v. Davis, ___ U.S. ___, 
    140 S. Ct. 1698
    , 
    207 L. Ed. 2d 58
    (2020)).
    We further determine that the order granting Harris’ motion
    for new trial had a substantial impact on the State’s right. An
    order granting new trial following a conviction significantly
    undermines the State’s interest in finality. The State cannot
    recoup the costs occasioned by a new trial, and if the defendant
    is ultimately acquitted, the State cannot lodge a direct appeal to
    seek reinstatement of the conviction. See State v. Thalken, 
    299 Neb. 857
    , 
    911 N.W.2d 562
    (2018) (generally, State has no right
    to appeal adverse ruling in criminal case).
    At oral argument, Harris asserted that criminal new trial
    statutes do not expressly address the State’s substantial rights,
    only the defendant’s. See § 29-2101(5). While this is true,
    it does not negate the State’s substantial right as we have
    described it. Furthermore, our finding that the State has a
    substantial right in the finality of a criminal conviction, and
    therefore the ability to appeal following the grant of a new
    trial based on newly discovered evidence, does not impinge on
    a defendant’s right to seek a new trial; it only allows for the
    possibility of appellate review to ensure a grant of a new trial
    is properly ordered.
    Harris claims we have previously held that an order grant-
    ing a motion for new trial in a criminal case is not a final,
    appealable order. He relies on three cases mentioned above:
    State v. Taylor, 
    179 Neb. 42
    , 
    136 N.W.2d 179
    (1965); State
    v. Linn, 
    192 Neb. 798
    , 
    224 N.W.2d 539
    (1974); and State v.
    Martinez, 
    198 Neb. 347
    , 
    252 N.W.2d 630
    (1977). In each of
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    those cases, we rejected the State’s appellate challenge of an
    order granting a motion for new trial, stating in each case that
    the order appealed from was not final and appealable. But as
    we describe in more detail in the previous section, Taylor,
    Linn, and Martinez are distinguishable from this case, partly
    because, unlike Harris’ motion for new trial, the motions for
    new trial in those cases were not collateral attacks on a final
    criminal judgment.
    Taylor and Linn are further distinguishable from this case
    because they were decided under exception proceedings. In
    part, Taylor based its decision, which Linn followed, on rea-
    soning that were it to find the new trial order in error, the
    district court could be bound by that decision. This would run
    contrary to the legislative mandate that our holdings in excep-
    tion proceedings are advisory when the defendant has already
    been placed in jeopardy in the trial court. See Neb. Rev. Stat.
    § 29-2316 (Reissue 2016). This is not a concern in the instant
    case, because we have concluded that the State may challenge
    the new trial order in its direct appeal, a review process that
    cannot result in an advisory opinion. See State v. Molina,
    
    271 Neb. 488
    , 
    713 N.W.2d 412
    (2006) (stating that in direct
    appeal, it is not function of appellate court to render advi-
    sory opinions).
    Having determined that the new trial order is a final, appeal-
    able order, we proceed to consider the remaining requirements
    of appellate jurisdiction.
    (iii) Timely Perfection of Direct Appeal
    As we have explained, the State appeals from a final,
    appealable order, but there is one more hurdle to clear before
    we can reach the merits of the State’s challenge to the new
    trial order. We next must assess whether the State’s direct
    appeal from the new trial order was timely perfected. We con-
    clude that it was.
    As an initial matter, we take up Harris’ position that the
    State did not fulfill two of the basic requirements to perfect
    an appeal in case No. S-19-133: a notice of appeal and a
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    docket fee. First, Harris points out that the notice of appeal
    identifies the orders appealed from as having been filed on
    September 21, 2017, and February 4, “2018.” The new trial
    order was in fact entered on September 21, 2017, but the
    discharge order was entered on February 4, 2019. However,
    this error is not fatal to the State’s appeal. Section 25-1912,
    which governs the filing of an appeal, does not require that the
    order appealed from be correctly identified to confer appel-
    late jurisdiction. See Dominguez v. Eppley Transp. Servs., 
    277 Neb. 531
    , 
    763 N.W.2d 696
    (2009). Second, Harris claims that
    the record does not contain any indication that the docket fee
    for case No. S-19-133 has been paid as required to perfect an
    appeal. See, § 25-1912(1); Neb. Ct. R. App. P. § 2-101(A) (rev.
    2015). But upon an examination of our records, we are satis-
    fied that the docket fee has been timely deposited.
    With an adequate notice of appeal having been filed and
    the docket fee deposited, we need only examine whether the
    State’s notice of appeal was timely filed. See
    id. Generally, appeals must
    be filed within 30 days after the entry of the
    judgment, decree, or final order. § 25-1912(1). However, that
    period may be terminated by filing a motion to alter or amend
    within 10 days of the judgment. §§ 25-1329 and 25-1912(3).
    See, also, State v. Sims, 
    277 Neb. 192
    , 
    761 N.W.2d 527
    (2009).
    A new period of 30 days for filing a notice of appeal com-
    mences when the terminating motion is ordered dismissed.
    Id. Here, the State
    filed a valid terminating motion in the form of
    a “Motion for Reconsideration.”
    Typically, a motion for reconsideration does not terminate
    the time for appeal and is considered nothing more than an
    invitation to the court to consider exercising its inherent power
    to vacate or modify its own judgment. See State v. Lotter, 
    301 Neb. 125
    , 
    917 N.W.2d 850
    (2018), citing Kinsey v. Colfer,
    Lyons, 
    258 Neb. 832
    , 
    606 N.W.2d 78
    (2000). For this reason,
    we have held that once a notice of appeal is filed, any pending
    motions to reconsider that have not been ruled upon become
    moot. See Kinsey v. Colfer, 
    Lyons, supra
    . Harris asserts that
    is what happened to the State’s motion for reconsideration
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    when the State filed its initial unsuccessful appeal, which we
    dismissed for lack of jurisdiction. But Harris is mistaken, as
    we will explain.
    In some contexts, a motion for reconsideration may also be
    treated as a motion to alter or amend a judgment for purposes
    of terminating the appeal period. State v. 
    Lotter, supra
    . To be
    treated as a motion to alter or amend a judgment, a motion for
    reconsideration must be filed no later than 10 days after the
    entry of judgment and seek substantive alteration of the judg-
    ment. See
    id. See, also, State
    v. Gibilisco, 
    279 Neb. 308
    , 
    778 N.W.2d 106
    (2010).
    The State’s motion for reconsideration meets the criteria to
    be treated as a terminating motion. It was filed on September
    29, 2017, less than 10 days after the new trial order was entered
    on September 21. The motion for reconsideration sought sub-
    stantive alteration of the new trial order by asking that the court
    alter, amend, or vacate it because it was “based on precepts and
    legal standards reserved for Motions for Post-Conviction Relief
    and not on the requisite standards and precepts required to be
    considered, analyzed and addressed in an order granting or
    denying a Motion for New Trial.”
    The State’s motion for reconsideration remained pending,
    even when the State filed its first appeal to this court, which
    we dismissed for lack of jurisdiction. Under § 25-1912(3), a
    notice of appeal filed before a pending terminating motion has
    been dismissed shall have no effect. But the terminating motion
    continues to operate until it is dismissed, even if the proponent
    attempts to appeal in the meantime. See § 25-1912(3).
    With the motion for reconsideration operating as a terminat-
    ing motion pursuant to § 25-1912, the State’s 30-day appeal
    period commenced when the district court dismissed the motion
    for reconsideration as moot on February 4, 2019. The State
    filed its notice of appeal in case No. S-19-133 on February 8.
    Therefore, the State’s direct appeal was timely.
    Harris challenges the validity of the State’s motion for
    reconsideration as a terminating motion on two bases. First,
    he argues that such a terminating motion is reserved for civil
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    cases and thus could not serve as a terminating motion in this
    matter. Second, Harris claims that by not obtaining an earlier
    ruling, the State waived or abandoned the motion or filed it in
    bad faith. We reject both of these arguments.
    In support of his first point, Harris mainly asserts that
    because the statutes relating to terminating motions are
    located in the chapter addressing civil procedure, they cannot
    apply to the new trial order arising from a motion filed under
    § 29-2101(5), which is located in the chapter addressing crimi-
    nal procedure. Like Harris’ previous arguments that the motion
    for new trial based on newly discovered evidence is not civil
    in nature, this argument also fails, and for the same reasons.
    As we have explained, such motions are civil in nature, simi-
    lar to habeas corpus proceedings, postconviction proceedings,
    and proceedings under the DNA Testing Act. And we have
    previously allowed motions to alter or amend under § 25-1329
    in postconviction proceedings, including when filed by the
    State. See, State v. Gibilisco, 
    279 Neb. 308
    , 
    778 N.W.2d 106
    (2010) (State’s motion for reconsideration treated as motion
    to alter or amend); State v. Sims, 
    277 Neb. 192
    , 
    761 N.W.2d 527
    (2009) (defendant filed motion to alter or amend); State
    v. Bao, 
    269 Neb. 127
    , 
    690 N.W.2d 618
    (2005) (defendant’s
    motion to alter or amend treated as terminating motion). While
    our postconviction statutes do specifically provide that appeals
    may be taken from the district court as provided for appeals
    in civil cases, see § 29-3002, that provision did not dissuade
    us from allowing a civil appeal path in cases involving pro-
    ceedings under the DNA Testing Act, even though that statu-
    tory scheme contains no comparable provision and is located
    in chapter 29 of the Nebraska Revised Statutes. See, State v.
    Pratt, 
    287 Neb. 455
    , 
    842 N.W.2d 800
    (2014); Neb. Rev. Stat.
    § 29-4116 et seq. (Reissue 2016). Today, we reach the same
    conclusion regarding an order granting a motion for new trial
    based on newly discovered evidence that has been filed after
    the time for direct appeal has expired. It logically follows
    that the appeal process in this case would allow for terminat-
    ing motions.
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    We discern no provision of law that would preclude the
    State from filing a motion for reconsideration that operates as
    a terminating motion in this case. Indeed, we have recognized
    that “[j]udicial efficiency is served when any court . . . is given
    the opportunity to reconsider its own rulings, either to supple-
    ment its reasoning or correct its own mistakes.” See State v.
    Hausmann, 
    277 Neb. 819
    , 827, 
    765 N.W.2d 219
    , 225 (2009),
    overruled on other grounds, McEwen v. Nebraska State Coll.
    Sys., 
    303 Neb. 552
    , 
    931 N.W.2d 120
    (2019) (statute governing
    motions to alter or amend judgment applies to judgment of dis-
    trict court acting as intermediate appellate court).
    We are also unpersuaded by the arguments Harris makes
    in support of his position that the motion to reconsider was
    waived, was abandoned, or was pursued in bad faith. Harris
    argues that the State waived the right to rely on the motion
    for reconsideration as a terminating motion by not setting the
    matter for hearing and securing a ruling before its initial unsuc-
    cessful attempt to appeal. For support, Harris relies on State
    v. Aldaco, 
    271 Neb. 160
    , 
    710 N.W.2d 101
    (2006). In Aldaco,
    the defendant filed a pro se notice of appeal after his motion
    for speedy trial discharge was orally overruled and the mat-
    ter proceeded to trial. The appeal was dismissed for lack of
    jurisdiction because no file-stamped order had been entered
    by the trial court. The defendant did not seek further review.
    The trial court subsequently entered a written order, which the
    defendant appealed within 30 days. We concluded that regard-
    less of whether the first appeal should have been dismissed,
    the 30-day period to appeal began to run after the trial court
    orally overruled the motion and proceeded to trial, and that
    the second notice of appeal was filed out of time. We do not
    understand how the holding in Aldaco warrants a waiver of the
    motion for reconsideration in this case. Aldaco did not deal
    with a terminating motion, and our jurisprudence concerning
    terminating motions does not address waiver.
    Harris also asserts that the motion for reconsideration should
    have no effect because the State abandoned it by failing to
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    pursue it once it was filed. Harris relies on the proposition that
    a motion which is never called to the attention of the court is
    presumed to have been waived or abandoned by the moving
    party and that where no ruling appears to have been made on a
    motion, the presumption is, unless it otherwise appears, that the
    motion was waived or abandoned. See, ACI Worldwide Corp.
    v. Baldwin Hackett & Meeks, 
    296 Neb. 818
    , 
    896 N.W.2d 156
    (2017); Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply,
    Inc., 
    235 Neb. 207
    , 
    454 N.W.2d 671
    (1990).
    Harris seems to characterize observations made by Judge
    Nelson that the State failed to obtain a hearing date in compli-
    ance with local rules as a finding that the State abandoned the
    motion for reconsideration. We do not read the discharge order
    that way, and we do not believe the State abandoned its motion
    for reconsideration. Failure to set a hearing date in accordance
    with a local rule does not invalidate a terminating motion; the
    statutes governing terminating motions do not require it. See
    Lombardo v. Sedlacek, 
    299 Neb. 400
    , 
    908 N.W.2d 630
    (2018).
    Further, the State did bring the motion for reconsideration to
    the district court’s attention. The district court held a hearing
    on the motion before ultimately dismissing it as moot. This is
    not a case where the motion was never brought to the attention
    of the court.
    Similarly, we are not convinced by Harris’ argument that
    the State’s motion for reconsideration should not operate as
    a terminating motion due to the State’s “dubious actions” or
    bad faith. See brief for appellee on cross-appeal at 83. Harris
    cites State v. Bao, 
    269 Neb. 127
    , 
    690 N.W.2d 618
    (2005),
    where we treated the defendant’s motion for reconsideration
    as a terminating motion, even though the defendant had with-
    drawn it. Citing to a similar federal case, we concluded that a
    new 30-day appeal period began after the withdrawal because
    there was no indication that the terminating motion was filed
    and withdrawn in bad faith. In the present case, the State never
    withdrew its terminating motion, and we do not discern bad
    faith on the part of the State.
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    In short, none of the arguments raised by Harris on this sub-
    ject have merit. The State’s direct appeal in case No. S-19-133
    was timely perfected and has met the other requirements for
    our appellate jurisdiction to review the new trial order.
    (iv) Merits: New Trial Order’s Noncompliance
    With This Court’s Mandate
    As we have established, we have appellate jurisdiction to
    review the new trial order. Even so, Harris makes one last
    argument that we should not consider the State’s arguments
    regarding it. According to Harris, comments by the State’s
    counsel at the hearing on the State’s motion for reconsidera-
    tion and Harris’ motion to discharge waived as invited error
    any opposition to the district court’s ruling that the motion for
    reconsideration was denied as moot.
    At the hearing, counsel for the State, during a discussion
    about which order should be addressed first, remarked, “If the
    Court — I guess — technically thought that there was merit to
    the motion for discharge, then I guess my motion to reconsider
    probably is moot. Uh, but that was just kind of my thought. I
    don’t know if — [.]” It is true that a party cannot complain of
    error which he or she has invited the court to commit. State v.
    Dixon, 
    286 Neb. 157
    , 
    835 N.W.2d 643
    (2013). But we do not
    consider a party’s equivocal suggestion of the possibility of an
    adverse ruling, during a discussion about the order in which
    matters would be addressed at the hearing, to be the equivalent
    of inviting error.
    Turning now to the State’s arguments regarding the new trial
    order, the State contends that the new trial order was erroneous
    because the district court did not receive any evidence to sup-
    port it, because the court applied the wrong standard in grant-
    ing it, and because the motion for new trial is meritless. The
    State’s arguments may be correct, but we need not and, in fact,
    cannot decide them because of a more fundamental problem
    with the district court’s new trial order identified by the State:
    In granting Harris’ motion for new trial, the district court did
    not comply with our mandate in Harris V.
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    [11-13] In appellate procedure, a “remand” is an appellate
    court’s order returning a proceeding to the court from which
    the appeal originated for further action in accordance with the
    remanding order. TransCanada Keystone Pipeline v. Tanderup,
    
    305 Neb. 493
    , 
    941 N.W.2d 145
    (2020). After receiving a man-
    date, a trial court is without power to affect rights and duties
    outside the scope of the remand from an appellate court.
    Id. When a lower
    court is given specific instructions on remand,
    it must comply with the specific instructions and has no dis-
    cretion to deviate from the mandate. See
    id. To carry out
    its
    unqualified duty to follow the mandate issued by an appellate
    court, a lower court may not modify a judgment directed by
    an appellate court; nor may it engraft any provision on it or
    take any provision from it. State v. Payne, 
    298 Neb. 373
    , 
    904 N.W.2d 275
    (2017).
    Guided by these principles, we turn now to the question of
    whether the district court’s new trial order was in accordance
    with the specific mandate of Harris V. Where the mandate
    incorporates the appellate court’s opinion by reference, we
    examine the opinion in conjunction with the mandate to deter-
    mine how the lower court should have proceeded. See State
    v. 
    Payne, supra
    . In Harris V, our mandate ordered the district
    court to “proceed to enter judgment in conformity with the
    judgment and opinion of this court.” Our opinion in Harris V
    instructed the district court, upon remand, to clarify whether it
    had addressed Harris’ second postconviction motion or third
    amended postconviction motion and to apply the correct stan-
    dard to Harris’ claims concerning the suppression of Allgood’s
    statements, an issue raised in both motions. Finally, we directed
    the district court to rule, if necessary, on Harris’ claims raised
    in the third amended motion for postconviction relief regarding
    Hicks’ plea agreement.
    On remand, the district court clarified that its previous
    order pertained to the second postconviction motion, but its
    compliance with our mandate stopped there. After identifying
    the second postconviction motion as the subject of its previ-
    ous order, the district court did not address the suppression of
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    Allgood’s statements in the context of that motion, as clearly
    directed by Harris V. Instead, it took up that analysis in the
    context of Harris’ later-filed motion for new trial. Because
    it disposed of the matter based on the motion for new trial,
    the district court dismissed the third amended postconviction
    motion without prejudice. This was not in compliance with
    our mandate.
    Harris argues that the new trial order was not beyond the
    scope of our mandate in Harris V. He bases this argument
    on the premise that the motion for new trial was completely
    separate and independent from any postconviction proceed-
    ings. Harris primarily relies on Smith v. State, 
    167 Neb. 492
    , 
    93 N.W.2d 499
    (1958), where we held that the trial court should
    consider a motion for new trial based on newly discovered
    evidence at the same time as direct appellate review of the
    criminal conviction. We determined that the two proceed-
    ings “should be conducted separately and independently of
    each other” and that neither the Legislature nor our case law
    regarded this situation as an invasion of the appellate court’s
    jurisdiction.
    Id. at 494, 93
    N.W.2d at 500. See, also, State v.
    Bronson, 
    267 Neb. 103
    , 
    672 N.W.2d 244
    (2003) (based on
    Smith, lower court had jurisdiction to consider motion for new
    trial based on newly discovered exculpatory DNA testing evi-
    dence under § 29-2101(6) (Cum. Supp. 2002) during pendency
    of appeal of denial of motion to vacate and set aside judgment
    under DNA Testing Act). Harris asserts not only that the dis-
    trict court was permitted by Smith to consider his motion for
    new trial separately from the postconviction issues on remand,
    but that our holding in Harris IV required the court to con-
    sider the motion for new trial first. In Harris IV we held that
    a court presented with a postconviction motion simultaneously
    with a motion seeking relief under another remedy must first
    determine whether the defendant is entitled to relief under the
    nonpostconviction remedy.
    However, unlike the present case, neither Smith and its prog-
    eny nor Harris IV involved the lower court’s implementation
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    of an appellate court’s mandate on remand. In Smith, we
    observed that the trial court was not required to delay the
    exercise of its original jurisdiction to consider the motion for
    new trial because “no such restriction of power is declared”
    by the Legislature or by our 
    jurisprudence. 167 Neb. at 494
    -
    
    95, 93 N.W.2d at 501
    . But our mandate in the instant case
    introduced restrictions that barred the district court from con-
    sidering Harris’ motion for new trial before it carried out
    our mandate.
    Our mandate jurisprudence is clear: A trial court is with-
    out power to affect rights and duties outside the scope of
    the remand from an appellate court. See State v. Payne, 
    298 Neb. 373
    , 
    904 N.W.2d 275
    (2017). And, as noted above,
    we have consistently held that when a lower court is given
    specific instructions on remand, it must comply with the spe-
    cific instructions and has no discretion to deviate from the
    mandate. TransCanada Keystone Pipeline v. Tanderup, 
    305 Neb. 493
    , 
    941 N.W.2d 145
    (2020). Allowing expansion of the
    issues on remand in this manner would not serve the public
    interest in finality of the litigation process. See Jurgensen v.
    Ainscow, 
    160 Neb. 208
    , 
    69 N.W.2d 856
    (1955). We applied
    these principles in State v. Henk, 
    299 Neb. 586
    , 
    909 N.W.2d 634
    (2018), where our mandate required the district court to
    conduct an evidentiary hearing on a single postconviction
    claim. On remand, the district court gave the defendant leave
    to amend his motion for postconviction relief to add an addi-
    tional claim, conducted an evidentiary hearing on both claims,
    and denied postconviction relief. On appeal, we held that a
    defendant cannot be allowed to assert new claims on remand
    when he or she is entitled to an evidentiary hearing on other
    claims and that the district court acted outside the scope of our
    mandate. See, also, State v. Shelly, 
    279 Neb. 728
    , 
    782 N.W.2d 12
    (2010). For the same reasons, the district court in this case
    was required to follow the directives of our Harris V mandate
    first, before entertaining any subsequent motions. This it did
    not do.
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    As we have explained, Harris V required the district court
    to clarify whether its previous order had addressed the second
    motion or third amended motion for postconviction relief; to
    consider Allgood’s statements in the context of the postconvic-
    tion motion from which Harris had appealed; and, if necessary,
    to rule on Harris’ claims raised in the third amended motion
    for postconviction relief regarding Hicks’ plea agreement. The
    district court clarified that its previous order addressed Harris’
    second motion, but failed thereafter to comply with our man-
    date. It did not consider Allgood’s statements in the context of
    a postconviction motion as we directed, and it did not rule on
    Harris’ claims raised in the third amended motion for postcon-
    viction relief regarding Hicks’ plea agreement.
    [14,15] Because everything in the district court’s September
    21, 2017, order, aside from the court’s clarification that its pre-
    vious order addressed Harris’ second postconviction motion,
    did not comply with our mandate in Harris V, we have no
    choice but to vacate it. The district court’s subject matter juris-
    diction immediately upon remand was limited to carrying out
    our mandate. See State v. 
    Payne, supra
    . And “[n]o judgment or
    order different from, or in addition to, the appellate mandate
    can have any effect.”
    Id. at 379, 904
    N.W.2d at 280. Because a
    trial court is without power to affect rights and duties outside
    the scope of the remand from an appellate court, any order
    attempting to do so is entered without jurisdiction and is void.
    Id. In breaching our
    mandate, the district court acted outside
    its jurisdiction and entered a void order, which we have the
    power to vacate. See In re Interest of Trey H., 
    281 Neb. 760
    ,
    
    798 N.W.2d 607
    (2011).
    Based on the reasons above, we vacate the September 21,
    2017, order, with the exception of the finding that the order
    appealed from in Harris V addressed the second motion for
    postconviction relief, and remand the cause for ­compliance
    with this court’s mandate in Harris V. To comply with our
    mandate in Harris V and this opinion, the district court shall
    consider Harris’ postconviction claim based on Allgood’s
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    statements and the claim in his third amended motion regard-
    ing Hicks’ plea agreement. With the aforementioned exception,
    the vacated portion of the order encompasses every factual and
    legal finding made by the district court, including those per-
    taining to the motion for new trial; and because none of these
    vacated findings were within the district court’s subject matter
    jurisdiction to decide, they shall not operate as the law of the
    case on remand.
    (b) Discharge Order
    (i) State’s Right to Direct Appeal
    We now turn to the order granting Harris’ motion for dis-
    charge on speedy trial grounds. As with the new trial order, we
    must first determine whether the State has the right to chal-
    lenge it with a direct appeal. We conclude that it does.
    As with the new trial order, Harris relies on the principle
    that absent specific statutory authorization, the State generally
    has no right to appeal an adverse ruling in a criminal case.
    Harris claims this precludes the State’s direct appeal of the
    discharge order. But whatever merit Harris’ argument might
    have if the State were appealing an ordinary order granting a
    defendant’s motion for absolute discharge, it must be recalled
    that the order that purported to grant the new trial in this case
    was void. Because a void order has no legal effect, this did
    not effectively become a criminal case, and thus the principle
    Harris invokes is inapplicable.
    As we have explained, the district court was permitted to
    act within a limited scope on remand from Harris V. The only
    matter properly before the court at that time was the resolu-
    tion of Harris’ postconviction claims. That is, the district court
    was conducting postconviction proceedings. Because the new
    trial order was void and had no effect, it could not effectively
    change the nature of the postconviction proceedings. We have
    allowed the State to file a direct appeal from postconviction
    proceedings. State v. Thieszen, 
    295 Neb. 293
    , 
    887 N.W.2d 871
    (2016). Therefore, we conclude that the discharge order is
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    reviewable on direct appeal by the State, provided it is a final,
    appealable order and is timely appealed.
    (ii) Timely Appeal of Final,
    Appealable Order
    As we have already said, for an appellate court to acquire
    jurisdiction of an appeal, there must be a final order or final
    judgment entered by the court from which the appeal is taken.
    State v. Paulsen, 
    304 Neb. 21
    , 
    932 N.W.2d 849
    (2019). We
    conclude that like the new trial order, the order granting dis-
    charge is a type of final order: an order affecting a substantial
    right made during a special proceeding. See § 25-1902.
    The district court purported to grant discharge in what was,
    in reality, still a postconviction proceeding. And we have long
    held that postconviction proceedings are special proceedings.
    See, State v. Thieszen, supra; State v. Silvers, 
    255 Neb. 702
    ,
    
    587 N.W.2d 325
    (1998).
    Furthermore, we conclude that an order granting discharge
    on speedy trial grounds affects a substantial right of the State.
    When the State has invested the time and resources to charge
    an individual with a crime, it has an interest in the accused’s
    proceeding to trial and not being discharged improperly. See
    State v. Sumstine, 
    239 Neb. 707
    , 
    478 N.W.2d 240
    (1991)
    (recognizing public interest in obtaining convictions of per-
    sons who have committed criminal offenses against State).
    Absent an appeal from the order granting discharge, this right
    of the State could not otherwise be vindicated, see State v.
    Fredrickson, 
    305 Neb. 165
    , 
    939 N.W.2d 385
    (2020), because
    the State cannot bring the same charges again. See Neb. Rev.
    Stat. § 29-1208 (Reissue 2016) (providing for “absolute dis-
    charge from the offense charged”). Accordingly, the order
    granting discharge was a final order under § 25-1902 because it
    was made during a special proceeding and affected a substan-
    tial right of the State.
    We further determine that the State timely appealed the dis-
    charge order. The discharge order was entered on February 4,
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    2019. The State filed its notice of appeal on February 8, well
    within the 30-day period prescribed by § 25-1912(1), and as
    we have already noted, the required docket fee was timely
    deposited. Thus, as to the discharge order, the State timely per-
    fected its direct appeal.
    We note that we are not persuaded by Harris’ argument that
    the discharge order is not final based on the order that granted
    the State’s request for a stay. He asserts that “to the extent
    that the February 4, 2019[,] order has stayed the implementa-
    tion of Harris’ discharge past the date of filing the appeal or is
    conditioned upon the filing of an appeal, the February 4th order
    remains stayed and is not a final, appealable order.” Brief for
    appellee at 6. However, when the district court purported to
    discharge Harris, no further action was required to completely
    dispose of the cause; the order was final. Compare State v.
    Warner, 
    290 Neb. 954
    , 
    863 N.W.2d 196
    (2015) (order sus-
    taining defendant’s motion to quash gave State 7 days to file
    amended information; State appealed, and we determined that
    order was not final because order did not discharge defendant).
    This argument lacks merit.
    (iii) Disposition of Discharge Order
    Having determined that we have jurisdiction to review the
    discharge order, we now consider it. Generally, a trial court’s
    determination as to whether charges should be dismissed on
    speedy trial grounds is a factual question which will be affirmed
    on appeal unless clearly erroneous. State v. Lovvorn, 
    303 Neb. 844
    , 
    932 N.W.2d 64
    (2019). But in this case, as we will explain,
    there is a legal issue we must address first.
    When the order granting Harris’ absolute discharge is con-
    sidered in light of everything we have already said, it quickly
    becomes clear that we must vacate it. Under § 29-1207, a
    defendant may be discharged if he or she is not brought to trial
    for a charged offense within a certain time period following,
    among other things, an order for a new trial. Here, however,
    we have already concluded that the order granting the new
    trial was void. Harris cannot claim a right to discharge for not
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    being speedily tried when the order that purported to grant him
    a new trial was a nullity.
    If that were not enough, the order of discharge itself
    was also outside the scope of our mandate in Harris V. As
    explained above, after receiving a mandate, a trial court is
    without power to affect rights and duties outside the scope of
    the remand from an appellate court. TransCanada Keystone
    Pipeline v. Tanderup, 
    305 Neb. 493
    , 
    941 N.W.2d 145
    (2020).
    Even when Harris moved for absolute discharge, the district
    court was still subject to the strictures of our mandate in
    Harris V. It clearly acted outside of that mandate when, rather
    than following our instructions regarding Harris’ claims for
    postconviction relief, it purported to grant absolute discharge
    based on a new trial order that was issued outside the scope
    of our mandate. So, like the bulk of the new trial order, the
    discharge order was void. See TransCanada Keystone Pipeline
    v. 
    Tanderup, supra
    .
    The foregoing illustrates the error made by the district
    court when it concluded the State’s challenge to the order
    granting Harris a new trial was moot in light of its ruling on
    Harris’ motion for absolute discharge. Harris’ right to discharge
    depended on the validity of the order granting him a new
    trial. At the time of Harris’ motion for discharge, the issue of
    whether the new trial order was valid continued to exist and
    required resolution. See State v. Dunster, 
    278 Neb. 268
    , 
    769 N.W.2d 401
    (2009) (case becomes moot when issues initially
    presented cease to exist or when litigants seek to determine
    question which does not rest upon existing facts or rights).
    For these reasons, we vacate the order that granted Harris
    absolute discharge and remand the cause with instructions to
    reinstate his convictions and sentences.
    2. Case No. S-19-130:
    Exception Proceedings
    Having resolved all the relevant issues presented by the par-
    ties in the appeal docketed as case No. S-19-133, we dismiss
    case No. S-19-130 as moot. See State v. Dunster, supra.
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    V. CONCLUSION
    Litigation regarding Harris’ convictions and sentences has
    lasted many years. And, for a number of reasons, it has
    become complex. Under these circumstances, one might won-
    der whether our decision today—which vacates multiple orders
    entered over the course of several years and largely returns this
    case to where it stood when we remanded it to the district court
    in 2017—contributes to advancing the matter to a resolution
    of some kind. While perhaps an understandable question, it is
    not a legally relevant one. As we have explained, the district
    court entered void orders under our law and we are obligated
    to vacate them. See DeLima v. Tsevi, 
    301 Neb. 933
    , 946, 
    921 N.W.2d 89
    , 98 (2018) (“[s]o while it is certainly regrettable
    that the significant time and energy devoted to litigating [an
    issue] was all for naught, upon its correct determination that it
    never had subject matter jurisdiction, the district court had no
    choice but to vacate its prior custody orders”).
    Accordingly, in case No. S-19-133, we vacate the district
    court’s order granting Harris a new trial and remand the
    cause for further proceedings in compliance with this deci-
    sion and our mandate in Harris V. We also vacate the order
    granting absolute discharge and remand the cause with direc-
    tions to reinstate Harris’ convictions and sentences. In case
    No. S-19-130, we dismiss the State’s exception proceedings as
    moot. In light of these dispositions, we need not address the
    parties’ remaining arguments.
    Appeal in No. S-19-130 dismissed.
    Judgment in No. S-19-133 vacated, and
    cause remanded with directions.
    Heavican, C.J., and Freudenberg, J., not participating.