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State v. Johnson

Supreme Court of Nebraska

January 17, 2014

State of Nebraska, appellee,
v.
Scott D. Johnson, appellant.

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[Copyrighted Material Omitted]

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Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.

Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Miller-Lerman, JJ.

Syllabus

1. Probation and Parole. The revocation of probation is a matter entrusted to the discretion of a trial court.

2. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.

3. Constitutional Law: Due Process. The determination of whether the procedures afforded an individual comport with the constitutional requirements for procedural due process presents a question of law.

4. Appeal and Error. An appellate court resolves questions of law independently of the lower court's conclusion.

5. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the litigation's outcome.

6. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.

7. Moot Question: Appeal and Error. Under the public interest exception to the mootness doctrine, an appellate court may review an otherwise moot case if it involves a matter affecting the public

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interest or when other rights or liabilities may be affected by its determination.

[287 Neb. 191] 8. Moot Question: Appeal and Error. When determining whether a case involves a matter of public interest, an appellate court considers (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for future guidance of public officials, and (3) the likelihood of future recurrence of the same or a similar problem.

9. Probation and Parole: Due Process. The minimum due process protections required at a probation revocation hearing are as follows: (1) written notice of the time and place of the hearing; (2) disclosure of evidence; (3) a neutral factfinding body or person, who should not be the officer directly involved in making recommendations; (4) opportunity to be heard in person and to present witnesses and documentary evidence; (5) the right to cross-examine adverse witnesses, unless the hearing officer determines that an informant would be subjected to risk of harm if his or her identity were disclosed or unless the officer otherwise specifically finds good cause for not allowing confrontation; and (6) a written statement by the fact finder as to the evidence relied on and the reasons for revoking the conditional liberty. In addition, the parolee or probationer has a right to the assistance of counsel in some circumstances where the parolee's or probationer's version of a disputed issue can fairly be represented only by a trained advocate.

10. Probation and Parole: Proof. While the revocation of probation is a matter entrusted to the discretion of a trial court, unless the probationer admits to a violation of a condition of probation, the State must prove the violation by clear and convincing evidence.

11. Evidence: Words and Phrases. Clear and convincing evidence means that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.

Miller-Lerman, J.

NATURE OF CASE

In November 2007, Scott D. Johnson was convicted in the district court for Lancaster County of abuse of a vulnerable adult based on the financial exploitation of a relative. On [287 Neb. 192] February 1, 2008, he was sentenced to 3 years' probation. On April 13, 2010, the State filed a motion to revoke Johnson's probation on the basis that Johnson had allegedly assaulted another individual, Martha Majocha. After a hearing, the district court found that the State had proved by clear and convincing evidence that Johnson had violated the terms and conditions of his probation by assaulting Majocha, and therefore, the district court revoked Johnson's probation and sentenced him to 1 to 2 years' imprisonment with 26 days' credit for time served. Johnson appeals the order revoking his probation. We affirm.

STATEMENT OF FACTS

In November 2007, Johnson was convicted of abuse of a vulnerable adult, a Class IIIA felony, and the district court sentenced

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Johnson to 3 years' probation on February 1, 2008. The conviction of abuse of a vulnerable adult was based on the financial exploitation of Johnson's step-great-grandmother. Johnson appealed the conviction and sentence, and the district court stayed the order of probation during the pendency of the appeal. The Nebraska Court of Appeals affirmed the conviction and sentence in a memorandum opinion filed on February 3, 2009, in case No. A-08-202. We denied Johnson's petition for further ...


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