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State v. Warner

Supreme Court of Nebraska

May 22, 2015

STATE OF NEBRASKA, APPELLANT,
v.
RENAE K. WARNER, APPELLEE

Page 197

Appeal fro the District Court for Lancaster County: JODI NELSON, Judge.

Joe Kelly, Lancaster County Attorney, Ryan Mick and Richard Grabow, and Meridith Wailes, Senior Certified Law Student, for appellant.

Dennis R. Keefe, Lancaster County Public Defender, and John C. Jorgensen for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 198

[290 Neb. 955] Miller-Lerman, J.

NATURE OF CASE

The State filed this appeal as an error proceeding pursuant to Neb. Rev. Stat. § 29-2315.01 (Reissue 2008). In this criminal case, Renae K. Warner was charged with two felony counts of theft by deception, Neb. Rev. Stat. § 28-512 (Reissue 2008). The information alleged that Warner had written 55 bad checks on an account at one bank, constituting one felony count, and 23 bad checks on an account at a second bank, constituting the second felony count. Based on its reading of § 28-512, the district court for Lancaster County reasoned that the State should have aggregated all of [290 Neb. 956] the alleged incidents into a single count of theft by deception rather than charging two separate counts and, therefore, sustained Warner's motion to quash the information. Although it sustained the motion to quash, the court gave the State 7 days to file an amended information. Instead of filing an amended information within that time, the State filed an application to docket error proceedings.

A threshold issue in this appeal is whether, under § 29-2315.01, the State may appeal an order which sustained a motion to quash but allowed the State time to file an amended information. We conclude that because there was no final order, the State may not take an appeal under § 29-2315.01 and we lack jurisdiction to consider this error proceeding. We therefore dismiss this appeal.

Page 199

STATEMENT OF FACTS

The State filed an information against Warner in which it alleged that she had committed theft by deception in violation of § 28-512 when she wrote numerous bad checks drawn on accounts at two different banks. The State charged Warner with two counts of theft by deception--one count related to checks drawn on the first bank and a second count related to checks drawn on the second bank. The State alleged that each count involved over $1,500 and was therefore a separate Class III felony under Neb. Rev. Stat. § 28-518(1) (Cum. Supp. 2014).

Warner filed a motion to quash and asserted that the State had inappropriately charged the incidents as two counts. She argued that pursuant to ยง 28-518(7), the allegations should have been charged as one offense. Section 28-518(7) provides: " Amounts taken pursuant to one scheme or course of conduct from one or more persons may be aggregated in the indictment or information in determining the ...


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