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State v. Hood

Court of Appeals of Nebraska

August 25, 2015

STATE OF NEBRASKA, APPELLANT,
v.
EDWARD E. HOOD, APPELLEE

Page 384

Appeal from the District Court for Garden County: DEREK C. WEIMER, Judge.

Greg M. Ariza, Special Deputy Garden County Attorney, for appellant.

No appearance for appellee.

INBODY, PIRTLE, and BISHOP, Judges. Inbody, Judge, dissenting.

OPINION

Page 385

Pirtle, Judge.

INTRODUCTION

The State of Nebraska brings this appeal from an order of the Garden County District Court granting Edward E. Hood's motion to suppress evidence. Because we conclude that the State failed to comply with the statutory requirements for docketing an appeal in this court, the case is dismissed for lack of jurisdiction.

BACKGROUND

The State has filed an application for review of a district court order granting Hood's motion to suppress. The suppression order was entered on February 27, 2015. The State timely filed a notice of intent to appeal on March 4, pursuant to Neb. Rev. Stat. § 29-826 (Reissue 2008). At that point, the State had 30 days, or until April 3, in which to file its application for review with the consent of the Attorney General. See Neb. Rev. Stat. § 29-825 (Reissue 2008). It did so on April 1. However, § 29-825 requires that the application be accompanied by a copy of the suppression order and " a bill of exceptions containing all of the evidence."

It also appears that while the State had filed a praecipe for a bill of exceptions and its application for review stated it was attaching the bill of exceptions, it did not file the actual bill of exceptions with the clerk of the Court of Appeals until April 7, 2015.

On May 11, 2015, a show cause order was issued giving the State 15 days to file a response, to include a supporting affidavit or affidavits, if necessary, specifically addressing why the bill of exceptions was not timely filed in this matter, or otherwise show cause why this appeal should not be dismissed for lack of jurisdiction pursuant to Neb. Ct. R. App. P. § 2-107(A)(2) (rev. 2012).

[23 Neb.App. 210] On May 18, 2015, the State filed its response to the show cause order and attached the affidavit of the court reporter, wherein she stated as follows:

On March 4, 2015, I received the State's Praecipe for Bill of Exceptions to include transcripts and exhibits for hearings held October 6, 2014 and February 17, 2015 to be filed with the Clerk of the Supreme Court of Nebraska.
. . . I filed the bill of exceptions with the Garden County District Court on April 6, 2015; and filed the bill of exceptions with the Court of ...

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