Pleadings. Issues regarding the grant or
denial of a plea in bar are questions of law.
Judgments: Appeal and Error. On a question
of law, an appellate court reaches a conclusion independent
of the court below.
Jurisdiction: Final Orders: Appeal and
Error. For an appellate court to acquire
jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
Criminal Law: Final Orders: Sentences. In a
criminal case, the final judgment is the sentence.
Final Orders. The three categories of final
orders in Neb. Rev. Stat. § 25-1902 (Reissue 2016) are
Criminal Law: Pleadings: Directed Verdict. A
motion for judgment of acquittal is a criminal
defendant's request, at the close of the government's
case or the close of all evidence, to be acquitted because
there is no legally sufficient evidentiary basis on which a
reasonable jury could return a guilty verdict.
Pleadings: Directed Verdict. A motion for
judgment of acquittal is simply another name for a motion for
directed verdict of acquittal.
Motions to Dismiss: Directed Verdict. A
motion to dismiss at the close of all the evidence has the
same legal effect as a motion for directed verdict.
Directed Verdict: Motions for Mistrial:
Time. A motion for judgment of acquittal or motion
for directed verdict is untimely if made after a mistrial has
Motions to Dismiss: Directed Verdict: Waiver: Appeal
and Error. A defendant who moves for dismissal or a
directed verdict at the close of the evidence in the
State's case in chief in a criminal prosecution and who,
when the court overrules the dismissal or directed verdict
motion, [297 Neb. 423] proceeds with trial and introduces
evidence, waives the appellate right to challenge correctness
in the trial court's overruling the motion for dismissal
or a directed verdict but may still challenge the sufficiency
of the evidence.
Criminal Law: Final Orders. A judgment
entered during the pendency of a criminal cause is final when
no further action is required to completely dispose of the
Double Jeopardy: Pleadings. A plea in bar
may be filed to assert any nonfrivolous double jeopardy claim
arising from a prior prosecution.
Pleadings: Final Orders: Appeal and Error.
An order overruling a plea in bar is a final, appealable
Double Jeopardy: Pleadings. A plea in bar
may be used to raise a double jeopardy challenge to the
State's right to retry a defendant following a mistrial.
Constitutional Law: Double Jeopardy. The 5th
Amendment's protection against double jeopardy applies to
states through the 14th Amendment to the U.S. Constitution.
Constitutional Law: Criminal Law: Double
Jeopardy. The Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution prohibits a criminal
defendant from being put in jeopardy twice for the same
offense and unequivocally prohibits a second trial following
Double Jeopardy. The Double Jeopardy
Clause's prohibition on retrial is not unequivocal when
the first trial ends in a mistrial.
Motions for Mistrial. Where a mistrial is
declared over a defendant's objection, he or she may only
be retried if the prosecution can demonstrate a
"manifest necessity" for the mistrial.
Double Jeopardy: Motions for Mistrial. Where
a mistrial is declared at the behest of the defendant, the
"manifest necessity" standard has no place in the
application of the Double Jeopardy Clause.
Double Jeopardy: Motions for Mistrial: Prosecuting
Attorneys. The narrow exception to the rule that
where a defendant asks the court to declare a mistrial, the
Double Jeopardy Clause does not bar retrial, is limited to
those cases in which the prosecution's conduct giving
rise to the successful motion for a mistrial was intended to
provoke the defendant into moving for a mistrial.
Trial: Juries: Verdicts. A jury's action
cannot become a verdict until it is finally rendered in open
court and received and accepted by the trial judge.
Trial: Verdicts. A verdict, to be of any
validity, must be delivered in open court.
Juries: Verdicts. A vote taken in the
privacy of jury deliberations is not a verdict.
Neb. 424] Appeal from the District Court for Lancaster
County: Robert R. Otte, Judge. Affirmed.
B. Creager, of Anderson, Creager & Wittstruck, PC, for
Douglas J. Peterson, Attorney General, and Austin N. Relph
Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and
appellant, Patrick J. Combs, was charged with four crimes in
the district court for Lancaster County. His case was tried
to a jury. After deliberating for 3 days, the jury reported
that it was deadlocked. Combs moved for a mistrial, which the
district court sustained. After the mistrial, Combs
discovered that, according to the presiding juror, the jury
had voted unanimously during its deliberations to acquit him
on three of the four charges, but mistakenly thought it had
to reach a unanimous verdict on all charges. Combs moved for
a judgment of acquittal, which the district court overruled.
Combs then filed a plea in bar, which the district court
overruled. Combs appeals the overruling of his plea in bar on
the ground that retrial of the three counts on which the ...