Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dugan v. State

Supreme Court of Nebraska

August 11, 2017

Michael Marvin Dugan, appellant,
v.
State of Nebraska et al., appellees.

          1. Actions: Habeas Corpus: Collateral Attack: Appeal and Error. As only a void judgment is subject to attack in a habeas corpus action, an appellate court is limited in such a case to reviewing a question of law, namely, Is the judgment in question void?

         2. Judgments: Appeal and Error. To the extent questions of law are involved, an appellate court is obligated to reach conclusions independent of the decisions reached by the court below.

         3. Habeas Corpus: Judgments: Convictions: Collateral Attack. Habeas corpus is a proper means of collaterally attacking the validity of an allegedly void judgment of conviction.

         4. Judgments: Jurisdiction: Final Orders: Appeal and Error. An appeal is not perfected and an appellate court acquires no jurisdiction unless the appellant has satisfied the statutory requirements for appellate jurisdiction by appealing from a final order or a judgment.

         5. Final Orders: Appeal and Error. An order is final for purposes of appeal under Neb. Rev. Stat. § 25-1902 (Reissue 2016) if it affects a substantial right and (1) determines the action and prevents a judgment, (2) is made during a special proceeding, or (3) is made on summary application in an action after judgment is rendered.

         6. Criminal Law: Pretrial Procedure: Appeal and Error. Generally, for a pretrial order in criminal cases to be immediately appealable, it must involve a right not to be tried as opposed to a right not to be convicted.

         7. Final Orders: Pleadings. How a motion should be regarded for purposes of determining whether its denial is a final order depends upon the substance of the motion and not its title.

         8. Arrests: Extradition and Detainer: Trial. The unlawfulness of the means of arrest or extradition from another state does not impair the power of a court to try an accused.

         [297 Neb. 445] Appeal from the District Court for Lancaster County: Steven D. Burns, Judge. Affirmed.

          Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellees.

          Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and Funke, JJ.

          Wright, J.

         NATURE OF CASE

         Trial proceeded while the defendant's appeal from the denial of his motion for absolute discharge was pending with the Nebraska Court of Appeals. The motion was based on the allegations that the defendant's arrest warrant was defective and that his extradition was procedurally improper. After the defendant was convicted and sentenced, the appeal from the denial of the motion for absolute discharge was voluntarily dismissed. The conviction and sentence were affirmed on direct appeal. In his action for habeas corpus relief, the defendant now claims that the trial court lacked jurisdiction to continue with his trial while his appeal from the denial of the motion for absolute discharge was pending. He therefore asserts that his conviction and sentence are void.

         BACKGROUND

         Underlying Charges

         Michael Marvin Dugan was arrested in Wyoming under what the sheriff's department believed to be a valid Nebraska warrant, but the warrant was not issued until after Dugan was taken into custody. Dugan waived extradition and was returned to Nebraska. In July 2006, Dugan was charged in the district court for Cheyenne County (the trial court) with one count of theft by unlawful taking.

          [297 Neb. 446] Excessive Bail Appeal

         Dugan moved to reduce his bail pending trial, alleging it was excessive. The motion was overruled. On May 25, 2007, Dugan appealed the denial of his motion to reduce his bail to the Court of Appeals.

         On June 21, 2007, the Court of Appeals dismissed the appeal for lack of jurisdiction, explaining that under State v. Kula, [1] the order appealed from was not final. The mandate of dismissal issued on July 27 and was filed with the trial court on August 2.[2]

         Federal Habeas Action

         On June 26, 2007, Dugan filed an application for a writ of habeas corpus in the U.S. District Court for the District of Nebraska. The application alleged that his arrest warrant was defective and that he was extradited without proper procedure. Dugan further alleged that his bail was excessive and that the trial court had erred in refusing to stay the criminal proceedings pending his appeal of the allegedly excessive bail. Dugan asked the federal district court to stay his trial and determine the legality of his restraint, as well as to fix a reasonable bail.

         Absolute Discharge Motion and Appeal

          While the federal habeas action was still pending, Dugan filed with the trial court a motion for absolute discharge for violation of his constitutional rights. Dugan alleged that his arrest warrant was defective and that his extradition was procedurally improper. The trial court denied the motion, and on October 3, 2007, Dugan appealed to the Court of Appeals.

         [297 Neb. 447] Trial Verdict

         Trial proceeded while Dugan's federal habeas action and his appeal to the Court of Appeals from the denial of his motion for absolute discharge were pending. Dugan was found guilty on October 5, 2007, and was sentenced as a habitual criminal on December ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.