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?
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
Habeas Corpus: Judgments: Convictions: Collateral
Attack. Habeas corpus is a proper means of
collaterally attacking the validity of an allegedly void
judgment of conviction.
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.
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.
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.
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.
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
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
Douglas J. Peterson, Attorney General, and Kimberly A. Klein
Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and
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
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.
Neb. 446] Excessive Bail Appeal
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.
21, 2007, the Court of Appeals dismissed the appeal for lack
of jurisdiction, explaining that under State v.
Kula,  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.
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.
Discharge Motion and Appeal
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.
Neb. 447] Trial Verdict
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 ...