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State v. Lavalleur

Supreme Court of Nebraska

November 17, 2017

State of Nebraska, appellee,
v.
Curtis H. Lavalleur, appellant.

         1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law.

         2. Judgments: Appeal and Error. On a question of law, an appellate court reaches a conclusion independent of the court below.

         3. Evidence: Appeal and Error. The overruling of a motion in limine is not a final ruling on the admissibility of evidence and does not present a question for appellate review.

         4. Double Jeopardy. The Double Jeopardy Clauses of both the federal and Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

         5. Appeal and Error. Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it in reviewing proceedings of the trial court become the law of the case; those holdings conclusively settle, for purposes of that litigation, all matters ruled upon, either expressly or by necessary implication.

         6. Actions: Appeal and Error. The law-of-the-case doctrine operates to preclude a reconsideration of substantially similar, if not identical, issues at successive stages of the same suit or prosecution. Matters previously addressed in an appellate court are not reconsidered unless the petitioner presents materially and substantially different facts.

         Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed and remanded for further proceedings.

         [298 Neb. 238] Joseph D. Nigro, Lancaster County Public Defender, Webb E. Bancroft, John C. Jorgensen, and Katherine Lesiak, Senior Certified Law Student, for appellant.

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

          Heavican, C.J., Miller-Lerman, Cassel, Kelch, and FUNKE, JJ. Cassel, J.

         INTRODUCTION

         Curtis H. Lavalleur appeals from an order denying his second plea in bar, asserting a double jeopardy violation. But Lavalleur does not challenge the operative information; rather, he seeks advance review of evidence that may be offered upon retrial. Because there have been no final evidentiary rulings, this issue lies outside of the scope of our jurisdiction over this appeal. We affirm the district court's denial of Lavalleur's plea in bar.

         BACKGROUND

         This is the third time this case has been before this court on appeal and the second time Lavalleur has entered a plea in bar on double jeopardy grounds. Because a thorough factual background is already chronicled in our 2014[1] and 2016[2] opinions in this case, only those facts relevant to this appeal will be repeated.

         The State originally charged Lavalleur with first degree sexual assault (digital penetration) and attempted first degree sexual assault (penile penetration). The attempted first degree sexual assault charge alleged that Lavalleur "did attempt to subject [the victim] to sexual penetration without her consent.''

         [298 Neb. 239] After a jury trial, Lavalleur was acquitted of first degree sexual assault and convicted of attempted first degree sexual assault. Lavalleur appealed this conviction, and we reversed the judgment and remanded the cause for a new trial after finding ...


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