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State v. Payne

Supreme Court of Nebraska

December 8, 2017

State of Nebraska, appellee,
Christopher M. Payne, appellant.

         1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.

         2. Judgments: Appeal and Error. The construction of a mandate issued by an appellate court presents a question of law on which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

         3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.

         4. Postconviction: Final Orders. In a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a hearing on others is a final order as to the claims denied without a hearing.

         5. Judgments: Appeal and Error. Where the mandate makes the opinion of an appellate court a part thereof by reference, the opinion should be examined in conjunction with the mandate to determine the nature and terms of the judgment to be entered or the action to be taken thereon.

         6. Courts: Judgments: Appeal and Error. A district court has an unqualified duty to follow the mandate issued by an appellate court and must enter judgment in conformity with the opinion and judgment of the appellate court.

         7. ___: ___: ___. A lower court may not modify a judgment directed by an appellate court; nor may it engraft any provision on it or take any provision from it.

         8. Judgments: Appeal and Error. No judgment or order different from, or in addition to, the appellate mandate can have any effect.

         9. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial court is without power to affect rights and duties outside the scope of [298 Neb. 374] the remand from an appellate court, any order attempting to do so is entered without jurisdiction and is void.

         Appeal from the District Court for Sarpy County: William B. Z aster a, Judge. Order vacated, and cause remanded with directions.

          Gregory A. Pivovar for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

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

          STACY, J.

         This is Christopher M. Payne's second appeal from post-conviction proceedings before the district court for Sarpy County. In his first appeal, we reversed the district court's order denying postconviction relief and remanded the cause for an evidentiary hearing on Payne's claim that his no contest plea was the result of his trial counsels' ineffective assistance.[1]On remand, the district court interpreted our opinion to require an evidentiary hearing on a different issue, and Payne timely appeals from that order.

         We conclude the district court misinterpreted the directions on remand and consequently entered an order that exceeded the scope of our mandate and was therefore void. We vacate the district court's order and remand the cause with directions.


         In 2005, Payne was charged with first degree sexual assault of a child, incest, and sexual assault of a child. Pursuant to a plea agreement, he pled no contest to first degree sexual assault of a child and was sentenced to imprisonment for a term of 40 to 50 years. Payne did not file a direct appeal. His [298 Neb. 375] trial counsel had not withdrawn and was still engaged as counsel during the time an appeal could have been filed.


         On August 24, 2012, Payne filed a verified motion for post-conviction relief, and he thereafter filed amended and second amended motions. In his operative motion, Payne alleged his trial attorneys were ineffective in (1) failing to preserve his speedy trial rights by filing a motion to discharge; (2) failing to move for discharge following a preindictment delay; (3) failing to adequately investigate possible defenses, specifically, not hiring an expert witness; (4) failing to file a plea in abatement or motion to quash to challenge the State's failure to provide sufficient evidence as to venue and corpus delecti; and (5) advising him to plead guilty or no contest despite the fact that a law enforcement witness testified falsely. Read as a whole, Payne's postconviction motion asserted that if his trial counsel had not been ineffective in one or more of the five asserted ways, he would have insisted on going to trial and would not have entered his no contest plea.

         The district court denied Payne's postconviction motion without conducting an evidentiary hearing, finding his allegations of ineffective assistance of trial counsel were procedurally barred ...

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