Judgments: Jurisdiction. A jurisdictional
issue that does not involve a factual dispute presents a
question of law.
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.
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.
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.
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
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
___: ___. 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.
Judgments: Appeal and Error. No judgment or
order different from, or in addition to, the appellate
mandate can have any effect.
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.
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
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
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.On remand, the district court interpreted
our opinion to require an evidentiary hearing on a different
issue, and Payne timely appeals from that order.
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
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
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.
district court denied Payne's postconviction motion
without conducting an evidentiary hearing, finding his
allegations of ineffective assistance of trial counsel were
procedurally barred ...