Pleadings. Issues regarding the grant or
denial of a plea in bar are questions of law.
Evidence: Appeal and Error. On a question of
law, an appellate court reaches a conclusion independent of
the court below.
Motions for Mistrial: Pleadings: Prosecuting
Attorneys: Intent: Appeal and Error. While the
denial of a plea in bar generally involves a question of law,
an appellate court reviews under a clearly erroneous standard
a finding concerning the presence or absence of prosecutorial
intent to provoke the defendant into moving for a mistrial.
Pleadings: Final Orders: Double Jeopardy:
Jurisdiction: Appeal and Error. An order overruling
a plea in bar is a final, appealable order that an appellate
court has jurisdiction to review. Such appellate jurisdiction
is based on the reasoning that under Neb. Rev. Stat. §
25-1902 (Reissue 2016), a plea in bar is a "special
proceeding, " and an order overruling a nonfrivolous
double jeopardy claim affects a substantial right.
Double Jeopardy: Pleadings. A plea in bar
may be used to raise a double jeopardy challenge to the
State's right to retry a defendant following a mistrial.
Motions for Mistrial: Double Jeopardy. When
a mistrial has been declared upon the defendant's motion,
the Double Jeopardy Clause generally does not bar retrial
except when the conduct giving rise to the successful motion
for a mistrial was intended to provoke the defendant into
moving for a mistrial.
Constitutional Law: Double Jeopardy. The
Double Jeopardy Clause of the Nebraska Constitution provides
no greater protection than that of the U.S. Constitution.
from the District Court for Hall County: Teresa K. Luther,
Neb. 737] Jim K. McGough, of McGough Law, PC, L.L.O., for
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Bedolla appeals the order of the district court for Hall
County which denied his plea in bar to charges of sexual
assault of a child. Although Bedolla had moved for a mistrial
in the first trial, he contends that a new trial would
subject him to double jeopardy because the State had created
the need for a mistrial when it moved to amend the
information and a jury instruction after the jury had ...