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State v. Bedolla

Supreme Court of Nebraska

January 19, 2018

State of Nebraska, appellee,
v.
Luis Bedolla, appellant.

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

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

         3. 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.

         4. 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.

         5. 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.

         6. 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.

         7. Constitutional Law: Double Jeopardy. The Double Jeopardy Clause of the Nebraska Constitution provides no greater protection than that of the U.S. Constitution.

         Appeal from the District Court for Hall County: Teresa K. Luther, Judge. Affirmed.

          [298 Neb. 737] Jim K. McGough, of McGough Law, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

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

          MILLER-LERMAN, J.

         NATURE OF CASE

         Luis 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 ...


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