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State v. Washington

Supreme Court of Nebraska

October 26, 2018

State of Nebraska, appellee,
v.
Rashad Washington, appellant.

         1. 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.

         2. Courts: Appeal and Error. The order of an appellate court is conclusive on the parties, and no judgment or order different from, or in addition to, that directed by the appellate court can be entered by the trial court.

          Appeals from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Brian S. Munnelly for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

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

          Heavican, C.J.

         INTRODUCTION

         Rashad Washington appeals from the district court's denial of his motion to vacate and the subsequent reinstatement of sentences originally ordered on April 18, 2011. Washington appeals. We affirm.

          [301 Neb. 421] BACKGROUND

         This case is procedurally complex. Following a jury trial. Washington was convicted of nine counts for first degree assault; second degree assault; possession of a firearm by a prohibited person; discharging a firearm in certain cities, villages, and counties; three counts of use of a weapon to commit a felony; possession of a firearm by a prohibited person; and possession of a stolen firearm. These charges result from separate incidents occurring on March 17 and 27, 2010.

         On April 18, 2011, the district court sentenced Washington to a combined total of 70 to 110 years' imprisonment. The district court then informed Washington, incorrectly, that he would be eligible for parole in 35 years, less the 387 days already served, and released in 55 years, less the 387 days already served. Two days later, on April 20, the district court attempted to resentence Washington to reflect the court's intent that Washington would be eligible for parole in a certain number of years or be released in a certain number of years.

         Washington appealed, but on June 19, 2011, in case No. A-l 1-402, his appeal was dismissed by the Nebraska Court of Appeals for lack of jurisdiction, because a poverty affidavit had not been filed.

         The State filed a petition to docket error proceedings, which was granted. In its petition, the State argued that the April 20, 2011, attempt to resentence Washington was of no effect. The Court of Appeals agreed and on February 27, 2012, in case No. A-11-416, held that the April 18 sentence remained in effect, but the court remanded the matter for a new advisement on good time ...


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