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State v. Parnell

Supreme Court of Nebraska

November 30, 2018

State of Nebraska, appellee,
v.
Tracy N. Parnell, appellant.

         1. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.

         2. Negligence: Public Officers and Employees: Pleadings: Appeal and Error. The appropriate filing procedure when an appeal is lost due to official negligence is for the party seeking relief to file a motion in the lower court, seeking the ability to establish the basis for obtaining relief.

         3. Presumptions. A letter properly addressed, stamped, and mailed raises a presumption that the letter reached the addressee in the usual course of the mails.

         4. Public Officers and Employees: Presumptions. In the absence of evidence to the contrary, it may be presumed that public officers faithfully performed their official duties, and absent evidence showing misconduct or disregard of the law, the regularity of official acts is presumed.

          Appeal from the District Court for Douglas County: Gary B. Randall, Judge. Reversed and remanded.

          Tracy N. Parnell, pro se.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

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

         [301 Neb. 775] Heavican, C.J.

         INTRODUCTION

         Tracy N. Pamell filed a pro se motion for postconviction relief on July 12, 2017. The district court denied the motion without a hearing. Parnell then filed a motion to vacate or modify the judgment, contending that he was not informed of the denial and was thus unable to file a timely appeal. Parnell sought a hearing at which he could prove that he was not served with the district court's order denying his motion. The district court denied the motion without a hearing. Parnell appeals. We reverse.

         BACKGROUND

         Parnell was convicted of first degree murder, attempted first degree murder, two counts of use of a deadly weapon to commit a felony, and possession of a weapon by a prohibited person. This court affirmed Parnell's convictions and sentences on direct appeal.[1]

         On July 12, 2017, Parnell filed a motion seeking postconviction relief. The district court dismissed the motion without an evidentiary hearing on August 17. The clerk of the court certified that a ...


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