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State v. Thalmann

Supreme Court of Nebraska

January 25, 2019

State of Nebraska, Appellee,
v.
Donald R. Thalmann, Appellant.

         1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court's decision.

         2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the 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.

         3. Final Orders: Appeal and Error. Numerous factors have been set forth defining when an order affects a substantial right. Broadly, these factors relate to the importance of the right and the importance of the effect on the right by the order at issue. It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial.

         4. Words and Phrases. A substantial right is an essential legal right, not merely a technical right.

         5. Final Orders: Appeal and Error. An order affects a substantial right if it affects the subject matter of the litigation, such as diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing.

          Appeal from the District Court for Lancaster County: Jodi L. Nelson, Judge. Appeal dismissed.

          Joseph D. Nigro, Lancaster County Public Defender, and Matthew F. Meyerle for appellant.

          [302 Neb. 111] Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

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

          HEAVICAN, C.J.

         INTRODUCTION

         Donald R. Thalmann was serving a sentence of probation following a conviction for possession of a controlled substance. After several positive drug and alcohol screens, his probation officer sought the imposition of a custodial sanction. The district court imposed a 15-day custodial sanction. Thalmann appeals. We dismiss Thalmann's appeal.

         BACKGROUND

         Thalmann was convicted of possession of a controlled substance, a Class IV felony, and sentenced to a term of 3 years' probation. Just 2 months into that term of probation, Thalmann's probation officer sought the imposition of a custodial sanction. A hearing was held on the motion for a custodial sanction.

         At that hearing, the State offered the testimony of Thalmann's probation officer and various exhibits in support of the request for a custodial sanction. The district court granted the motion ...


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