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State v. McBride

Court of Appeals of Nebraska

May 7, 2019

State of Nebraska, appellee,
v.
Heather M. McBride, appellant.

         1. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed by an appellate court only if the sentence complained of was an abuse of judicial discretion.

         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.

         3. Courts: Final Orders: Appeal and Error. When a district court, sitting as an intermediate appellate court, enters an order that affects a substantial right, that order is final for purposes of appeal if its judgment can be executed without any further action by the district court.

         4. Courts: Final Orders: Jurisdiction: Appeal and Error. A district court order affirming, reversing, or remanding an order or judgment of the county court is itself a final order that an appellate court has jurisdiction to review.

         5. Pleas: Sentences: Restitution. The failure to inform a defendant of the possibility of restitution renders the entry of a plea of guilty involuntary and unintelligent in that regard and consequently prevents the imposition of an order of restitution.

         6. Pleas: Proof. While in order for a defendant to enter a voluntary and intelligent plea of guilty, he or she must know the penalty for the crime to which he or she is pleading, and although it is preferable that such knowledge be imparted by the judge accepting the plea, it is nonetheless possible to prove the defendant's knowledge by other means.

         7. Criminal Law: Restitution: Damages. Neb. Rev. Stat. § 29-2280 (Reissue 2016) vests trial courts with the authority to order restitution for actual damages sustained by the victim of a crime for which a defendant is convicted.

         8.___:___: ___. Pursuant to Neb. Rev. Stat. § 29-2281 (Reissue 2016), before restitution can be properly ordered, the trial court must [27 Neb.App. 220] consider: (1) whether restitution should be ordered, (2) the amount of actual damages sustained by the victim of a crime, and (3) the amount of restitution a criminal defendant is capable of paying.

         9. Sentences: Restitution. When a court orders restitution to a crime victim under Neb. Rev. Stat. § 29-2280 (Reissue 2016), restitution is a criminal penalty imposed as punishment and is part of the criminal sentence imposed by the sentencing court.

         10. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         11. Sentences: Restitution. After the sentencing court determines that a conviction warrants restitution, it then becomes the sentencing court's factfinding responsibility to determine the victim's actual damages and the defendant's ability to pay.

         12.___:___. Under Neb. Rev. Stat. § 29-2281 (Reissue 2016), the sentencing court may hold a hearing at the time of sentencing to determine the amount of restitution.

         13. Sentences: Restitution: Evidence. Under Neb. Rev. Stat. § 29-2281 (Reissue 2016), the sentencing court's determination of restitution shall be based on the actual damages sustained by the victim and shall be supported by evidence which shall become a part of the court record.

          Appeal from the District Court for Madison County, Mark A. Johnson, Judge, on appeal thereto from the County Court for Madison County, Ross A. Stoffer, Judge. Judgment of District Court affirmed.

          Ronald E. Temple, of Fitzgerald, Vetter, Temple & Bartell, for appellant.

          Douglas J. Peterson, Attorney General, and Kimberly A. ...


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