2006 Nebraska Revised Statutes - § 29-824 — Motion to suppress; appeal; review; appeal after conviction.

Section 29-824
Motion to suppress; appeal; review; appeal after conviction.

(1) In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion for the return of seized property and to suppress evidence in the manner provided in sections 29-824 to 29-826.

(2) If such motion has been granted in district court, the Attorney General or the county attorney or prosecuting attorney with the consent of the Attorney General may file his or her application with the Clerk of the Supreme Court asking for a summary review of the order granting the motion. The review shall be made by a judge of the Court of Appeals at chambers upon such notice, briefs, and argument as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.

(3) If such motion has been granted in the county court, the Attorney General or the county attorney or prosecuting attorney may file his or her application with the clerk of the district court in the district in which the motion has been granted asking for a summary review of the order granting the motion. The review shall be made by a judge of the district court upon such notice, briefs, and arguments as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.

Source:

Laws 1963, c. 155, § 3, p. 554

Laws 1981, LB 411, § 6

Laws 1991, LB 732, § 73

Laws 1998, LB 218, § 13

Annotations:

This section authorizes an interlocutory appeal by the State from the sustaining of a motion to suppress only when the motion is sustained in district court. The State must look to section 29-827 in regard to review of the sustaining of a motion to suppress in county court. State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988).

An application for review, as provided in section 29-824 et seq., must be filed within the time set in the trial court's order setting the time within which the application must be filed, and the time set in that order may not exceed thirty days. State v. Goreham, 227 Neb. 460, 418 N.W.2d 234 (1988).

A ruling in a pretrial hearing that a defendant's statement is admissible is not a final order that may be appealed from by a defendant. State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987).

Prosecuting attorney means any county attorney and also any city attorney or assistant city attorney in a city of the metropolitan class when such attorney is prosecuting any violation designated as a misdemeanor or traffic infraction. Deputy city attorney for city of any other class may not properly prosecute an appeal under this statute. State v. Peterson, 219 Neb. 866, 366 N.W.2d 780 (1985).

Appeals by the state from an order suppressing evidence under section 84-705(12), R.R.S.1943, shall be made pursuant to section 29-824, R.R.S.1943. State v. Hinchion, DiBiase, Olsen, and Cullen, 207 Neb. 478, 299 N.W.2d 748 (1980).

On appeal to a single judge, under this section, the trial court's order suppressing evidence as involuntarily given, is affirmed. State v. McNitt, 207 Neb. 296, 298 N.W.2d 465 (1980).

If the state, after prevailing on motion to suppress, was again required to prove legality of search at trial, the state's right to appeal hereunder would be defeated in many cases. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).

Motion to suppress evidence was improperly sustained. State v. Forney, 181 Neb. 757, 150 N.W.2d 915 (1967).

Order suppressing evidence may be reviewed by single Judge of Supreme Court. State v. Hagen, 180 Neb. 564, 143 N.W.2d 904 (1966).

~Revised Statutes Cumulative Supplement, 2006