State v. Graham

1

32 Neb.App. 747

State of Nebraska, appellee, v. Ashton J. Graham, appellant.

No. A-23-001

Court of Appeals of Nebraska

April 2, 2024

1 Jurisdiction. Subject matter jurisdiction is a question of law.

2. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

3. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous.

4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.

5 Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.

6. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

7. __ __. A court action taken without subject matter jurisdiction is void.

8. Jurisdiction: Appeal and Error. An appellate court has an independent duty to decide jurisdictional issues on appeal, even if the parties have not raised the issue.

9. __ __. When a trial court lacks the power, that is, jurisdiction, to adjudicate the merits of a claim, an appellate court also lacks the power to adjudicate the merits of the claim.

10. Jurisdiction: Fees. The failure to pay the docket fee is jurisdictional.

11. Courts: Appeal and Error. In regard to a criminal case in county court, a defendant may appeal, but the State is limited to an exception proceeding.

12. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

Appeal from the District Court for Adams County, Morgan R. Farquhar, Judge, on appeal thereto from the County Court for Adams County, Michael O. Mead, Judge. Judgment of District Court reversed and vacated, and cause remanded with directions.

T. Charles James, of Langvardt, Valle &James, P.C., L.L.O., for appellant.

Michael T. Hilgers, Attorney General, and Stacy M. Foust for appellee.

Riedmann, Bishop, and Welch, Judges.

Welch Judge.

INTRODUCTION

Ashton J. Graham appeals the decision of the Adams County District Court that reversed the county court's order dismissing his criminal case based on a violation of his statutory right to a speedy trial. For the reasons stated herein, we reverse and vacate the district court's order and remand the cause to the district court with directions to remand the cause to the county court.

BACKGROUND

On December 16, 2020, the State charged Graham in the county court for Adams County with one count of driving under the influence. Graham appeared pro se at the December 17 arraignment and requested a continuance so that he could retain counsel. The following colloquy occurred during the arraignment:

THE COURT: . . . Are you asking for a continuance then, so that you can retain [counsel]? [Graham:] Yes.

THE COURT: Any objection by the State?

[State:] No, Your Honor.

THE COURT: All right. We'll come back January 22^ndat 9 a.m. for a further hearing in this matter. At that time, you'll come back with your attorney; he'll probably do an entry of plea and he'll let you know what to do. There's a bond set that will continue. Speedy trial tolls today's date through January 22^nd.

The court did not make any further advisement regarding Graham's right to a speedy trial.

On January 18, 2021, Graham's counsel entered his appearance, tendered Graham's written plea of not guilty, and requested the matter be set for a jury trial. On February 11, Graham filed a motion to suppress, and the suppression hearing was held on April 28. The court denied the motion to suppress on August 3 and set the matter for a jury trial. During the October 19 pretrial hearing, Graham waived his right to a jury trial, and the court scheduled the bench trial to commence on December 28.

On December 28, 2021, Graham filed a motion for discharge on constitutional and statutory speedy trial grounds. A hearing thereon was held in February 2022. On July 22, the county court granted Graham's motion for discharge based on a violation of his statutory right to a speedy trial. Specifically, the county court found that during the arraignment, the county court did not advise Graham, who was unrepresented by counsel, of the effect of requesting a continuance. The court only stated that "[s]peedy trial tolls today's date through January 22^nd." Because of the court's failure to advise Graham of the effect of waiving his right to a speedy trial pursuant to Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016), the county court found that the time from the December 17, 2020, original arraignment date to the January 22, 2021, continued arraignment date was not excludable.

On August 1, 2022, the State filed in the county court its notice of intent to take exception to the county court's order pursuant to Neb. Rev. Stat. § 29-2317 (Reissue 2016). An identical notice was filed in the district court on August 19. According to the State's brief on appeal, the State did not pay the docket fee or request to pay the docket fee to the county court. Instead, the State paid the docket fee in the form of a claim collectible to the district court when it filed the identical notice of appeal in the district court.

On December 1, 2022, the district court reversed the county court's order that had granted Graham's motion for discharge due to a violation of Graham's statutory right to a speedy trial and remanded the cause to the county court for further proceedings. Graham has timely appealed the district court's order.

ASSIGNMENTS OF ERROR

Graham assigns that the district court (1) did not have subject matter jurisdiction to hear the State's appeal and (2) erred when it reversed the county court's order granting his motion for discharge.

STANDARD OF REVIEW

Subject matter jurisdiction is a question of law. Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023). An appellate court independently reviews questions of law decided by a lower court. Id.

Generally, a trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous. State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019).

ANALYSIS

Graham's first assignment of error is that the district court lacked jurisdiction to hear the State's appeal from the county court's order granting his motion for discharge. More specifically, he argues that the district court lacked subject matter jurisdiction over the State's appeal because the State failed to deposit a docket fee as required by Neb. Rev. Stat. § 25-2729 (Cum. Supp. 2022) in connection with pursuing an exception proceeding.

Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. Huff v. Otto, 28 Neb.App. 646, 947 N.W.2d 343 (2020). Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. Id. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. Id. A court action taken without subject matter jurisdiction is void. Id.

An appellate court has an independent duty to decide jurisdictional issues on appeal, even if the parties have not raised the issue. Davis v. State, 297 Neb. 955, 902 N.W.2d 165, (2017). And when a trial court lacks the power, that is, jurisdiction, to adjudicate the merits of a claim, an appellate court also lacks the power to adjudicate the merits of the claim. Id. It has been repeatedly held that the failure to pay the docket fee is jurisdictional. Kowalewski v. Madison Cty. Bd. of Comrs., 310 Neb. 812, 969 N.W.2d 392 (2022).

Here, following the county court's dismissal of the State's case against Graham, the State filed a notice of appeal pursuant to § 29-2317 in the county court. The State filed an identical notice of appeal in the district court. In its brief on appeal, the State asserts that it electronically paid the docket fee to the district court in the form of a claim collectible instead of depositing the docket fee with the clerk of the county court, as required under § 25-2729(1)(b). Accordingly, the State concedes that the district court may have lacked jurisdiction to consider the State's appeal.

The issue requires that we examine the procedural rules governing the perfection of criminal appeals from the county court to the district court. In State v. Thalken, 299 Neb. 857, 871-72, 911 N.W.2d 562, 574 (2018), the Nebraska Supreme Court held:

In contrast to the statutes governing district courts, the statute limiting appeals from county court in criminal cases [under § 25-2729] is explicit: "Any party in a civil case and any defendant in a criminal case may appeal from the final judgment or final order of the county court to the district court of the county where the county court is located." This statute also states in part, "In a criminal case, a prosecuting attorney may obtain review by exception proceedings pursuant to sections 29-2317 to 29-2319." Thus, it is clear that in regard to a criminal case in county court, a defendant may "appeal," but the

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