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Section 29-116 – Suppression of statement by defendant; order granting suppression; review; procedure; appeal

May 13, 2021 | Criminal Procedure, Nebraska

(1) In addition to any other rights of appeal, the state shall have the right to appeal from an order granting a motion for the suppression of statements alleged to be involuntary or in violation of the fifth or sixth amendments of the Constitution of the United States in the manner provided in this section.
(2) If such motion has been granted in the 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.

Neb. Rev. Stat. § 29-116

Laws 1981, LB 411, § 2;
Laws 1991, LB 732, § 71;
Laws 1992, LB 360, § 7;
Laws 1998, LB 218, § 10.

A defendant’s successful motion in the district court to suppress evidence is not finally granted or determined, unless there is no appeal, until a judge of the Court of Appeals has decided the matter under this section. The time from the defendant’s filing of such motion until final determination is excluded in the speedy trial calculation. State v. Hayes, 10 Neb. App. 833, 639 N.W.2d 418 (2002). A trial court may, in its good judgment, correct its pretrial ruling on a motion to suppress statements, even though such a correction results in denial of the State’s opportunity to appeal the decision to suppress the evidence. State v. Vaida, 1 Neb. App. 768, 510 N.W.2d 389 (1993).