State v. Jones

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. JONES
Cite as 320 Neb. 766
State of Nebraska, appellant, v.
Trevor M. Jones, appellee.
___ N.W.3d ___
Filed January 30, 2026. 	No. S-25-125.
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. Criminal Law: Judgments: Jurisdiction: Appeal and Error. In the
absence of specific statutory authorization, the State, as a general rule,
has no right to appeal an adverse ruling in a criminal case.
3. Criminal Law: Final Orders: Jurisdiction: Appeal and Error. A fail-
ure to strictly comply with the jurisdictional prerequisites of Neb. Rev.
Stat. § 29-2315.01 (Cum. Supp. 2024) prevents the State from obtaining
any review of a trial court’s final order in a criminal case.
4. Courts: Appeal and Error. The doctrine of stare decisis does not
require appellate courts to blindly perpetuate a prior interpretation of
the law if it was clearly incorrect, but it is entitled to great weight and
requires that the courts adhere to their previous decisions unless the
reasons therefor have ceased to exist, are clearly erroneous, or are mani-
festly wrong and mischievous or unless more harm than good will result
from doing so.
Petition for further review from the Court of Appeals,
Moore, Bishop, and Welch, Judges, on appeal thereto from
the District Court for Lancaster County, Susan I. Strong,
Judge. Judgment of Court of Appeals affirmed.
Michael T. Hilgers, Attorney General, Zachary A. Viglianco,
and Cody S. Barnett, for appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:56 AM CDT

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STATE v. JONES
Cite as 320 Neb. 766
Michael J. Wilson and Mallory N. Hughes, of Berry Law
Firm, for appellee.
Funke, C.J., Cassel, Stacy, Papik, and Freudenberg, JJ.
Papik, J.
In this case, we address a somewhat arcane question of
appellate 	procedure: 	Could 	the 	State 	of 	Nebraska 	obtain
appellate review of a district court order granting a criminal
defendant’s motion for absolute discharge on statutory speedy
trial grounds by filing an ordinary appeal pursuant to Neb.
Rev. Stat. § 25-1912 (Cum. Supp. 2024)? Or was it instead
required to pursue an exception proceeding under Neb. Rev.
Stat. § 29-2315.01 (Cum. Supp. 2024)? We conclude that under
the circumstances, the State was obligated to pursue an excep-
tion proceeding under § 29-2315.01. Because it did not follow
the procedures required to do so here, we affirm the order of
the Nebraska Court of Appeals dismissing the State’s appeal.
I. BACKGROUND
1. Proceedings in District Court
The question of appellate procedure before us arises out
of the State’s prosecution of Trevor M. Jones. In November
2023, the State charged Jones with theft by deception, $5,000
or more.
About a year after he was charged, Jones filed a motion
for absolute discharge. In it, he asserted that the State had
failed to bring him to trial within the time required by
Nebraska’s speedy trial statute, see Neb. Rev. Stat. § 29-1207
(Reissue 2016), and that accordingly, he should receive abso-
lute discharge from the alleged offense, see Neb. Rev. Stat.
§ 29-1208 (Reissue 2016). The district court held a hearing
on the motion. Following the hearing, the district court deter-
mined that Jones’ speedy trial rights had indeed been violated.
The district court entered an order sustaining his motion for
absolute discharge.

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STATE v. JONES
Cite as 320 Neb. 766
Displeased with the district court’s order, the State attempted
to challenge it in the appellate courts. It did so by filing a
notice of appeal in the district court within 30 days of the
district court’s order. Importantly for purposes of this opinion,
however, the State did not follow the procedures necessary to
obtain review under § 29-2315.01. That statute authorizes the
State to obtain review of “any ruling or decision of the court
made during the prosecution of a cause” through what are
sometimes referred to as “exception proceedings,” see, e.g.,
State v. Lewis, 319 Neb. 847, 25 N.W.3d 421 (2025), or “error
proceedings,” see, e.g., State v. Warner, 290 Neb. 954, 863
N.W.2d 196 (2015). The State instead merely filed a notice of
appeal in the district court.
2. Proceedings in Court of Appeals
The State’s appeal was docketed in the Court of Appeals.
Shortly thereafter, the Court of Appeals entered an order to
show cause. In it, the Court of Appeals noted that the record
before it did not demonstrate that the State had followed the
requirements to commence an exception proceeding set forth
in § 29-2315.01. The Court of Appeals directed the State to
demonstrate why the appeal should not be dismissed for lack
of jurisdiction.
In its response to the order to show cause, the State
acknowledged that it had not followed the steps necessary to
obtain review under § 29-2315.01, but it asserted that it was
not required to do so. The State contended that rather than
pursuing an exception proceeding, it was seeking review of
the district court’s order pursuant to § 25-1912, the general
statute setting forth the procedure for obtaining appellate
review of a final order entered in the district court. The State
argued that it was entitled to pursue an ordinary appeal under
§ 25-1912 because it was appealing from a final order, spe-
cifically an order affecting a substantial right made during
a special proceeding. See Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2024).

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STATE v. JONES
Cite as 320 Neb. 766
After the State submitted its response to the order to show
cause, Jones filed a motion for summary dismissal pursuant to
Neb. Ct. R. App. P. § 2-107(B)(1) (rev. 2022). Jones argued
that the State was attempting to obtain review of an adverse
ruling in a criminal case and that to do so, it was required to
comply with § 29-2315.01. Because it had not done so, Jones
contended the Court of Appeals lacked jurisdiction.
Before the State’s time to respond to Jones’ motion for sum-
mary dismissal had expired, see § 2-107(B)(4), the Court of
Appeals sustained Jones’ motion for summary dismissal. The
Court of Appeals’ minute entry sustaining Jones’ motion stated
that the State’s “attempt to file a direct appeal in a criminal
case failed to comply with § 29-2315.01.” In support, the
Court of Appeals cited State v. Johnson, 259 Neb. 942, 613
N.W.2d 459 (2000) (Johnson), which it characterized as hold-
ing that the “failure to strictly comply with . . . § 29-2315.01
prevents State from obtaining review of trial court’s final order
in [a] criminal case.”
The State filed a motion for rehearing in the Court of
Appeals. In addition to arguing that the Court of Appeals’ dis-
missal was wrong on its merits, the State argued that the Court
of Appeals erred by granting Jones’ motion before the State’s
time to respond had expired.
The Court of Appeals overruled the State’s motion for
rehearing. Its minute entry overruling the State’s motion noted
that the State had the opportunity to be heard regarding the
jurisdictional issue both in its response to the order to show
cause and again in its motion for rehearing.
We granted the State’s petition for further review.
II. ASSIGNMENTS OF ERROR
In its petition for further review, the State assigns two
errors. It contends the Court of Appeals erred (1) by dismiss-
ing the State’s appeal for failure to complete the steps neces-
sary to obtain review under § 29-2315.01 and (2) by granting

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Jones’ motion for summary dismissal before the State’s time to
respond had expired.
III. STANDARD OF REVIEW
[1] 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 inde-
pendent of the lower court’s decision. State v. A.D., 305 Neb.
154, 939 N.W.2d 484 (2020).
IV. ANALYSIS
1. Correct Vehicle: Exception Proceeding
or Ordinary Appeal?
The central question before us in this petition for further
review is whether the State was required to complete the
steps necessary to initiate an exception proceeding pursuant
to § 29-2315.01 or whether it could obtain review of the dis-
trict court’s order granting Jones absolute discharge by simply
perfecting an ordinary appeal pursuant to § 25-1912. Before
turning to the parties’ arguments on this question, we provide
some relevant background regarding limits on the State’s right
to appeal in criminal cases.
(a) Limits on State’s Right to
Appeal in Criminal Cases
[2] This court has recognized on many occasions that in the
absence of specific statutory authorization, the State, as a gen-
eral rule, has no right to appeal an adverse ruling in a criminal
case. See, e.g., State v. Baird, 238 Neb. 724, 472 N.W.2d 203
(1991). Section 29-2315.01, however, specifically authorizes
the State to seek appellate review of adverse rulings in crimi-
nal cases. See State v. Johnson, 259 Neb. 942, 613 N.W.2d
459 (2000).
But while § 29-2315.01 provides the State with a right of
review in criminal cases, it also sets forth special procedures
the State must follow to obtain such review. See Johnson,

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supra. For example, § 29-2315.01 requires the State to, within
20 days of the ruling it wishes to challenge, file an application
with the trial court to “take exception” to that ruling. After
obtaining the signature of the trial judge, the State must then
present the application to the appellate court. If the application
is granted by the appellate court, the State must then “proceed
to obtain a review of the case as provided in section 25-1912.”
See § 29-2315.01. There is no dispute the State did not follow
these procedures in this case.
[3] A failure to strictly comply with the jurisdictional pre-
requisites of § 29-2315.01 prevents the State from obtaining
any review of a trial court’s final order in a criminal case.
Johnson, supra. Put another way, the State cannot, in a crimi-
nal case, ignore the provisions of § 29-2315.01 and obtain
review “simply by filing a notice of appeal under the provi-
sions of the general appeal statute.” State v. Baird, 238 Neb. at
726, 472 N.W.2d at 205. See, also, State v. Merrill, 273 Neb.
583, 731 N.W.2d 570 (2007) (dismissing appeal in criminal
case brought pursuant to general appeal statutes).
(b) Parties’ Positions
We do not understand the parties to dispute any of the limits
on the State’s right to appeal in criminal cases that we have
just discussed. Instead, the parties’ dispute centers on whether
those limits have any application in this case. Jones contends
that the Court of Appeals was correct to conclude that because
this is a criminal case, the State could obtain review only by
complying with the requirements of § 29-2315.01.
The State sees things differently. The State acknowledges,
as it must, that its prosecution of Jones was criminal in nature.
It takes the position, however, that the proceedings regarding
Jones’ motion for absolute discharge were not criminal, but
civil. The State reaches this conclusion by first correctly
observing that this court has held that, when a district court
enters an order resolving a motion for discharge on statutory
speedy trial grounds, it does so in a special proceeding for

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purposes of § 25-1902(1)(b). See State v. Jacques, 253 Neb.
247, 570 N.W.2d 331 (1997). The State goes on to argue that
special proceedings are inherently civil in nature. It follows,
the State asserts, that the district court’s order granting Jones
absolute discharge was not actually entered in a criminal case
and thus, the State could challenge the order via an ordinary
appeal pursuant to § 25-1912.
(c) Precedent
Both parties invoke precedent from this court in favor of
their respective positions. We begin our analysis there.
As noted above, the Court of Appeals cited Johnson, supra,
in its minute entry dismissing the State’s appeal. In Johnson, as
here, a district court granted a criminal defendant’s motion for
absolute discharge on statutory speedy trial grounds, and, as
here, the State wished to challenge that decision. In Johnson,
the State attempted to initiate an exception proceeding pursu-
ant to § 29-2315.01, but it failed to comply with some of the
mandatory provisions of that statute. We concluded that we
lacked jurisdiction because of the State’s failure to comply
with the requirements of § 29-2315.01.
We concluded in Johnson that the order granting absolute
discharge was entered in a criminal case and that therefore, the
State was required to seek review under § 29-2315.01. We said
that § 29-2315.01 “grants the State the right to seek Supreme
Court review of adverse criminal rulings such as those involved
in this case, and specifies the special procedure by which to
obtain such review.” Johnson, 259 Neb. at 945, 613 N.W.2d at
462 (emphasis supplied). We also said that “[b]ecause the right
of the State to appeal from a final order in a criminal case is
limited by the express provisions of § 29-2315.01, the State’s
failure to comply with § 29-2315.01 in the instant case pre-
vents this court from having jurisdiction . . . .” Johnson, 259
Neb. at 947, 613 N.W.2d at 463 (emphasis supplied).
More recently, we again concluded that orders granting
discharge 	on 	statutory 	speedy 	trial 	grounds 	are 	properly

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challenged via an exception proceeding. In State v. Bixby, 311
Neb. 110, 971 N.W.2d 120 (2022) (Bixby), after a district court
granted a criminal defendant absolute discharge, the State filed
both an ordinary appeal pursuant to § 25-1912 and an excep-
tion proceeding under § 29-2315.01. We concluded that we
had jurisdiction to hear the exception proceeding pursuant to
§ 29-2315.01. Although we did not explain our reasoning, our
conclusion that we had jurisdiction to hear the exception pro-
ceeding is consistent with the conclusion reached in Johnson
that an order granting absolute discharge is entered in a crimi-
nal case and thus subject to review under § 29-2315.01.
In its petition for further review, the State argues that its
position that it could obtain review via an ordinary appeal is
supported by our decision in State v. Harris, 307 Neb. 237,
948 N.W.2d 736 (2020). In Harris, we did determine that we
had jurisdiction over an ordinary appeal filed by the State
challenging an order granting a criminal defendant’s motion
for absolute discharge on speedy trial grounds. But Harris
came to this court with a procedural history that was uniquely
complicated, and that uniquely complicated procedural history
was central to our jurisdictional analysis.
In Harris, the order granting absolute discharge was entered
in a postconviction proceeding, which is recognized as civil
in nature. See, e.g., Neb. Rev. Stat. § 29-3001(2) (Cum. Supp.
2024) (providing that postconviction proceedings are “civil
in nature”); State v. Pratt, 273 Neb. 817, 733 N.W.2d 868
(2007). There, the district court had entered an order granting
a new criminal trial. But we determined that order was void
because in a previous appeal in the same case, this court had
issued a mandate requiring the district court to first conduct
proceedings under the Nebraska Postconviction Act. Because
the order granting a new trial was a nullity, we explained that
the order granting absolute discharge was actually entered
in the context of postconviction proceedings. And because
proceedings under the Nebraska Postconviction Act are rec-
ognized to be civil in nature, see Harris, supra, we held that

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STATE v. JONES
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the State’s ordinary appeal was not subject to the limits on the
State’s right to appeal in criminal cases.
We made clear in Harris that we were not holding that
the State could always challenge an order granting absolute
discharge on speedy trial grounds via an ordinary appeal. We
stated that we did not have to decide whether the principle
that the State has no right to appeal in a criminal case absent
specific statutory authorization would bar “an ordinary order
granting a defendant’s motion for absolute discharge.” Id.
at 270, 948 N.W.2d at 760. Harris held that the State may
obtain review of an order granting absolute discharge in the
extremely rare case in which a trial court grants absolute dis-
charge in the context of postconviction proceedings. Harris
does not speak to whether the State could pursue an ordinary
appeal in this case.
To sum up our precedent in this area, we determined in
Johnson and Bixby that orders granting a criminal defendant
absolute discharge are properly challenged via exception pro-
ceedings. Harris recognized a narrow exception in which such
an order could be challenged via an ordinary appeal, but that
exception does not apply here. We next discuss the relevance
of our precedent to the case before us today.
(d) Stare Decisis
Our prior determinations that orders granting a criminal
defendant 	absolute 	discharge 	are 	properly 	challenged 	via
exception proceedings are significant to our resolution of this
case. As we have recognized on a number of occasions, the
doctrine of stare decisis generally requires appellate courts to
adhere to their previous decisions. See, e.g., Cano v. Walker,
297 Neb. 580, 901 N.W.2d 251 (2017).
The doctrine of stare decisis has its roots in the English
common law. No less an authority on that subject than Sir
William Blackstone wrote that “it is an established rule to
abide by former precedents” to “keep the scale of justice even
and steady, and not liable to waver with every new judge’s

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opinion.” 1 William Blackstone, Commentaries on the Laws
of England 69 (1768). The doctrine’s common-law heritage is
relevant because in 1866, Nebraska adopted the common law
of England as the law within Nebraska to the extent not incon-
sistent with the “[C]onstitution of the United States, with the
organic law of this territory, or with any law passed or to be
passed by the legislature of this territory.” See Rev. Stat. ch.
7, § 1, p. 31 (1866), now codified at Neb. Rev. Stat. § 49-101
(Reissue 2021).
Not only does the doctrine of stare decisis have common-
law origins, courts have recognized that it advances important
values. The U.S. Supreme Court has observed that the doctrine
of stare decisis “promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v. Tennessee, 501 U.S.
808, 827, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991). We have
said the same. See, e.g., Cano, supra. See, also, The Federalist
No. 78 at 470 (Alexander Hamilton) (Clinton Rossiter ed.,
2003) (observing that stare decisis is “indispensable” to “avoid
an arbitrary discretion in the courts”).
Obviously, stare decisis is not an “inexorable command.”
Dobbs v. Jackson Women’s Health Organization, 597 U.S.
215, 292, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).
Appellate courts can decide that a previous decision should
not be followed. This court has done so many times. See, e.g.,
Bogue v. Gillis, 311 Neb. 445, 973 N.W.2d 338 (2022); Porter
v. Porter, 309 Neb. 167, 959 N.W.2d 235 (2021); State on
behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d
692 (2019); McEwen v. Nebraska State College Sys., 303 Neb.
552, 931 N.W.2d 120 (2019); Davis v. State, 297 Neb. 955,
902 N.W.2d 165 (2017). Under the doctrine of stare decisis,
however, “adherence to precedent is the norm.” Ramos v.
Louisiana, 590 U.S. 83, 120, 140 S. Ct. 1390, 206 L. Ed. 2d
583 (2020) (Kavanaugh, J., concurring in part). Moreover, the

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question of whether a court should deviate from a prior deci-
sion is itself guided by legal principles.
[4] When called to decide whether precedent should be
followed or overruled, courts often consider what Justice
Kavanaugh has described as “precedents on precedent.” Id. In
that vein, we have said that the doctrine of stare decisis does
not require appellate courts to blindly perpetuate a prior inter-
pretation of the law if it was clearly incorrect, but it is entitled
to great weight and requires that the courts adhere to their pre-
vious decisions unless the reasons therefor have ceased to exist,
are clearly erroneous, or are manifestly wrong and mischievous
or unless more harm than good will result from doing so. Cano
v. Walker, 297 Neb. 580, 901 N.W.2d 251 (2017). In deciding
whether to adhere to prior decisions, we have also considered
factors identified by the U.S. Supreme Court as relevant to that
task, including “workability [of the precedent], the antiquity of
the precedent, whether the decision was well reasoned, whether
experience has revealed the precedent’s shortcomings, and the
reliance interests at stake.” Heckman v. Marchio, 296 Neb. 458,
467, 894 N.W.2d 296, 302 (2017).
With these principles in mind, we will next consider whether
we should adhere to our prior decisions that an order granting
absolute discharge is properly challenged via an exception pro-
ceeding or adopt the State’s argument that such an order can
be challenged via an ordinary appeal.
(e) Adhere to Precedent?
The State contends that to the extent Johnson and Bixby
held that an order granting absolute discharge is properly
challenged via an exception proceeding, those decisions were
wrong. As noted above, the State argues that proceedings to
resolve a motion for absolute discharge are civil in nature and
that therefore, an order granting discharge can be challenged
via an ordinary appeal.
Before assessing the State’s argument, we observe that, for
us to deviate from our decisions in Johnson and Bixby, the

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State must do more than show that those decisions were sim-
ply incorrect. As Justice Scalia once wrote, if a prior decision
can be ignored solely upon a determination that it was wrong,
the doctrine of stare decisis “would be no doctrine at all.”
Hubbard v. United States, 514 U.S. 695, 716, 115 S. Ct. 1754,
131 L. Ed. 2d 779 (1995) (Scalia, J., concurring in part and
concurring in judgment). We have recognized that the relative
merits of a prior decision can be relevant to whether that deci-
sion should be followed in subsequent cases but have said that
a prior decision can be overruled if it was “clearly erroneous”
or “manifestly wrong.” Cano, 297 Neb. at 593, 901 N.W.2d at
260 (emphasis supplied). See, also, Dobbs v. Jackson Women’s
Health Organization, 597 U.S. 215, 268, 142 S. Ct. 2228, 213
L. Ed. 2d 545 (2022) (describing overruled precedent as “egre-
giously wrong”); Ramos v. Louisiana, 590 U.S. 83, 121, 140 S.
Ct. 1390, 206 L. Ed. 2d 583 (2020) (Kavanaugh, J., concurring
in part) (explaining that in considering whether to give prior
decision stare decisis effect, question is whether that decision
is “not just wrong, but grievously or egregiously wrong”).
The State appears to face a difficult challenge in showing
that Johnson and Bixby were clearly erroneous. In neither case
did this court explain its reasoning in extensive detail, but our
determination in those cases that an order granting discharge
is properly challenged via an exception proceeding plainly
rested on the conclusion that an order granting absolute dis-
charge is an order entered in a criminal case. At least at first
blush, that conclusion seems far from clearly wrong.
A motion for absolute discharge based on the statutory
right to a speedy trial asserts that the State has failed to try
a criminal defendant within a required timeframe. When suc-
cessful, it results in the dismissal of the criminal charges. The
statutes recognizing the right to a speedy trial appear in the
statutory chapter dealing with criminal procedure. See Neb.
Rev. Stat. § 29-1205 et seq. (Reissue 2016). A motion for
absolute discharge is also distinguishable from various other
proceedings that collaterally attack criminal judgments of

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conviction and are recognized to be civil in nature, see State
v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020); a motion
for absolute discharge is filed in a criminal action before any
judgment is entered. And, notwithstanding the State’s posi-
tion in this case that proceedings on a motion for absolute
discharge are civil in nature, counsel for the State agreed
at oral argument that criminal defendants retain their Sixth
Amendment right to counsel during proceedings on a motion
for absolute discharge, even though the Sixth Amendment
applies in “criminal prosecutions.”
Despite all that, the State maintains that proceedings on
a motion for discharge are civil in nature. Proceedings on a
motion for discharge have been recognized to be special pro-
ceedings, and, according to the State, all special proceedings
are inherently civil.
The State’s argument in support of its position primarily
relies on history. Marshaling an impressive array of original
and secondary sources, the State makes a case that in 1858,
when the Nebraska Territorial Legislature first enacted a code
of procedure and included reference to “special proceedings,”
that phrase would have been understood to refer to a category
of proceedings that were inherently civil in nature. The State
points out that the code of procedure adopted by the Nebraska
Territorial Legislature was based on a code that had been
adopted in Ohio, which was itself patterned after the New York
Code of Procedure—popularly known as the Field Code. See
John P. Lenich, What’s So Special About Special Proceedings?
Making Sense of Nebraska’s Final Order Statute, 80 Neb. L.
Rev. 239 (2001). Although the Field Code and the Nebraska
code of procedure that was based upon it recognized the exis-
tence of civil actions, criminal actions, and special proceed-
ings, the State argues that because the operative provisions of
the code exclusively concerned civil procedure, “special pro-
ceedings” would have been understood to be civil in nature.
In addition, the State argues that at the time of the adoption
of the Field Code and the Nebraska code of procedure, civil

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actions, criminal actions, and special proceedings would have
been understood to be distinct from one another. According to
the State, civil actions would have been understood to refer
generally to proceedings brought to enforce rights recognized
by the common law; criminal actions would have been under-
stood to refer to actions brought by the State for punishment
of public offenses; and special proceedings would have been
understood to refer to proceedings brought to enforce rights
created by positive law and unknown to the common law. And
because a person could not be tried and convicted of a crime
in a special proceeding, the State submits, special proceedings
must have been understood to be civil in nature.
Finally, the State also relies on precedent from both this
court and courts of other states. The State cites to language
in some of our prior decisions that have described special
proceedings as “civil statutory remedies not encompassed in
chapter 25 of the Nebraska Revised Statutes.” See, e.g., Steven
S. v. Mary S., 277 Neb. 124, 129, 760 N.W.2d 28, 33 (2009).
It also cites to several decisions from courts of other states
that used similar language to describe special proceedings.
See, e.g., Schuster v. Schuster, 84 Minn. 403, 407, 87 N.W.
1014, 1015 (1901) (“[t]he phrase ‘special proceeding,’ within
its proper definition, is a generic term for all civil remedies in
courts of justice which are not ordinary actions”). The State
argues that these cases reflect that special proceedings have
long been understood to be inherently civil.
We have considered the State’s arguments but are not per-
suaded that it was clearly wrong to conclude that an order
granting absolute discharge is entered in a criminal case and
thus properly challenged via § 29-2315.01. First, we do not
draw the same significance the State does from the fact that
the 1858 code of procedure focused exclusively on civil mat-
ters. Even if the other portions of that code pertained to civil
procedure, it does not automatically follow, in our view, that
the special proceedings referred to in the code were inher-
ently civil.

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And while actions and special proceedings may well have
been originally understood to be mutually exclusive categories
(indeed, our law continues to treat them as such today, see
Tegra Corp. v. Boeshart, 311 Neb. 783, 799, 976 N.W.2d 165,
180 (2022) (“special proceedings and actions are mutually
exclusive categories”)), neither does that dictate, in our view,
that all special proceedings must be civil in nature. A special
proceeding that arises out of a criminal action and the crimi-
nal action itself could be distinct from one another and yet
share the same criminal nature. Indeed, the State’s concession
that criminal defendants continue to have a Sixth Amendment
right to counsel during proceedings on a motion for discharge
recognizes that, at least for some purposes, proceedings on a
motion for discharge are of the same nature as the underlying
criminal action.
As for the language in opinions from this court and oth-
ers referring to special proceedings as civil remedies, this
too fails to persuade us that Johnson and Bixby were clearly
wrong to conclude that proceedings on a motion for dis-
charge are criminal in nature. Over the years, this court has
described special proceedings in several different ways. See
John P. Lenich, What’s So Special About Special Proceedings?
Making Sense of Nebraska’s Final Order Statute, 80 Neb. L.
Rev. 239, 243 (2001) (“[t]he court has defined ‘special pro-
ceeding’ in three ways”). And while one of those descriptions
refers to special proceedings as “‘civil statutory remed[ies],’”
see id., we have also said that a special proceeding “occurs
where the law confers a right and authorizes a special applica-
tion to a court to enforce the right.” Tegra Corp., 311 Neb. at
798, 976 N.W.2d at 179-80. This latter description is consider-
ably broader than the one that describes special proceedings
as “civil statutory remed[ies].” See Lenich, 80 Neb. L. Rev.
at 244 (observing that latter description “seems to be much
broader” than alternatives).
In addition, it has been observed that the various descrip-
tions of special proceedings employed by this court have

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functioned as something other than precise definitions. As
Professor Lenich colorfully once explained with citations to
supporting cases:
The cases say that special proceedings are civil—yet
there are special proceedings that are criminal. The cases
say that special proceedings are statutory—yet there are
special proceedings that are nonstatutory. The cases say
that special proceedings are not encompassed in chapter
25 of the Nebraska Revised Statutes—yet there are spe-
cial proceedings that are encompassed in chapter 25.
Lenich, 80 Neb. L. Rev. at 240-41.
Beyond all we have already discussed, even if it is assumed
for argument that the State is correct that special proceedings
were originally understood to refer to “civil remedies,” this
would solve one problem for the State in this case, but create
another. Specifically, a determination that special proceed-
ings refer exclusively to “civil remedies” would cast doubt on
whether proceedings on a motion for discharge on speedy trial
grounds are properly considered to fall within the category
of special proceedings. As we discussed above, a motion for
discharge is closely tied to a criminal case. It is difficult to
see what would justify saying that a motion for discharge
seeks a “civil remedy.” When we first concluded that pro-
ceedings on a motion for discharge fell into the category of
special proceedings in State v. Jacques, 253 Neb. 247, 570
N.W.2d 331 (1997), we did not do so based on a determina-
tion that a motion for discharge seeks a civil remedy. Instead,
we observed that a motion for discharge “is a legally con-
ferred right that authorizes a special application to a court for
enforcement” and “is a statutory remedy which is not itself an
action.” Id. at 254, 570 N.W.2d at 336.
We do not bring up our determination in Jacques that a
motion for discharge is decided within a special proceed-
ing to call it into question; no one in this case is asking us
to reconsider whether Jacques was correct. We bring it up
merely to make the point that even if the State is right that

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special proceedings were originally understood to be civil in
nature, that does not necessarily mean that we were wrong to
conclude in Johnson and Bixby that proceedings on a motion
for discharge are criminal in nature and thus are subject to
review via exception proceedings.
Not only has the State not demonstrated that Johnson
and Bixby are obviously wrong, it has failed to point to any
other factors that would support a deviation from our deci-
sions in those cases. The State has not, for example, dem-
onstrated that Johnson and Bixby are somehow unworkable
or pose some difficulty that the State cannot overcome. See
Heckman v. Marchio, 296 Neb. 458, 467, 894 N.W.2d 296,
302 (2017) (identifying “workability” as factor to consider
in deciding whether to adhere to principle of stare decisis).
While § 29-2315.01 does impose some additional procedural
requirements on the State if it wishes to obtain review of an
order granting absolute discharge, the State has successfully
initiated exception proceedings to challenge orders granting
absolute discharge in many previous cases. See, e.g., State v.
Space, 312 Neb. 456, 980 N.W.2d 1 (2022); State v. Bixby,
311 Neb. 110, 971 N.W.2d 120 (2022); State v. Washington,
269 Neb. 728, 695 N.W.2d 438 (2005); State v. Knudtson, 262
Neb. 917, 636 N.W.2d 379 (2001); State v. Florea, 20 Neb.
App. 185, 820 N.W.2d 649 (2012). And, if the State com-
pletes the steps necessary to obtain review via an exception
proceeding and convinces the appellate court that the district
court’s order granting discharge was erroneous, that order
will be reversed and the cause remanded for further proceed-
ings. See, e.g., Bixby, supra. It is not clear why in this case
the State did not follow the well-worn path that would have
allowed it to obtain a complete review of the district court’s
discharge order.
Having considered the stare decisis factors, we are not per-
suaded that we should overrule Johnson and Bixby. We thus
conclude that the State could not challenge the order granting
absolute discharge via an ordinary appeal and that the Court

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of Appeals did not err in dismissing the State’s appeal based
on the State’s failure to complete the steps necessary to initiate
an exception proceeding under § 29-2315.01. The State’s first
assignment of error lacks merit.
2. Response Time
In addition to its claim that the Court of Appeals erred
by 	finding 	that 	the 	State 	was 	required 	to 	comply 	with
§ 29-2315.01, the State assigned another error in its petition
for further review. It assigned that the Court of Appeals erred
by dismissing the State’s appeal before its time to respond to
Jones’ motion for summary dismissal had expired. The State
argued that further review should be granted so the question
of appellate jurisdiction presented in this case “is not summar-
ily decided without the benefit of comprehensive adversarial
briefing.” Brief for appellant in support of petition for further
review at 10.
The Court of Appeals did sustain Jones’ motion for sum-
mary dismissal before the motion was submitted under the
rules of appellate procedure. Under those rules, an appellant
may file a written response opposing a motion for summary
dismissal within 10 days from the date of the service of the
motion. See § 2-107(B)(4). The rules also provide that a
motion for summary disposition is not “considered submitted”
until either the “filing of objections or the expiration of time
allowed therefor, or express waiver of the right to file.” See
§ 2-107(B)(5). By sustaining Jones’ motion before the State
had filed a response, before the State had expressly waived
its right to respond, or before the State’s time to respond had
expired, the Court of Appeals decided Jones’ motion before it
was ripe for decision.
But even though the Court of Appeals should have allowed
the State to file a response before sustaining Jones’ motion for
summary dismissal, the State cannot show that it was preju-
diced. After the Court of Appeals sustained Jones’ motion, the
State had the opportunity to make its case for why its appeal

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should not have been dismissed in its petition for further
review. Then, after we granted further review, the State sub-
mitted a nearly 50-page brief outlining its position in this case.
The State then had the opportunity to further develop its posi-
tion in oral argument. After all that, we considered the State’s
position and addressed it in this opinion. Whatever else may
be said about this case, it can certainly no longer be said that
the issue presented was decided summarily or without compre-
hensive adversarial briefing.
Because the State has now had the opportunity to fully
present its case, but we nonetheless conclude that the Court
of Appeals’ dismissal—although perhaps premature—was sub-
stantively correct, the State is not entitled to relief on its sec-
ond assignment of error.
V. CONCLUSION
At the conclusion of an appeal that resolves such an obscure
question of appellate jurisdiction, an observer could be for-
given for asking why any of this really matters or, more specif-
ically, why the State’s mere failure to follow a few procedures
prevents us from entertaining its challenge to Jones’ discharge.
The answer lies in our constitutional separation of powers. The
Legislature decides, through the enactment of statutes, how
and when appellate courts can exercise power. See Heckman
v. Marchio, 296 Neb. 458, 464, 894 N.W.2d 296, 301 (2017)
(“[t]hrough the enactment of statutes, the Legislature has pre-
scribed when a court may exercise appellate jurisdiction [and]
the judicial branch may not circumvent such statutory authori-
zation”). Because the State failed to comply with § 29-2315.01
in a case in which it was required to do so to obtain review, the
appellate courts lack the power to decide the State’s challenge.
The Court of Appeals thus correctly dismissed the State’s
appeal. We affirm its dismissal.
Affirmed.
Bergevin, J., not participating.