State v. Ritz

for residential purposes and not business, professional, trade,
or commercial purposes, except that this prohibition does not
apply to a clubhouse or other necessary structure used in con-
nection with the golf course on Lot 103. Based upon the clear
and unambiguous language of this provision in the restrictive
covenants, applicable to Lots 96 through 98, we find that the
current uses of those three lots as described by Buttner in
exhibit 14 do not violate the restrictive covenants. The uses
described are all related and necessary for the operation of
the golf course on Lot 103, and therefore, the prohibitions in
article III, § 1, do not apply to such use. We find Mic-Car and
Buttner have failed to show that Elkhorn Ridge has violated
any applicable covenant, and therefore, we find this assign-
ment of error lacks merit.
ConCLusIon
Although upon different reasoning, we affirm the ruling of
the district court. The restrictive covenant found in article III
does not apply to the Elkhorn Apartments described herein,
and the covenant in article IV, § 1, does apply, but is not vio-
lated by the proposed apartment building. Finding no breach
of either restrictive covenant, we find in favor of Mic-Car
and Buttner on these claims. As to the cross-appeal alleging
improper use of Lots 96 through 98 by Elkhorn Ridge, we find
such claim lacks merit, because the current use does not violate
any applicable restrictive covenant.
A ffirmed.
StAte of NebrASkA, AppellANt, v.
eric A. ritz , Appellee .
767 n.W.2d 809
Filed May 12, 2009. 	no. A-08-399.
1. Criminal Law: Judgments: Appeal and Error. In the absence of a specific
statutory authorization, the state, as a general rule, has no right to appeal an
adverse ruling in a criminal case.
2. ____: ____: ____. neb. Rev. stat. § 29-2315.01 (Reissue 2008) grants the state
the right to seek appellate review of adverse criminal rulings and specifies the
special procedure by which to obtain such review.
sTATE v. RITz 	589
Cite as 17 neb. App. 589
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

3. Jurisdiction: Time: Appeal and Error. Timeliness of an appeal is a jurisdic-
tional necessity.
4. Legislature: Courts: Time: Appeal and Error. When the Legislature fixes the
time for taking an appeal, the courts have no power to extend the time directly
or indirectly.
5. Criminal Law: Final Orders. A judgment entered during the pendency of a
criminal cause is final only when no further action is required to completely
dispose of the cause pending.
6. Judgments: Final Orders: Appeal and Error. The test of finality of an order or
judgment for the purpose of appeal is whether the particular proceeding or action
was terminated by the order or judgment.
Appeal from the District Court for Holt County: mArk d.
koziSek, Judge. Appeal dismissed.
Thomas P. Herzog, Holt County Attorney, for appellant.
Gregory G. Jensen, P.C., L.L.o., for appellee.
irwiN, cArlSoN, and moore, Judges.
irwiN, Judge.
I. InTRoDuCTIon
This is an error proceeding brought by the state, pursuant
to neb. Rev. stat. § 29-2315.01 (Reissue 2008). The state
alleges that the district court erred in sentencing Eric A. Ritz to
60 days in jail upon his conviction for issuing a bad check, a
Class III felony. The state asserts that the mandatory minimum
sentence for a Class III felony is 1 year’s incarceration. We
conclude that this court is without jurisdiction in this matter
and, accordingly, dismiss the state’s appeal.
II. BACKGRounD
on september 13, 2004, Ritz pled guilty to issuing a bad
check, a Class III felony. The district court sentenced Ritz to a
2-year term of probation.
Approximately 1 year after Ritz’ conviction and sentence,
the state filed an information and affidavit alleging that Ritz
had violated the conditions of his probation. Ritz pled no con-
test to the allegations in the information, and the district court
extended his term of probation through november 22, 2007.
on March 15, 2006, the state filed another information and
affidavit alleging that Ritz had violated the conditions of his
590 	17 nEBRAsKA APPELLATE REPoRTs

probation. Ritz admitted to the allegations in the information,
and the district court again extended his term of probation. The
probation term was extended through september 2008.
on August 28, 2007, the state filed a third information and
affidavit alleging that Ritz had violated the conditions of his
probation. Ritz pled no contest to the allegations in the infor-
mation. subsequently, on January 14, 2008, the district court
revoked Ritz’ probation and sentenced him to 60 days in jail on
the original charge of issuing a bad check.
on January 16, 2008, 2 days after the sentencing order was
filed, Ritz filed a motion to amend the sentence, which motion
he captioned as a “Motion for Amendment to sentencing
order.” In the motion, Ritz requested that the district court
amend the previous sentencing order to permit him to serve
30 days of his sentence at a residential treatment center for
alcohol abuse.
on January 17, 2008, the day after Ritz filed his motion to
amend the sentencing order, the state filed its application for
leave to docket an appeal, pursuant to § 29-2315.01. The state
alleged that the district court erred in sentencing Ritz to 60
days in jail when the minimum sentence for a Class III felony
was 1 year’s imprisonment.
on January 28, 2008, the district court held a hearing
wherein the court granted Ritz’ request to amend the sentenc-
ing order and granted its approval for the state’s request for
leave to docket an appeal.
We subsequently granted the state’s application for leave
to docket an appeal. After the parties filed their briefs on
appeal, but prior to oral arguments, Ritz filed a motion to dis-
miss the appeal because of lack of jurisdiction in this court.
Ritz alleged that the state’s application for leave to docket
an appeal was not timely, because it was filed prior to the
entry of the final order. Ritz alleged that the final order was
the amended sentencing order, entered on January 29, 2008,
rather than the original sentencing order entered on January
14, 2008.
In an order filed December 1, 2008, we directed the par-
ties to file supplemental briefs on the question of whether the
state’s application for leave to docket an appeal was timely
sTATE v. RITz 	591
Cite as 17 neb. App. 589

filed. We have considered the parties’ supplemental briefs, and
we address in the analysis portion of this opinion the jurisdic-
tional question raised in Ritz’ motion to dismiss.
III. AssIGnMEnT oF ERRoR
The state contends that the district court erred in failing to
impose the mandatory minimum sentence of 1 year’s incarcera-
tion upon a conviction for a Class III felony.
IV. AnALYsIs
In his motion to dismiss, Ritz raises the issue of whether this
court has jurisdiction over the state’s appeal. Ritz argues that
this court lacks jurisdiction because the state failed to timely
file an intent to prosecute appeal from the date of the “final”
sentencing order. In light of Ritz’ assertions and in light of
the issue presented by the timing of the state’s application for
leave to docket an appeal, we must first determine whether we
have jurisdiction to decide the issue presented in the instant
case. 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. see State v. Wieczorek,
252 neb. 705, 565 n.W.2d 481 (1997).
[1,2] In the absence of a specific statutory authorization, the
state, as a general rule, has no right to appeal an adverse rul-
ing in a criminal case. Id. section 29-2315.01 grants the state
the right to seek appellate review of adverse criminal rulings
and specifies the special procedure by which to obtain such
review. State v. Wieczorek, supra. section 29-2315.01 provides
in pertinent part:
The prosecuting attorney may take exception to any
ruling or decision of the court made during the prosecu-
tion of a cause by presenting to the trial court the applica-
tion for leave to docket an appeal with reference to the
rulings or decisions of which complaint is made. such
application shall contain a copy of the ruling or decision
complained of, the basis and reasons for objection thereto,
and a statement by the prosecuting attorney as to the part
of the record he or she proposes to present to the appel-
late court. such application shall be presented to the trial
592 	17 nEBRAsKA APPELLATE REPoRTs

court within twenty days after the final order is entered in
the cause, and upon presentation, if the trial court finds it
is in conformity with the truth, the judge of the trial court
shall sign the same and shall further indicate thereon
whether in his or her opinion the part of the record which
the prosecuting attorney proposes to present to the appel-
late court is adequate for a proper consideration of the
matter. The prosecuting attorney shall then present such
application to the appellate court within thirty days from
the date of the final order.
(Emphasis supplied.)
[3,4] Timeliness of an appeal is a jurisdictional necessity.
State v. Wieczorek, supra. When the Legislature fixes the time
for taking an appeal, the courts have no power to extend the
time directly or indirectly. Id. By its terms, § 29-2315.01
does not permit an appeal by the state from any interlocu-
tory ruling of the trial court in a criminal proceeding. This is
consistent with the longstanding principle of avoiding piece-
meal appeals arising out of one operative set of facts. State v.
Wieczorek, supra.
In this case, Ritz was sentenced on January 14, 2008. Two
days later, on January 16, Ritz filed a motion to amend the
sentencing order. on January 28, the district court granted Ritz’
motion to amend the sentencing order.
on January 17, 2008, the state filed its application for
leave to docket an appeal, 1 day after Ritz filed his motion to
amend the sentencing order and approximately 11 days before
the district court granted Ritz’ motion to amend and altered
the previous sentencing order. Thus, we are confronted with
the question of whether a final order had been entered prior
to the date on which the state filed its application for leave to
docket an appeal.
[5,6] A judgment entered during the pendency of a crimi-
nal cause is final only when no further action is required to
completely dispose of the cause pending. State v. Dunlap, 271
neb. 314, 710 n.W.2d 873 (2006). The test of finality of an
order or judgment for the purpose of appeal is whether the
particular proceeding or action was terminated by the order or
judgment. Id.
sTATE v. RITz 	593
Cite as 17 neb. App. 589

on January 17, 2008, the state filed its application for leave
to docket an appeal, 1 day after Ritz filed a motion to amend
the sentencing order. As such, the state filed its application dur-
ing a time in which further action was necessary to completely
dispose of the cause pending in the district court. The case
was not completely disposed of until the district court ruled on
Ritz’ motion to amend the sentencing order. Accordingly, the
state’s application was premature and failed to comply with the
jurisdiction requirements of § 29-2315.01.
The state argues that the original sentencing order was
a final order because Ritz’ motion to amend the sentencing
order “did not seek substantive alteration of the judgment.”
supplemental brief for appellant at 4-5. The state appears to
base its argument solely on neb. Rev. stat. §§ 25-1912 and
25-1329 (Reissue 2008), which address the finality of orders
in civil cases.
We decline to specifically address whether the practices
and procedures for determining whether an order is final in
civil cases apply to an action brought by the state pursuant to
§ 29-2315.01. Rather, we find that the state’s assertion that
Ritz’ motion did not seek substantive alteration of the judgment
but merely sought to correct a clerical error or sought relief col-
lateral to the judgment is without merit. Ritz’ motion requested
a substantive alteration to the district court’s prior sentencing
order. Ritz sought to amend the terms of the sentence imposed
on him by the district court. Because Ritz’ motion requested
such a substantive alteration, the case was not completely dis-
posed of until the district court ruled on Ritz’ motion to amend
the sentencing order.
V. ConCLusIon
The January 14, 2008, sentencing order was not a final
order. Because Ritz filed a motion to amend that sentencing
order, further action was required to completely dispose of the
case. The case was finally disposed of on January 29, when
the district court granted Ritz’ motion to amend. Accordingly,
the state’s application for leave to docket an appeal filed on
January 17, 2008, was premature. Because the state did not
appeal from a final order as is required by § 29-2315.01, we
594 	17 nEBRAsKA APPELLATE REPoRTs

lack jurisdiction over this appeal. When an appellate court is
without jurisdiction to act, the appeal must be dismissed. State
v. Dunlap, supra. Therefore, we dismiss this appeal.
A ppeAl diSmiSSed.
iN re iNtereSt of tAylA r., A child
uNder 18 yeArS of Age .
StAte of NebrASkA, Appellee , v.
chriStiNA r., AppellANt.
iN re iNtereSt of leA d. et Al .,
childreN uNder 18 yeArS of Age .
StAte of NebrASkA, Appellee , v.
chriStiNA r., AppellANt.
767 n.W.2d 127
Filed May 12, 2009. 	nos. A-08-1150, A-08-1151.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any
other appeal, 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. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the tribunal from
which the appeal is taken.
4. Final Orders: Appeal and Error. The three types of final orders which may be
reviewed on appeal are (1) an order which affects a substantial right and which
determines the action and prevents a judgment, (2) an order affecting a substantial
right made during a special proceeding, and (3) an order affecting a substantial
right made on summary application in an action after judgment is rendered.
5. Juvenile Courts: Appeal and Error. A proceeding before a juvenile court is a
special proceeding for appellate purposes.
6. Juvenile Courts: Parental Rights: Final Orders. Whether a substantial right of
a parent has been affected by an order in juvenile court litigation is dependent
upon both the object of the order and the length of time over which the parent’s
relationship with the juvenile may reasonably be expected to be disturbed.
7. Juvenile Courts: Parental Rights. A preadjudication order granting continued
detention affects a parent’s substantial right.
8. Juvenile Courts: Final Orders. orders determining where a juvenile will be
placed are dispositional in nature.
In RE InTEREsT oF TAYLA R. 	595
Cite as 17 neb. App. 595