State v. Penado

State of NebraSka , appellaNt, v.
C eSar peNado, appellee .
804 N.W.2d 160
Filed October 7, 2011. 	No. S-10-1049.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, which an appellate court resolves independently of the trial court.
2. ____: ____. 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. 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.
4. Criminal Law: Judgments: Appeal and Error. Neb. Rev. Stat. § 29-2315.01
(Reissue 2008) grants the State the right to seek appellate review of adverse crim-
inal rulings and specifies the special procedure by which to obtain such review.
5. Criminal Law: Final Orders. A judgment entered during the pendency of a
criminal cause is final 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 Lancaster County: SteveN
d. burNS, Judge. Appeal dismissed.
Joe Kelly, Lancaster County Attorney, and Lory A. Pasold
for appellant.
Dennis R. Keefe, Lancaster County Public Defender, and
Scott P. Helvie for appellee.
H eaviCaN, 	C.J., 	WrigHt, 	C oNNolly, 	gerrard, 	StepHaN,
MCC orMaCk , and M iller-lerMaN, JJ.
MCC orMaCk , J.
NATURE OF CASE
Cesar Penado was charged with murder in the first degree,
use of a weapon to commit a felony, and burglary. Following
Penado’s request for a hearing to determine competency, the
Lancaster County District Court found that Penado was not
competent to stand trial and determined that there was not a
substantial likelihood that Penado may become competent in
the foreseeable future. The State of Nebraska appeals.
STATE v. PENADO 	495
Cite as 282 Neb. 495
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

BACKgROUND
The State charged Penado with murder in the first degree,
use of a weapon to commit a felony, and burglary. Penado was
arraigned and entered pleas of not guilty on all three counts.
Prior to trial, Penado filed a motion for a competency evalua-
tion pursuant to Neb. Rev. Stat. § 29-1823 (Reissue 2008). The
district court granted Penado’s motion and ordered him to be
evaluated at the Lincoln Regional Center.
On July 9, 2008, a hearing to determine Penado’s compe-
tency to stand trial was held. Following the hearing, on July
22, the district court entered an order finding that Penado was
not competent to stand trial, but that there was a substantial
probability that Penado will become competent to stand trial
within the foreseeable future. The court ordered Penado to
be committed to the regional center for appropriate treatment
“until such time as the disability may be removed.” The court
further ordered that a hearing to review competency would be
held in January 2009.
On January 15, 2009, a hearing to review competency was
held. Penado’s admission to the regional center had been
delayed due to a lack of beds available. Penado was admit-
ted in September 2008. Because Penado’s treatment had been
delayed, the court concluded that additional time should be
given to the treating physicians at the regional center to deter-
mine whether their efforts were likely to restore Penado’s
competency. The court again ordered Penado to remain in the
custody of the regional center “until such time as the disability
may be removed.”
On September 14 and 24, 2009, a hearing to review com-
petency was held. In a September 29 order, the court again
determined that additional time should be given, and ordered
Penado to remain in the custody of the regional center. Penado
perfected an appeal from the September 29 order. In case
No. A-09-1081, the Nebraska Court of Appeals issued a man-
date to the district court on May 5, 2010. Citing Neb. Ct. R.
App. P. § 2-107(B)(3) (rev. 2008) and State v. Jones,1 the
Court of Appeals vacated the September 29, 2009, order, and
1 State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000).
496 	282 NEBRASKA REPORTS

remanded the cause with directions for the district court to
enter an order in compliance with § 29-1823. Upon remand,
the district court entered an amended order on competency on
May 13, 2010. The amended order found that Penado remained
not competent to stand trial, but that there was a substantial
likelihood that Penado will become competent within the fore-
seeable future.
On August 3 and 24, 2010, the final hearing to review
Penado’s competency was held. The court heard testimony
and received evidence regarding Penado’s competency. On
September 16, the district court entered an order on compe-
tency, finding that Penado was not competent to stand trial and
that there was not a substantial probability that Penado will
become competent in the foreseeable future. The court noted a
number of complications impeding competency and restorabil-
ity, including Penado’s psychosis, his anxiety toward the court
process, and his degree of mental retardation.
The September 16, 2010, order did not dismiss the charges
against Penado. The court gave the State 10 days to commence
civil commitment proceedings pursuant to § 29-1823(3). The
order directed Penado to be released from custody if a tempo-
rary or final civil commitment order was not entered within 10
days. The State thereafter sought and obtained civil commit-
ment of Penado.2
On October 5, 2010, the State presented an application
for leave to docket an appeal in the district court, which was
reviewed by the district court. Also on October 5, the State
filed its notice of intention to prosecute an appeal. On October
15, the State filed its application for leave to docket an appeal
in the Court of Appeals. The State filed its appeal pursuant to
Neb. Rev. Stat. § 29-2315.01 (Reissue 2008). We moved the
case to our docket on our own motion.
Penado sought summary dismissal of the State’s appeal
for lack of jurisdiction. In his motion for summary dismissal,
Penado contended that the State failed to comply with the
requirements of Neb. Rev. Stat. §§ 25-1912 (Reissue 2008)
2 See memorandum brief for appellee in support of motion for summary
dismissal at 14.
STATE v. PENADO 	497
Cite as 282 Neb. 495

and 29-2315.01 to perfect a timely appeal. We denied Penado’s
motion for summary dismissal.
ASSIgNMENTS OF ERROR
The State assigns that the district court erred in finding (1)
Penado was not competent to stand trial and (2) there was not
a substantial likelihood that Penado will become competent in
the foreseeable future.
STANDARD OF REVIEW
[1] The question of jurisdiction is a question of law, which
an appellate court resolves independently of the trial court.3
ANALYSIS
[2] In his motion for summary dismissal, Penado raises the
issue of whether this court has jurisdiction over the State’s
appeal. Penado argues, among other things, that the order from
which the State appealed does not constitute a final, appealable
order as required by § 29-2315.01. In light of Penado’s asser-
tions and in light of the timing of the State’s application for
leave to docket an appeal, we must first determine whether we
have jurisdiction to decide the issues presented in the present
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.4
[3,4] In the absence of specific statutory authorization, the
State, as a general rule, has no right to appeal an adverse rul-
ing in a criminal case.5 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.6
This court has consistently maintained that strict compliance
with § 29-2315.01 is required to confer jurisdiction.7 Section
29-2315.01 provides in relevant part:
3 In re Interest of D.H., 281 Neb. 554, 797 N.W.2d 263 (2011).
4 Id.
5 State v. Johnson, 259 Neb. 942, 613 N.W.2d 459 (2000).
6 See, State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006); State v.
Wieczorek, 252 Neb. 705, 565 N.W.2d 481 (1997).
7 See State v. Johnson, supra note 5.
498 	282 NEBRASKA REPORTS

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
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.)
Section 29-2315.01 does not permit an appeal by the State
from any interlocutory ruling of the trial court in a criminal
proceeding. This is consistent with the longstanding prin-
ciple of avoiding piecemeal appeals arising out of one set of
operative facts.8 And it is well established that a party may
appeal from a court’s order if the decision is a final, appeal-
able order.9
In this case, the State filed its application for leave to
docket an appeal and notice of appeal on October 5, 2010.
The court’s September 16 competency order, from which the
State appealed, did not dismiss the charges against Penado.
The record does not contain an order dismissing the charges
against Penado. And at oral argument, the State conceded and
Penado stipulated that the charges against Penado have yet to
be dismissed.
8 See State v. Wieczorek, supra note 6.
9 State v. Pruett, 258 Neb. 797, 606 N.W.2d 781 (2000).
STATE v. PENADO 	499
Cite as 282 Neb. 495

[5,6] A judgment entered during the pendency of a crimi-
nal cause is final when no further action is required to com-
pletely dispose of the cause pending.10 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.11
The September 16, 2010, order did not terminate the pro-
ceedings below, and further action is required to completely
dispose of the cause in the district court. The competency order
entered by the district court was therefore not a final order
as required by § 29-2315.01, and the State’s application was
premature. The State failed to comply with the jurisdictional
requirements of § 29-2315.01. Therefore, we lack jurisdiction
over the present appeal.
CONCLUSION
Because the State did not appeal from a final order as
required by § 29-2315.01, we lack jurisdiction over this appeal.
When an appellate court is without jurisdiction to act, the
appeal must be dismissed.12 Accordingly, the State’s appeal
is dismissed.
appeal diSMiSSed.
10 State v. Dunlap, supra note 6.
11 Id.
12 Id.
500 	282 NEBRASKA REPORTS