State v. Solomon

3. coNStitUtioNAl S peedy triAl
Although blakeman’s motion for discharge referenced both
his statutory and constitutional speedy trial rights, his brief on
appeal does not assign or argue any issue concerning his consti-
tutional speedy trial right. As such, we will not further address
the issue. See State v. Karch, 263 Neb. 230, 639 N.W.2d 118
(2002) (appellate court does not review questions concerning
constitutional speedy trial right when not raised in both trial
and appellate court).
V. CONCLUSION
We find no merit to blakeman’s assertions that the district
court erred in denying his motion for discharge. We affirm.
A ffirmed .
S tAte of N eBrASkA, AppellANt , v .
deNNiS e. S olomoN, Appellee .
744 N.W.2d 475
Filed January 29, 2008. 	No. A-07-297.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision made by the court below.
2. Judgments: Records. Neither Neb. Rev. Stat. § 25-2729 (Reissue 1995) nor Neb.
Rev. Stat. § 25-1301 (Reissue 1995) specifically require a file stamp for entry
of judgment.
3. Judgments: Final Orders: Records. A journal entry signed by the judge and
filed is all that Neb. Rev. Stat. § 25-2729(3) (Reissue 1995) requires for a
final order.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J ohN d. hArtigAN, J r ., Judge. Sentence vacated, and cause
remanded for resentencing.
Donald W. kleine, Douglas County Attorney, and Jennifer
Meckna for appellant.
Robert M. Schartz and Michael G. Monday, of Sodoro, Daly
& Sodoro, P.C., for appellee.
368 	16 NebRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

irwiN, S ieverS, and moore, Judges.
S ieverS, Judge.
After Dennis e. Solomon pled guilty to the underlying
offense of driving while under the influence (DUI), a hearing
was held to determine the validity for enhancement purposes of
one of Solomon’s three prior convictions for DUI. The district
court found that one of the prior convictions was not a valid
conviction for enhancement purposes, due to the lack of a file
stamp on the docket entry or the order of probation. We granted
the State’s application to docket error proceedings, and the
State now appeals the district court’s decision.
FACTUAL AND PROCeDURAL bACkGROUND
On June 27, 2006, the Douglas County Attorney filed an
information charging Solomon with DUI, fourth offense. In its
information, the State alleged that the charge of DUI, fourth
offense, is justified because Solomon was previously convicted
of DUI on February 2, 1998, June 9, 2004, and July 9, 2005.
Solomon pled guilty to DUI, and the district court accepted
Solomon’s plea. At the enhancement hearing, the State offered
certified copies of the three prior convictions. Solomon did
not object to the 2004 or 2005 convictions, and they are not
at issue here. However, Solomon moved to quash the 1998
conviction, arguing that the county court judge in the 2004 and
2005 convictions found that the 1998 conviction was not valid
for enhancement purposes, thereby raising a claim of collat-
eral estoppel, sometimes referred to as issue preclusion, or res
judicata. Solomon also argued that Neb. Rev. Stat. § 25-2729
(Reissue 1995) and State v. Wilcox, 9 Neb. App. 933, 623
N.W.2d 329 (2001), require that the journal entry for the 1998
conviction be file stamped to be a final, appealable order, which
it was not, making such invalid for enhancement purposes.
The district court sustained Solomon’s objection to using the
1998 conviction for enhancement purposes, because the guilty
finding in that case did not contain a file stamp and date. As
a result, the district court found Solomon guilty of DUI, third
offense. The district court later sentenced Solomon to 2 years
of intensive supervision probation, with the first 30 days to be
spent in the Douglas County Correctional Center.
STATe v. SOLOMON 	369
Cite as 16 Neb. App. 368

ASSIGNMeNTS OF eRROR
The State alleges that the district court erred in finding that
the 1998 prior conviction was invalid for enhancement purposes
due to the lack of a file stamp on the journal entry or order
of probation.
STANDARD OF ReVIeW
[1] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. State v. Alba, 270 Neb. 656, 707 N.W.2d 402 (2005).
ANALYSIS
The bill of exceptions before us contains the following
documents regarding Solomon’s 1998 conviction, all of which
bear the file number 97-35208: a file-stamped complaint and
information dated December 10, 1997, charging Solomon with
DUI; a signed journal entry and order dated February 2, 1998,
showing that Solomon pled guilty to DUI and was sentenced
to probation; and a signed order of probation dated February 2,
1998. These latter two documents are not file stamped. Finally,
there is a file-stamped “Satisfaction of Judgment and Sentence”
dated September 24, 1998.
The district court stated that “[b]ecause [exhibit 1] does not
contain [a file] stamp, it is not possible to conclude that the
entry of judgment or final order did occur in [the February
1998] prosecution, even though there is another entry indicat-
ing that [Solomon] completed a probationary sentence.” The
district court based its decision on State v. Wilcox, supra, and
“the statute.” We presume the district court was referring to
§ 25-2729(3), which we discussed in State v. Wilcox, supra.
However, the district court’s reliance on State v. Wilcox,
supra, is misplaced, because Wilcox relied on § 25-2729(3)
(Cum. Supp. 2000), a version which became effective on
August 28, 1999—after Solomon’s 1998 conviction. The ver-
sion of the statute discussed in Wilcox provides in part:
The entry of a judgment or final order occurs when the
clerk of the court places the file stamp and date upon the
judgment or final order. For purposes of determining the
370 	16 NebRASkA APPeLLATe RePORTS

time for appeal, the date stamped on the judgment or final
order shall be the date of entry.
§ 25-2729(3) (Cum. Supp. 2000). That statute’s counterpart, Neb.
Rev. Stat. § 25-1301 (Cum. Supp. 2000), also did not become
effective until August 28, 1999. That version of § 25-1301 pro-
vides in part:
(2) Rendition of a judgment is the act of the court, or a
judge thereof, in making and signing a written notation of
the relief granted or denied in an action.
(3) The entry of a judgment, decree, or final order
occurs when the clerk of the court places the file stamp
and date upon the judgment, decree, or final order. For
purposes of determining the time for appeal, the date
stamped on the judgment, decree, or final order shall be
the date of entry.
[2,3] Solomon’s 1998 conviction occurred prior to August
28, 1999. Therefore, we look to the versions of the statutes that
were in effect at the time of Solomon’s 1998 conviction. In
1998, § 25-2729(3) (Reissue 1995) provided:
The time of rendition of a judgment or making of a final
order is the time at which the action of the judge in
announcing the judgment or final order is noted on the
trial docket or, if the action is not noted on the trial docket,
the time at which the journal entry of the action is signed
by the judge and filed.
And § 25-1301 (Reissue 1995) provided in part:
(2) Rendition of a judgment is the act of the court, or a
judge thereof, in pronouncing judgment, accompanied by
the making of a notation on the trial docket, or one made
at the direction of the court or judge thereof, of the relief
granted or denied in an action.
(3) entry of a judgment is the act of the clerk of the
court in spreading the proceedings had and the relief
granted or denied on the journal of the court.
Thus, at the time of Solomon’s conviction in 1998, neither
§ 25-2729 nor § 25-1301 specifically required a file stamp for
entry of judgment. Our record contains a signed journal entry
and order dated February 2, 1998, showing that Solomon pled
guilty to DUI and was sentenced to probation. A journal entry
STATe v. SOLOMON 	371
Cite as 16 Neb. App. 368

signed by the judge and filed is all that § 25-2729(3) required
for a final order in 1998. And exhibit 1, containing the plead-
ings and orders from the 1998 conviction, was a certified
copy of “the original record on file in the Douglas County
Court.” Thus, the February 2, 1998, journal entry was signed
by a judge and filed. because the 1998 conviction complies
with § 25-2729, it was valid for enhancement purposes. As a
result, Solomon had three prior convictions, and the June 27,
2006, charge should have resulted in a conviction for DUI,
fourth offense.
In his brief, Solomon argues that even if the district court
erred in finding that Solomon’s 1998 conviction is invalid for
enhancement purposes, the State is collaterally estopped from
using the conviction for enhancement. We disagree.
Collateral estoppel may be applied where an identical issue
was decided in a prior action, there was a judgment on the
merits which was final, the party against whom the doctrine
is to be applied is a party or is in privity with a party to the
prior action, and there was an opportunity to fully and fairly
litigate the issue in the prior litigation. State v. Gerdes, 233
Neb. 528, 446 N.W.2d 224 (1989). However, the record before
us is insufficient to show that the identical issue was decided
in a prior action or even that there was an opportunity to fully
and fairly litigate the issue in the prior litigation. For instance,
we do not know if in the 2004 case, a “second offense” original
charge was dropped in exchange for a guilty plea to DUI, first
offense. And for the 2005 case, our record shows only that
(1) the information charging Solomon with DUI, third offense,
alleged prior convictions in 1998 and 2004, and (2) at trial, the
court received two out of three exhibits offered. However, the
record is not clear as to the content of the exhibits offered and
received in the 2005 case. Thus, we cannot say with certainty
that Solomon’s 1998 conviction was not used to enhance his
2005 conviction. Given these shortcomings in the evidentiary
record, Solomon has not established the prerequisites for a col-
lateral estoppel argument to prevent use of the 1998 conviction
in his prosecution.
372 	16 NebRASkA APPeLLATe RePORTS

CONCLUSION
For the reasons stated above, we find that Solomon’s 1998
conviction is valid for enhancement purposes. As a result,
Solomon had three prior convictions, and the June 27, 2006,
charge should have resulted in a conviction for DUI, fourth
offense. Therefore, we vacate the sentence and remand this
cause to the district court for resentencing of Solomon for DUI,
fourth offense. See State v. Nelson, 262 Neb. 896, 636 N.W.2d
620 (2001) (holding that state and federal double jeopardy
provisions do not prohibit habitual criminal enhancement on
remand from appellate court).
S eNteNce vAcAted , ANd cAUSe
remANded for reSeNteNciNg .
STATe v. SOLOMON 	373
Cite as 16 Neb. App. 368