State v. Harris

case suffers economic hardship while the litigation process
runs its course is not unusual.
Therefore, for these reasons, we are compelled to find that
the trial court abused its discretion in certifying the summary
judgment in Vasquez’ favor for immediate appeal. This case
has most, if not all, of the contraindications for immediate
appeal detailed in Cerny, remembering that the policy behind
§ 25-1315(1) was the avoidance of piecemeal appellate review
in routine cases, not the facilitation thereof.
CONCLUSION
We, therefore, find that we do not have jurisdiction to hear
this appeal. Thus, we do not address the merits of the sum-
mary judgment, and we remand the cause to the district court
for trial as to the remaining defendant, Girton, after which,
if there is an appeal, we will then have jurisdiction to review
the summary judgment entered as to Vasquez, if appropri-
ately raised.
A ppeAl dismissed.
stAte of NebrAskA, Appellee , v.
lArry d. HArris , AppellANt.
765 N.W.2d 673
Filed April 14, 2009. 	No. A-08-240.
1. Criminal Law: Restitution: Sentences. Restitution cannot be ordered pursuant
to Neb. Rev. Stat. § 28-427 (Reissue 2008) for drug purchases made subsequent
to the sale for which the defendant was convicted because they could not have
been part of the investigation leading to conviction, and the State forgoes its right
to claim restitution of reasonable costs in connection with sales for which the
State did not seek to convict the defendant.
Appeal from the District Court for Lancaster County: Jodi
NelsoN, Judge. Affirmed as modified.
Dennis R. Keefe, Lancaster County Public Defender, and
Shawn Elliott for appellant.
STATE v. hARRIS 	513
Cite as 17 Neb. App. 513
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
irwiN, moore, and CAssel, Judges.
irwiN, Judge.
I. INTRODUCTION
Larry D. harris appeals his sentences on two counts of
delivery of a controlled substance and appeals a restitution
order imposed by the district court for Lancaster County,
Nebraska, related to the two convictions. We find that the dis-
trict court abused its discretion in imposing a restitution order
exceeding that allowed by Neb. Rev. Stat. § 28-427 (Reissue
2008), and we modify the restitution order accordingly. We
find no abuse of discretion in the sentence imposed. We affirm
as modified.
II. BACKGROUND
On July 26, 2007, harris was charged by information with
three counts of delivery of a controlled substance. In the infor-
mation, the State alleged that the three incidents forming the
basis of the charges occurred on three separate dates: February
9, February 17, and March 3, 2007.
On December 13, 2007, harris pled no contest to the first
two counts charged in the information and the State dismissed
the third count, pursuant to plea negotiations. The State pre-
sented a factual basis for the pleas, including asserting that on
February 9 and 17, the State, through an undercover officer,
had provided harris with $50 and that harris had purchased
drugs with the money; according to the State, harris returned
$10 on February 17 because he was able to purchase only $40
worth of drugs. After hearing the factual basis as presented by
the State, harris again iterated his desire to plead no contest
to both counts. The court accepted the pleas and found harris
guilty of two counts of delivery of a controlled substance.
On February 19, 2008, harris appeared in court for sen-
tencing. A presentence investigation had been completed,
and harris had an opportunity to review the contents of the
presentence investigation report. The court inquired whether
harris had any additions or corrections to the presentence
514 	17 NEBRASKA APPELLATE REPORTS

investigation report, and harris requested the addition of two
letters and informed the court that he was also on the waiting
list for a rehabilitation center. harris requested and was given
additional time to review the presentence investigation report
with his counsel, after which he indicated to the court that he
did not have any other additions or corrections to advise the
court about.
harris’ counsel and the State’s counsel both argued to the
court concerning the appropriate sentence to be imposed.
harris was also given an opportunity to speak to the court. At
the conclusion of the State’s argument, counsel for the State
indicated that “the State’s asking for restitution to be ordered
in the amount of $140.” No objection appears in the record to
this statement by counsel for the State.
The court then commented on harris’ prior record, the
facts of the instant convictions, and harris’ failure to take
advantage of an opportunity to participate in drug court.
When the court commented on harris’ failure to participate in
drug court, harris interrupted and asked to be heard, and the
court declined to give harris an opportunity to speak at that
time. The court then continued to comment and ultimately
pronounced consecutive sentences of 1 to 5 years’ imprison-
ment for each conviction and ordered harris to pay court
costs and restitution of $140 “for the drug money.” The court
then specifically asked both the State and harris if there was
“[a]nything further,” to which harris’ counsel responded, “Uh,
no.” This appeal followed.
III. ASSIGNMENTS OF ERROR
harris has assigned two errors on appeal. First, harris
asserts that the district court erred in ordering him to pay res-
titution. Second, harris asserts that the court imposed exces-
sive sentences.
IV. ANALYSIS
1. restitutioN
harris first asserts that the district court erred in ordering
him to pay restitution of $140. harris argues that the State
failed to provide notice that it was seeking restitution and that
STATE v. hARRIS 	515
Cite as 17 Neb. App. 513

the court erred in failing to hold a hearing or receive proof of
the amount sought for restitution. Although we find that harris
failed to properly challenge the notice or need for proof of the
amount expended by the State for drug money and investiga-
tion in this case, we do find that the court abused its discretion
in ordering a greater amount of restitution than authorized by
the applicable statute, § 28-427.
Section 28-427 provides, in relevant part:
If any person is convicted for violation of the Uniform
Controlled Substances Act, in addition to any penalty
imposed by the court, the court may order that such per-
son make restitution to any law enforcement agency for
reasonable expenditures made in the purchase of any con-
trolled substances from such person or his or her agent as
part of the investigation leading to such conviction.
[1] In State v. Holmes, 221 Neb. 629, 379 N.W.2d 765
(1986), the Nebraska Supreme Court held that restitution
ordered pursuant to § 28-427 was in the nature of a civil
or administrative penalty, not a criminal penalty imposed as
punishment for the crime. In State v. Rios, 237 Neb. 232, 465
N.W.2d 611 (1991), the Supreme Court held that restitution
could not be ordered pursuant to § 28-427 for drug purchases
made subsequent to the sale for which the defendant was con-
victed because they could not have been part of the investiga-
tion leading to conviction and that the State forgoes its right
to claim restitution of reasonable costs in connection with
sales for which the State did not seek to convict the defend-
ant. See, also, State v. Thomas, 6 Neb. App. 510, 574 N.W.2d
542 (1998).
In the present case, as detailed above in the factual back-
ground portion of this opinion, the State indicated as part of
the factual basis for the pleas that harris was provided with a
total of $100 for the two drug buys that led to these convictions
and that he returned $10 of that money. harris did not object
to any portion of the factual basis. Further, at sentencing, the
State indicated that it was seeking restitution and harris did
not object, despite having an opportunity at the conclusion
of the sentencing hearing to raise any objections he might
have had. Finally, the presentence investigation report provided
516 	17 NEBRASKA APPELLATE REPORTS

further information, in the form of police reports, indicating
that harris was provided $100 for the two drug buys that led
to these convictions and that he returned $10 of that money.
Despite more than one opportunity to do so, harris did not
raise any objection, challenge, or correction to this information
in the presentence investigation report.
We conclude that, with respect to the $90 of the State’s
money that was used for the two drug buys that led to these
convictions, harris failed to properly raise any objection or
challenge to the notice or form of proof presented by the State
to support the amount sought. We find no need to resolve the
underlying issue that harris raises concerning whether, if a
request for restitution is properly challenged at the trial court
level, sufficient notice and an appropriate hearing are required.
Resolution of that issue is unnecessary because harris did not
properly object or otherwise challenge the request below and
the record presented to us is comparable to the stipulation con-
cerning the amount of expenditure for which restitution was
requested in State v. Holmes, supra.
We do find that the district court abused its discretion, how-
ever, in ordering restitution of the $50 allegedly spent for the
drug buy that formed the basis of the third count with which
harris was charged. A review of the information indicates that
the third count, which the State dismissed as part of the plea
negotiation, occurred subsequent to the two counts upon which
harris was convicted. Pursuant to State v. Rios, supra, the State
is not entitled to restitution under § 28-427 for expenditures
subsequent to the drug buys forming the basis for the actual
convictions. As such, we modify the district court’s restitution
order to direct that harris be ordered to pay restitution in the
amount of $90, rather than $140. The restitution order is other-
wise affirmed.
2. exCessive seNteNCes
harris also asserts that the sentences imposed by the dis-
trict court were excessive. harris does not assert that the sen-
tences imposed exceeded the statutory limits. Rather, harris
argues that the court should have been more lenient, despite
his criminal history, prior struggles with drug and alcohol
STATE v. hARRIS 	517
Cite as 17 Neb. App. 513

issues, and failure to follow through with an opportunity to
enroll in drug court. In State v. Rios, 237 Neb. 232, 234,
465 N.W.2d 611, 613 (1991), the Nebraska Supreme Court
repeated “yet again the axiom that a sentence within the statu-
tory limits will not be disturbed upon appeal absent an abuse
of discretion.” The record presented here does not reveal an
abuse of discretion, and as stated in Rios, 237 Neb. at 235,
465 N.W.2d at 614:
While it is true that, as he laments, [the appellant] is in
part a victim of his own addiction, the fact remains that
he stands convicted of spreading his affliction for profit.
The nature of the crime is such that it cannot be said the
sentence imposed constitutes an abuse of discretion.
This assignment of error is meritless.
V. CONCLUSION
We modify the restitution order to reflect that harris is
ordered to pay restitution in the amount of $90, rather than
$140. We affirm the remainder of the restitution order, and we
affirm the sentences imposed.
A ffirmed As modified.
mArtiN l. C olemAN, AppellANt, v.
JoNi k. kAHler , Appellee .
766 N.W.2d 142
Filed April 14, 2009. 	No. A-08-333.
1. Declaratory Judgments. An action for declaratory judgment is sui generis;
whether such action is to be treated as one at law or one in equity is to be deter-
mined by the nature of the dispute.
2. Actions: Paternity: Child Support: Equity. While a paternity action is one at
law, the award of child support in such an action is equitable in nature.
3. Paternity: Appeal and Error. In a filiation proceeding, questions concerning
child custody determinations are reviewed on appeal de novo on the record to
determine whether there has been an abuse of discretion by the trial court, whose
judgment will be upheld in the absence of an abuse of discretion. In such de novo
review, when the evidence is in conflict, the appellate court considers, and may
give weight to, the fact that the trial court heard and observed the witnesses and
accepted one version of the facts rather than another.
518 	17 NEBRASKA APPELLATE REPORTS