In re Interest of Rebecca B.

in this case was when they leased and properly recorded the
interests to Gemini, more than 25 years before Ricks filed her
complaint to terminate and extinguish those interests. The dis-
trict court did not err in granting Ricks the relief she requested.
The district court’s judgment is affirmed.
A ffirmed.
in Re inTeResT of Rebecca b. 	137
cite as 280 neb. 137
in re interest of rebeccA b.,
A child under 18 yeArs of Age .
stAte of nebrAskA, AppellAnt,
v. rebeccA b., Appellee .
783 n.W.2d 783
filed June 25, 2010. 	no. s-09-1041.
1. Jurisdiction: Appeal and Error. an appellate court determines jurisdictional
issues not involving factual disputes as a matter of law, which requires the appel-
late court to reach independent conclusions.
2. ____: ____. before reaching the legal issues presented for review, it is the duty
of an appellate court to settle jurisdictional issues.
3. Double Jeopardy. The Double Jeopardy clauses of both the federal and the
nebraska constitutions protect against three distinct abuses: (1) a second pros-
ecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense.
4. Double Jeopardy: Probation and Parole. The Double Jeopardy clause gener-
ally is not violated by a reconsideration or revocation of probation.
5. Criminal Law: Probation and Parole. a motion to revoke probation is not a
criminal proceeding.
6. Probation and Parole: Juvenile Courts. a probation revocation hearing is
considered a continuation of the original prosecution for which probation was
imposed—in which the purpose is to determine whether a defendant or a juvenile
has breached a condition of his existing probation, not to convict or adjudicate
that individual of a new offense.
7. ____: ____. a probation revocation hearing usually involves a limited inquiry by
the trial judge, focusing on whether the defendant or juvenile has been convicted
or adjudicated for another offense or failed to comply with a specific condition
of probation.
8. ____: ____. a probation revocation hearing is not part of a criminal prosecution
or adjudication and therefore does not give rise to the full panoply of rights that
are due a defendant at a trial or a juvenile in an adjudication proceeding.
9. Criminal Law: Probation and Parole: Sentences. Violation of probation is not
itself a crime or offense; the statute provides a mechanism whereby the previous
probation is revoked and the court may impose a new sentence for the offense for
which the offender was originally convicted or adjudicated.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

10. Double Jeopardy: Probation and Parole. any punishment resulting from revo-
cation of an individual’s probation is punishment that relates to the person’s
original offense; therefore, an individual’s prosecution for the same conduct in a
different proceeding does not violate double jeopardy principles.
11. ____: ____. Double jeopardy is not implicated by probation revocation
proceedings.
appeal from the county court for Madison county: donnA
f. tAylor, Judge. exception dismissed.
Joseph M. smith, Madison county attorney, and Gail e.
collins for appellant.
Melissa a. Wentling, Madison county Public Defender, and
sharon e. Joseph for appellee.
Wright, connolly, gerrArd, stephAn, mccormAck , and
miller-lermAn, JJ.
gerrArd, J.
Rebecca b. was adjudicated under the nebraska Juvenile
code1 and placed on probation by the county court for Madison
county, sitting as a juvenile court, and ordered to complete
a court-supervised juvenile drug treatment program. after
Rebecca failed two chemical tests, the court ordered Rebecca
to serve two periods of detention at a detention center. neither
Rebecca nor the state objected to or appealed from the drug
court orders, and Rebecca served the detentions. Then, the
state filed a motion to revoke Rebecca’s probation based on the
same test results for which she had been detained. The juvenile
court dismissed the motion to revoke probation, and the state
appealed to the nebraska court of appeals rather than the dis-
trict court.
The primary issue presented here is jurisdictional. ordinarily,
any final order entered by a juvenile court may be appealed to
the court of appeals in the same manner as an appeal from
the district court.2 but when a county attorney files an appeal
“in any case determining delinquency issues in which the
juvenile has been placed legally in jeopardy,” the appeal must
1 see neb. Rev. stat. §§ 43-245 to 43-2,129 (Reissue 2008 & supp. 2009).
2 § 43-2,106.01(1).
138 	280 nebRaska RePoRTs

be taken by exception proceedings to the district court pursu-
ant to neb. Rev. stat. §§ 29-2317 to 29-2319 (Reissue 2008).3
Therefore, we consider whether the revocation proceedings
constitute a situation where the juvenile has been placed legally
in jeopardy.
backGRoUnD
on January 29, 2009, the Madison county court, sitting as
a juvenile court, adjudicated Rebecca to be a juvenile within
§ 43-247(1) and (3)(b). following a dispositional hearing
on March 23, the juvenile court placed Rebecca on super-
vised probation for a period of 1 year. as a condition of her
probation, Rebecca was ordered to attend and successfully
complete the “northeast nebraska Juvenile Treatment pro-
gram,” a court-supervised program also known as the juvenile
drug treatment court. The juvenile drug treatment court is an
approved drug court program created pursuant to neb. ct. R.
§ 6-1201 et seq., and we will refer to it as the “drug court”
in order to distinguish between the parallel proceedings that
took place.
on May 5, 2009, the drug court conducted a hearing con-
cerning allegations that Rebecca had used marijuana. The
drug court found that Rebecca had failed a drug test and, as
a “sanction,” ordered her incarcerated at a juvenile detention
center (JDc) for 2 days. on May 8, Rebecca reported to the
JDc and served her 2-day detention. neither Rebecca nor the
state objected to or appealed the drug court order. on May 26,
the drug court conducted another hearing concerning allega-
tions that Rebecca had used alcohol. The drug court found
that Rebecca had failed a drug and alcohol test. as a sanction,
the drug court ordered Rebecca detained at the JDc for 1 day.
Rebecca reported to the JDc on May 29 and served her deten-
tion as ordered. again, neither Rebecca nor the state objected
to or appealed the drug court order; thus, we do not opine on
the appropriateness of the detention orders.4
3 § 43-2,106.01(2)(d).
4 but see In re Interest of Dakota M., 279 neb. 802, 781 n.W.2d 612
(2010).
in Re inTeResT of Rebecca b. 	139
cite as 280 neb. 137

The state also filed a motion to revoke probation, alleging
that Rebecca violated her probation by using marijuana on
april 21, 2009, and alcohol between May 1 and 12. Rebecca
moved for dismissal of the state’s amended motion to revoke
probation or, in the alternative, an absolute discharge of the
underlying case. after a hearing, the juvenile court dismissed
the motion for revocation of probation and overruled the
motion for absolute discharge. in its order, the court found
that Rebecca’s “detention(s) have been served as sanctions
for the same violations the state alleges in its Motion to
Revoke Probation.”
The state appealed to the court of appeals. We moved the
appeal to our docket pursuant to our statutory authority to regu-
late the caseloads of the appellate courts of this state.5
assiGnMenT of eRRoR
The state assigns that the juvenile court erred in concluding
that the motion to revoke probation should be dismissed.
sTanDaRD of ReVieW
[1] an appellate court determines jurisdictional issues not
involving factual disputes as a matter of law, which requires the
appellate court to reach independent conclusions.6
analysis
The state argues that the juvenile court lacked jurisdiction to
sanction Rebecca in the drug court proceedings7; therefore, the
state argues that because the earlier sanctions were unlawfully
imposed, the juvenile court erred in relying on them in refus-
ing to sanction Rebecca in the probation revocation proceed-
ing. Rebecca argues, on the other hand, that she actually was
deprived of her liberty and that doing so again would violate
the Double Jeopardy clause.
[2] but before reaching the legal issues presented for review,
it is the duty of an appellate court to settle jurisdictional
5 neb. Rev. stat. § 24-1106(3) (Reissue 2008).
6 In re Interest of Sean H., 271 neb. 395, 711 n.W.2d 879 (2006).
7 see In re Interest of Dakota M., supra note 4.
140 	280 nebRaska RePoRTs

issues.8 at issue in this case is § 43-2,106.01, which gov-
erns appellate jurisdiction for juvenile courts.9 We note that
§ 43-2,106.01 has been amended effective July 15, 2010,10 but
the amendment does not affect our analysis in this opinion.
section 43-2,106.01(1) provides that a final order or judg-
ment “entered by a juvenile court may be appealed to the court
of appeals in the same manner as an appeal from district court
to the court of appeals.” and § 43-2,106.01(2) provides that
an appeal may be taken by a county attorney, “except that in
any case determining delinquency issues in which the juvenile
has been placed legally in jeopardy, an appeal of such issues
may only be taken by exception proceedings pursuant to sec-
tions 29-2317 to 29-2319.”
as is clear from § 43-2,106.01(1), most cases arising under
that statute are governed by neb. Rev. stat. § 25-1912 (Reissue
2008), which sets forth the requirements for appealing district
court decisions.11 but the plain language of § 43-2,106.01(2)(d)
carves out an exception for delinquency cases in which jeop-
ardy has attached. in such cases, the county attorney is limited
to taking exception pursuant to the procedures of §§ 29-2317 to
29-2319. sections 29-2317 to 29-2319 outline exception pro-
ceedings, which allow prosecuting attorneys to “take exception
to any ruling or decision of the county court . . . by presenting
to the court a notice of intent to take an appeal to the district
court.”12 section 29-2317 requires exception to a county court
judgment to be taken to the district court sitting as an appellate
court. specifically, the prosecuting attorney is to file a notice
of appeal in the county court, then file the notice in the district
court within 30 days.
Here, after the Madison county court, sitting as a juvenile
court, filed its order dismissing the motion to revoke probation,
8 Myers v. Nebraska Invest. Council, 272 neb. 669, 724 n.W.2d 776
(2006).
9 see In re Interest of Jedidiah P., 267 neb. 258, 673 n.W.2d 553 (2004).
10 see, 2010 neb. laws, l.b. 800, § 25; neb. const. art. iii, § 27.
11 In re Interest of Sean H., supra note 6.
12 § 29-2317(1).
in Re inTeResT of Rebecca b. 	141
cite as 280 neb. 137

the state filed notice of its intent to appeal the juvenile court’s
order. The state chose to file the appeal, however, not with the
district court, but with the court of appeals, and we then moved
the appeal to our docket. Rebecca argues that we lack jurisdic-
tion over this appeal, because pursuant to § 43-2,106.01(2)(d),
the state should have appealed the juvenile court judgment
to the district court sitting as an appellate court. specifically,
Rebecca contends that the state was required to appeal to the
district court because she was placed “legally in jeopardy,” as
that phrase is used in § 43-2,106.01(2)(d).
[3] in order to determine whether Rebecca was placed
legally in jeopardy in this context, we begin by setting forth
the 	basic 	propositions 	of 	law 	regarding 	double 	jeopardy.
The Double Jeopardy clauses of both the federal and the
nebraska constitutions protect an individual against a second
prosecution for the same offense after an acquittal or con-
viction.13 specifically, the Double Jeopardy clauses of both
the federal and the nebraska constitutions protect against
three distinct abuses: (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the
same offense.14
[4-6] but, the Double Jeopardy clause generally is not
violated by a reconsideration or revocation of probation.15
and a motion to revoke probation is not a criminal proceed-
ing.16 a probation revocation hearing is considered a con-
tinuation of the original prosecution for which probation was
imposed—in which the purpose is to determine whether a
defendant or a juvenile has breached a condition of his exist-
ing probation, not to convict or adjudicate that individual of
a new offense.17
13 see State v. Williams, 278 neb. 841, 774 n.W.2d 384 (2009).
14 State v. Huff, 279 neb. 68, 776 n.W.2d 498 (2009).
15 United States v. Clark, 741 f.2d 699 (5th cir. 1984).
16 State v. Schreiner, 276 neb. 393, 754 n.W.2d 742 (2008).
17 see State v. Bourdeau, 448 a.2d 1247 (R.i. 1982).
142 	280 nebRaska RePoRTs

[7-9] We have stated that a probation revocation hearing
usually involves a limited inquiry by the trial judge, focus-
ing on whether the defendant or juvenile has been convicted
or adjudicated for another offense or failed to comply with a
specific condition of probation.18 it is well established that a
probation revocation hearing is not part of a criminal pros-
ecution or adjudication and therefore does not give rise to
the full panoply of rights that are due a defendant at a trial
or a juvenile in an adjudication proceeding.19 furthermore,
violation of probation is not itself a crime or offense; the
statute provides a mechanism whereby the previous proba-
tion is revoked and the court may impose a new sentence for
the offense for which the offender was originally convicted
or adjudicated.20
[10,11] because probation revocation proceedings are not
directed at attempting to punish the activity that was alleged to
violate the terms of probation, but merely reassess whether the
probationer may still be considered a risk, the federal courts
have routinely concluded that double jeopardy is not impli-
cated in adult probation revocation proceedings.21 state courts
in other jurisdictions have similarly concluded, with respect to
adult offenders, that any punishment resulting from revocation
of a defendant’s probation is punishment that relates to the
person’s original offense; therefore, an individual’s prosecution
for the same conduct in a different proceeding does not violate
double jeopardy principles.22 and those principles also apply
18 see State v. Hernandez, 273 neb. 456, 730 n.W.2d 96 (2007).
19 see Morrissey v. Brewer, 408 U.s. 471, 92 s. ct. 2593, 33 l. ed. 2d 484
(1972).
20 see, neb. Rev. stat. § 29-2268(1) (Reissue 2008); State v. Wragge, 246
neb. 864, 524 n.W.2d 54 (1994).
21 see, Clark, supra note 15; United States v. Miller, 797 f.2d 336 (6th cir.
1986); United States v. Whitney, 649 f.2d 296 (5th cir. 1981).
22 see, Ashba v. State, 580 n.e.2d 244 (ind. 1991); State v. Chase, 588 a.2d
120 (R.i. 1991), overruled on other grounds, State v. Gautier, 871 a.2d
347 (R.i. 2005); State v. Lange, 237 Mont. 486, 775 P.2d 213 (1989); State
v. Holcomb, 178 W. Va. 455, 360 s.e.2d 232 (1987).
in Re inTeResT of Rebecca b. 	143
cite as 280 neb. 137

to revocation of probation in juvenile proceedings.23 simply
stated, it is black letter law that double jeopardy is not impli-
cated by probation revocation proceedings.24
in other words, double jeopardy is not implicated in proba-
tion revocation proceedings because the proceedings are a con-
tinuation of the original underlying conviction or adjudication.
The jeopardy that is attached is the jeopardy that attached in
the underlying prosecution or adjudication. obviously, those
principles would have implications for the merits of Rebecca’s
double jeopardy argument, potentially in another proceeding.
but in this case, their jurisdictional implications come first.
application of § 43-2,106.01(2)(d) turns on whether the juve-
nile has been placed in jeopardy by the juvenile court, not
by whether the Double Jeopardy clause bars further action.25
and here, Rebecca was placed legally in jeopardy within
the meaning of § 43-2,106.01(2)(d) when she was originally
adjudicated on January 29, 2009, when the court accepted her
guilty plea.26
Rebecca’s revocation hearing was a continuation of her
original adjudication where jeopardy attached, and therefore,
Rebecca was and continued to be legally in jeopardy. and
because Rebecca was placed legally in jeopardy within the
meaning of § 43-2,106.01(2)(d), the state was required to take
an exception proceeding to the district court according to the
procedures outlined in § 29-2317. it did not do so, and there-
fore, we lack jurisdiction over the merits of its appeal.
conclUsion
The plain language of § 43-2,106.01(2)(d) requires the
state to file its exception proceeding according to §§ 29-2317
to 29-2319. because the state failed to comply with the
23 see, Matter of Lucio F.T., 119 n.M. 76, 888 P.2d 958 (n.M. app. 1994);
Porter v. State, 43 ark. app. 110, 861 s.W.2d 122 (1993); In the Interest
of B. N. D., 185 Ga. app. 906, 366 s.e.2d 187 (1988).
24 see, Gautier, supra note 22; Hardy v. U.S., 578 a.2d 178 (D.c. 1990).
25 see, State v. Hense, 276 neb. 313, 753 n.W.2d 832 (2008); State v.
Vasquez, 271 neb. 906, 716 n.W.2d 443 (2006).
26 see State v. Figeroa, 278 neb. 98, 767 n.W.2d 775 (2009).
144 	280 nebRaska RePoRTs

statutory procedures outlined in § 29-2317, as incorporated
by § 43-2,106.01, we lack jurisdiction to consider the state’s
exception. because this case is not properly before this court,
we dismiss the exception proceeding for lack of jurisdiction.
exception dismissed.
heAvicAn, c.J., not participating.
in Re inTeResT of Rebecca b. 	145
cite as 280 neb. 137