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09/29/2017 08:11 AM CDT




                                                       - 444 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                                                  DUGAN v. STATE
                                                 Cite as 297 Neb. 444




                                    Michael M arvin Dugan, appellant, v.
                                    State of Nebraska et al., appellees.
                                                   ___ N.W.2d ___

                                        Filed August 11, 2017.   No. S-16-421.

                1.	 Actions: Habeas Corpus: Collateral Attack: Appeal and Error. As
                    only a void judgment is subject to attack in a habeas corpus action, an
                    appellate court is limited in such a case to reviewing a question of law,
                    namely, Is the judgment in question void?
                2.	 Judgments: Appeal and Error. To the extent questions of law are
                    involved, an appellate court is obligated to reach conclusions indepen-
                    dent of the decisions reached by the court below.
                3.	 Habeas Corpus: Judgments: Convictions: Collateral Attack. Habeas
                    corpus is a proper means of collaterally attacking the validity of an
                    allegedly void judgment of conviction.
                4.	 Judgments: Jurisdiction: Final Orders: Appeal and Error. An appeal
                    is not perfected and an appellate court acquires no jurisdiction unless the
                    appellant has satisfied the statutory requirements for appellate jurisdic-
                    tion by appealing from a final order or a judgment.
                5.	 Final Orders: Appeal and Error. An order is final for purposes of
                    appeal under Neb. Rev. Stat. § 25-1902 (Reissue 2016) if it affects a
                    substantial right and (1) determines the action and prevents a judgment,
                    (2) is made during a special proceeding, or (3) is made on summary
                    application in an action after judgment is rendered.
                6.	 Criminal Law: Pretrial Procedure: Appeal and Error. Generally, for
                    a pretrial order in criminal cases to be immediately appealable, it must
                    involve a right not to be tried as opposed to a right not to be convicted.
                7.	 Final Orders: Pleadings. How a motion should be regarded for pur-
                    poses of determining whether its denial is a final order depends upon the
                    substance of the motion and not its title.
                8.	 Arrests: Extradition and Detainer: Trial. The unlawfulness of the
                    means of arrest or extradition from another state does not impair the
                    power of a court to try an accused.
                             - 445 -
          Nebraska Supreme Court A dvance Sheets
                  297 Nebraska R eports
                        DUGAN v. STATE
                       Cite as 297 Neb. 444

  Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.

  Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

  Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellees.

  Heavican, C.J., Wright, Miller-Lerman, Stacy, K elch, and
Funke, JJ.

  Wright, J.
                      NATURE OF CASE
   Trial proceeded while the defendant’s appeal from the
denial of his motion for absolute discharge was pending with
the Nebraska Court of Appeals. The motion was based on
the allegations that the defendant’s arrest warrant was defec-
tive and that his extradition was procedurally improper. After
the defendant was convicted and sentenced, the appeal from
the denial of the motion for absolute discharge was volun-
tarily dismissed. The conviction and sentence were affirmed
on direct appeal. In his action for habeas corpus relief, the
defendant now claims that the trial court lacked jurisdiction
to continue with his trial while his appeal from the denial of
the motion for absolute discharge was pending. He therefore
asserts that his conviction and sentence are void.

                       BACKGROUND
                     Underlying Charges
   Michael Marvin Dugan was arrested in Wyoming under
what the sheriff’s department believed to be a valid Nebraska
warrant, but the warrant was not issued until after Dugan
was taken into custody. Dugan waived extradition and was
returned to Nebraska. In July 2006, Dugan was charged in the
district court for Cheyenne County (the trial court) with one
count of theft by unlawful taking.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                DUGAN v. STATE
                               Cite as 297 Neb. 444

                    Excessive Bail A ppeal
   Dugan moved to reduce his bail pending trial, alleging it
was excessive. The motion was overruled. On May 25, 2007,
Dugan appealed the denial of his motion to reduce his bail to
the Court of Appeals.
   On June 21, 2007, the Court of Appeals dismissed the
appeal for lack of jurisdiction, explaining that under State v.
Kula,1 the order appealed from was not final. The mandate of
dismissal issued on July 27 and was filed with the trial court
on August 2.2

                    Federal H abeas Action
   On June 26, 2007, Dugan filed an application for a writ
of habeas corpus in the U.S. District Court for the District
of Nebraska. The application alleged that his arrest warrant
was defective and that he was extradited without proper pro-
cedure. Dugan further alleged that his bail was excessive and
that the trial court had erred in refusing to stay the criminal
proceedings pending his appeal of the allegedly excessive
bail. Dugan asked the federal district court to stay his trial
and determine the legality of his restraint, as well as to fix a
reasonable bail.

                A bsolute Discharge Motion
                        and A ppeal
   While the federal habeas action was still pending, Dugan
filed with the trial court a motion for absolute discharge
for violation of his constitutional rights. Dugan alleged
that his arrest warrant was defective and that his extradi-
tion was procedurally improper. The trial court denied the
motion, and on October 3, 2007, Dugan appealed to the Court
of Appeals.

 1	
      State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
 2	
      See State v. Dugan, 15 Neb. App. lxxxix (No. A-07-584, June 21, 2007).
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           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
                         DUGAN v. STATE
                        Cite as 297 Neb. 444

                        Trial Verdict
   Trial proceeded while Dugan’s federal habeas action and his
appeal to the Court of Appeals from the denial of his motion
for absolute discharge were pending. Dugan was found guilty
on October 5, 2007, and was sentenced as a habitual criminal
on December 14. He was committed to the Department of
Correctional Services on December 17.

                Voluntary Dismissal of A bsolute
                        Discharge A ppeal
   On January 10, 2008, Dugan filed a stipulation jointly with
the State to dismiss his appeal to the Court of Appeals of the
district court’s denial of his motion for absolute discharge, for
the reason that it was interlocutory. The mandate of dismissal
issued on January 16.

                         Direct A ppeal
   On direct appeal from his conviction and sentence, Dugan
presented 23 assignments of error. They included allegations
that he was illegally arrested and improperly extradited. The
Court of Appeals affirmed the conviction and sentence. With
regard to the arrest and extradition, the Court of Appeals
stated that considerations as to the method of obtaining juris-
diction over a criminal defendant were not relevant to the
power of a court to try an accused. We denied Dugan’s petition
for further review.

                      State H abeas Action
   After his direct appeal was unsuccessful, Dugan filed an
application in the district court for Lancaster County for a writ
of habeas corpus. Dugan alleged that his conviction and sen-
tence were void because his trial had occurred while the court
was divested of jurisdiction due to the pendency of his appeals
from the denial of his motion for discharge and from the denial
of his motion to reduce excessive bail.
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
                               DUGAN v. STATE
                              Cite as 297 Neb. 444

   The court dismissed with prejudice Dugan’s application for
a writ of habeas corpus relief. As to the court’s jurisdiction
during the pendency of the bail appeal, the court reasoned
that because the Court of Appeals never acquired jurisdic-
tion over the interlocutory appeal of the nonfinal order, the
trial court never lost jurisdiction. As to the court’s jurisdic-
tion during the pendency of the absolute discharge appeal,
the court similarly said that the arrest and extradition issues
presented in the absolute discharge motion did not affect a
substantial right. Therefore, the order was not final and the
interlocutory appeal therefrom did not deprive the trial court
of jurisdiction.
   Dugan appeals the dismissal of his habeas action.

                  ASSIGNMENTS OF ERROR
   Dugan assigns that the district court erred in denying
habeas corpus relief because (1) his sentence is void because
the trial court tried, convicted, and sentenced him during the
pendency of an appeal that divested the trial court of jurisdic-
tion and (2) the Court of Appeals erred in citing the wrongly
decided case State v. Kula and failed to properly exercise its
jurisdiction to hear Dugan’s appeal from the trial court’s order
denying his motion to reduce excessive bail.

                   STANDARD OF REVIEW
   [1] As only a void judgment is subject to attack in a habeas
corpus action, an appellate court is limited in such a case to
reviewing a question of law, namely, Is the judgment in ques-
tion void?3
   [2] To the extent questions of law are involved, an appel-
late court is obligated to reach conclusions independent of the
decisions reached by the court below.4

 3	
      Garza v. Kenney, 264 Neb. 146, 646 N.W.2d 579 (2002).
 4	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                DUGAN v. STATE
                               Cite as 297 Neb. 444

                          ANALYSIS
   Before we moved the case to our docket, the Court of
Appeals summarily rejected Dugan’s second assignment of
error, that he was entitled to habeas corpus relief because the
trial court was divested of jurisdiction during the pendency of
his appeal from the motion to reduce bail. We also summarily
reject Dugan’s second assignment of error. We next address
Dugan’s assignment of error that he was entitled to habeas
corpus relief because the trial court lacked jurisdiction during
the pendency of his appeal from the denial of his motion for
absolute discharge.
   [3] Habeas corpus is a proper means of collaterally attack-
ing the validity of an allegedly void judgment of conviction.5
Nebraska case law generally holds that once an appeal has
been perfected, the trial court is divested of its jurisdiction
to hear a case involving the same matter between the same
parties.6 And with the exception of limited acts of continuing
jurisdiction not applicable here, all proceedings in the district
court while a perfected appeal is pending are void for lack
of jurisdiction.7
   [4] But an appeal is not perfected and an appellate court
acquires no jurisdiction unless the appellant has satisfied the
statutory requirements for appellate jurisdiction by appeal-
ing from a final order or a judgment.8 In a criminal case, the

 5	
      See, Bradley v. Hopkins, 246 Neb. 646, 522 N.W.2d 394 (1994); Neb. Rev.
      Stat. § 29-2801 (Reissue 2008).
 6	
      In re Interest of Becka P. et al., 296 Neb. 365, 894 N.W.2d 247 (2017).
 7	
      See, State v. Rieger, 257 Neb. 826, 600 N.W.2d 831 (1999); State v.
      Moore, 186 Neb. 71, 180 N.W.2d 888 (1970); Jenkins v. Campbell, 76
      Neb. 138, 107 N.W. 221 (1906). Compare, e.g., Spady v. Spady, 284 Neb.
      885, 824 N.W.2d 366 (2012).
 8	
      See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                DUGAN v. STATE
                               Cite as 297 Neb. 444

j­udgment is the sentence.9 The question here is whether the
 trial court’s denial of Dugan’s motion for absolute discharge
 was a final order.
    [5] An order is final for purposes of appeal under Neb. Rev.
 Stat. § 25-1902 (Reissue 2016) if it affects a substantial right
 and (1) determines the action and prevents a judgment, (2) is
 made during a special proceeding, or (3) is made on summary
 application in an action after judgment is rendered.10
    Numerous factors determine when an order affects a sub-
 stantial right for purposes of appeal.11 Broadly, these factors
 relate to the importance of the right and the importance of the
 effect on the right by the order at issue.12 It is not enough that
 the right itself be substantial; the effect of the order on that
 right must also be substantial.13
    We have said that an order affects a substantial right if it
 affects the subject matter of the litigation, such as diminishing
 a claim or defense that was available to the appellant prior to
 the order from which he or she is appealing.14 We have also
 said that in order for the order to have a substantial effect on
 the substantial right, it is fundamental that the right is sig-
 nificantly undermined or irrevocably lost by postponing appel-
 late review.15

 9	
      State v. Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009). See, also, State v.
      Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).
10	
      Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d
      467 (2017).
11	
      In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
12	
      Id.
13	
      Id.
14	
      See State v. Bluett, 295 Neb. 369, 889 N.W.2d 83 (2016).
15	
      See id. See, also, e.g., In re Interest of Sandrino T., 295 Neb. 270, 888
      N.W.2d 371 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                 DUGAN v. STATE
                                Cite as 297 Neb. 444

   Though Dugan characterized his motion as a motion for
absolute discharge, motions for absolute discharge are made
on speedy trial grounds.16 Section Neb. Rev. Stat. § 29-1208
(Reissue 2008) mandates:
         If a defendant is not brought to trial before the run-
      ning of the time for trial as provided for in [the speedy
      trial act] . . . he or she shall be entitled to his or her
      absolute discharge from the offense charged and for
      any other offense required by law to be joined with
      that offense.
   We have held that to the extent Nebraska’s speedy trial
statutes17 confer a right to a speedy trial and authorize a spe-
cial application to obtain judicial enforcement of that right,
a ruling on a motion for absolute discharge based upon an
accused criminal’s nonfrivolous claim that his or her speedy
trial rights were violated is a ruling affecting a substan-
tial right made during a special proceeding and is therefore
final and appealable.18 We have reasoned that the ruling on

16	
      See, e.g., State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014); State
      v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013); State v. Williams, 277
      Neb. 133, 761 N.W.2d 514 (2009); State v. Feldhacker, 267 Neb. 145,
      672 N.W.2d 627 (2004); State v. Knudtson, 262 Neb. 917, 636 N.W.2d
      379 (2001); State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997); State
      v. Sumstine, 239 Neb. 707, 478 N.W.2d 240 (1991); State v. Alvarez, 189
      Neb. 281, 202 N.W.2d 604 (1972); State v. Johnson, 22 Neb. App. 747,
      860 N.W.2d 222 (2015); State v. Vela-Montes, 19 Neb. App. 378, 807
      N.W.2d 544 (2011); State v. Shipler, 17 Neb. App. 66, 758 N.W.2d 41
      (2008); State v. Vasquez, 16 Neb. App. 406, 744 N.W.2d 500 (2008); In re
      Interest of Britny S., 11 Neb. App. 704, 659 N.W.2d 831 (2003); State v.
      Castillo, 11 Neb. App. 622, 657 N.W.2d 650 (2003); State v. Washington,
      11 Neb. App. 598, 658 N.W.2d 302 (2003); State v. Hayes, 10 Neb. App.
      833, 639 N.W.2d 418 (2002); State v. Dailey, 10 Neb. App. 793, 639
      N.W.2d 141 (2002).
17	
      Neb. Rev. Stat. §§ 29-1201 to 29-1209 (Reissue 2008).
18	
      See, State v. Williams, supra note 16; State v. Jacques, 253 Neb. 247, 570
      N.W.2d 331 (1997); State v. Gibbs, supra note 16.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                 DUGAN v. STATE
                                Cite as 297 Neb. 444

a motion to discharge affects a substantial right, because
the rights conferred on an accused criminal by §§ 29-1207
and 29-1208 would be significantly undermined if appellate
review of nonfrivolous speedy trial claims were postponed
until after conviction and sentence. We have compared this to
the manner in which rights of an accused criminal would be
undermined if appellate review of the denial of a plea in bar
in double jeopardy claims were postponed until after convic-
tion and sentence.19
   [6] We have explained that both involve a right not to be
tried.20 This is in line with federal decisions that generally hold
in criminal cases that in order for a pretrial order to be imme-
diately appealable, it must involve a right not to be tried as
opposed to a right not to be convicted.21
   We have also noted that an interlocutory appeal based
on a claimed denial of statutory speedy trial rights involves
a relatively simple mathematical computation of whether
the 6-month speedy trial clock, as extended by statutorily
excludable periods, has expired prior to the commencement
of trial.22
   [7] Dugan’s motion for absolute discharge based on the
alleged unlawfulness of his arrest and extradition bears no
resemblance to a motion for absolute discharge based on the
statutory right to a speedy trial. How a motion should be
regarded for purposes of determining whether its denial is a
final order depends upon the substance of the motion and not
its title.23

19	
      Id.
20	
      See State v. Williams, supra note 16.
21	
      See, e.g., Flanagan v. United States, 465 U.S. 259, 104 S. Ct. 1051, 79 L.
      Ed. 2d 288 (1984); U.S. v. Saccoccia, 18 F.3d 795 (9th Cir. 1994).
22	
      See State v. Williams, supra note 16.
23	
      See State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                 DUGAN v. STATE
                                Cite as 297 Neb. 444

   In State v. Loyd,24 we held that the denial of the defendant’s
motion to quash based on a statute of limitations defense,
which the defendant had styled as a “‘motion to discharge,’”
was not a final order. We explained that the denial of that
motion did not diminish a defense previously available to him,
because he could continue to challenge through his not guilty
plea the sufficiency of the evidence to prove that the charges
were filed within the period specified by the applicable statute
of limitations.25
   [8] Similarly, we will not treat this motion as one for abso-
lute discharge simply because of its title. And, as the Court of
Appeals discussed in its opinion on direct appeal, the allega-
tions in Dugan’s motion could not legally support absolute
discharge. The unlawfulness of the means of arrest or extradi-
tion from another state does not impair the power of a court
to try an accused.26 The allegations of unlawful arrest and
extradition do not involve a right not to be tried.
   Rather, the illegality of an arrest gives rise only to “col-
lateral” rights and remedies in the underlying criminal action,
such as the exclusionary rule.27 Those collateral rights and
remedies are effectively vindicated on appeal from the judg-
ment.28 Other rights at issue in an allegedly unlawful arrest

24	
      Id. at 770, 696 N.W.2d at 868.
25	
      See State v. Loyd, supra note 23. See, also, State v. Nuss, 235 Neb. 107,
      454 N.W.2d 482 (1990).
26	
      See, State v. Tingle, 239 Neb. 558, 477 N.W.2d 544 (1991); State v. Smith,
      207 Neb. 263, 298 N.W.2d 162 (1980); State v. Knudsen, 201 Neb. 584,
      270 N.W.2d 926 (1978); State v. Costello, 199 Neb. 43, 256 N.W.2d 97
      (1977); Maddox v. Sigler, 181 Neb. 690, 150 N.W.2d 251 (1967); Jackson
      v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946). See, also, Pettibone v.
      Nichols, 203 U.S. 192, 27 S. Ct. 111, 51 L. Ed. 148 (1906); Mahon v.
      Justice, 127 U.S. 700, 8 S. Ct. 1204, 32 L. Ed. 283 (1888).
27	
      State v. Masat, 239 Neb. 849, 852, 479 N.W.2d 131, 133 (1992).
28	
      See cases cited supra note 26.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
                                DUGAN v. STATE
                               Cite as 297 Neb. 444

or extradition may be vindicated through a civil rights action
under 42 U.S.C. § 1983 (2012).29
   Simply put, the trial court’s ruling pertaining to the allega-
tions of unlawful arrest and extradition in Dugan’s motion
for absolute discharge did not affect the subject matter of the
underlying criminal litigation. As such, the district court’s
order did not affect a substantial right. The order, therefore,
was not final, and Dugan’s interlocutory appeal therefrom
did not deprive the trial court of jurisdiction to proceed with
Dugan’s trial, conviction, and sentencing.
   The district court correctly denied Dugan’s application for
a writ of habeas corpus relief. We find no merit to Dugan’s
contention that the underlying criminal judgment against him
was void. Because the trial court’s denial of his motion for
absolute discharge was not a final order, the trial court was
not divested of jurisdiction when Dugan filed this interlocu-
tory appeal.
                          CONCLUSION
   For the foregoing reasons, the judgment of the district court
is affirmed.
                                                   A ffirmed.
   Cassel, J., participating on briefs.

29	
      See, Annot., 45 A.L.R. Fed. 871 (1979); Annot., 1 A.L.R. Fed. 519 (1969).
