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12/16/2016 09:07 AM CST




                                                         - 369 -
                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                                  STATE v. BLUETT
                                                  Cite as 295 Neb. 369




                                        State of Nebraska, appellee, v.
                                        Charles D. Bluett, appellant.
                                                    ___ N.W.2d ___

                                        Filed December 16, 2016.   No. S-15-1168.

                1.	 Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
                    does not involve a factual dispute presents a question of law, which an
                    appellate court independently decides.
                2.	 Criminal Law: Courts: Juvenile Courts: Jurisdiction: Appeal and
                    Error. A trial court’s denial of a motion to transfer a pending criminal
                    proceeding to the juvenile court is reviewed for an abuse of discretion.
                3.	 Judgments: Words and Phrases. An abuse of discretion occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                4.	 Jurisdiction: Final Orders: Appeal and Error. For an appellate court
                    to acquire jurisdiction over an appeal, there must be either a final
                    judgment or a final order entered by the court from which the appeal
                    is taken.
                5.	 Jurisdiction: Appeal and Error. 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.
                6.	 Final Orders: Appeal and Error. The three types of final orders
                    which may be reviewed on appeal under the provisions of Neb. Rev.
                    Stat. § 25-1902 (Reissue 2016) are (1) an order which affects a sub-
                    stantial right in an action and which in effect determines the action and
                    prevents a judgment, (2) an order affecting a substantial right made
                    during a special proceeding, and (3) an order affecting a substantial
                    right made on summary application in an action after a judgment
                    is rendered.
                7.	 Words and Phrases. A substantial right as an essential legal right, not
                    merely a technical right.
                                     - 370 -
              Nebraska Supreme Court A dvance Sheets
                      295 Nebraska R eports
                              STATE v. BLUETT
                              Cite as 295 Neb. 369

 8.	 Final Orders: Appeal and Error. 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.
  9.	 ____: ____. Having a substantial effect on a substantial right depends
      most fundamentally on whether the right could otherwise effectively be
      vindicated through an appeal from the final judgment.

  Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Appeal dismissed.

  Thomas C. Riley, Douglas County Public Defender, and
Timothy F. Shanahan for appellant.

   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.

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

   Heavican, C.J.
                     INTRODUCTION
  Charles D. Bluett moved to transfer his case to juvenile
court. That motion was denied. Bluett appeals.

                      BACKGROUND
   Bluett was charged with robbery and use of a weapon to
commit a felony. Because Bluett was 15 years of age at the
time of the commission of the crimes charged, he moved to
transfer his case to the separate juvenile court of Douglas
County. That motion was denied. Bluett then filed this appeal.
We granted Bluett’s petition to bypass the Nebraska Court of
Appeals. Because Bluett appeals from a nonfinal order, we
dismiss his appeal.

                 ASSIGNMENT OF ERROR
  Bluett assigns that the district court erred in denying his
motion to transfer.
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. BLUETT
                              Cite as 295 Neb. 369

                   STANDARD OF REVIEW
   [1] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
independently decides.1
   [2,3] A trial court’s denial of a motion to transfer a pend-
ing criminal proceeding to the juvenile court is reviewed for
an abuse of discretion.2 An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence.3
                          ANALYSIS
   [4,5] For an appellate court to acquire jurisdiction over an
appeal, there must be either a final judgment or a final order
entered by the court from which the appeal is taken.4 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.5
   [6] The three types of final orders which may be reviewed
on appeal under the provisions of Neb. Rev. Stat. § 25-1902
(Reissue 2016) are (1) an order which affects a substantial
right in an action and which in effect determines the action and
prevents a judgment, (2) an order affecting a substantial right
made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action
after a judgment is rendered.6
   [7-9] In this case, we need not decide which of the above
categories, if any, this case fits under because we conclude

 1	
      See Purdie v. Nebraska Dept. of Corr. Servs., 292 Neb. 524, 872 N.W.2d
      895 (2016).
 2	
      State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).
 3	
      See State v. Jones, 293 Neb. 452, 878 N.W.2d 379 (2016).
 4	
      State v. Jackson, 291 Neb. 908, 870 N.W.2d 133 (2015). See, also, Neb.
      Rev. Stat. § 25-1911 (Reissue 2016).
 5	
      Id.
 6	
      State v. Meints, 291 Neb. 869, 869 N.W.2d 343 (2015).
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               Nebraska Supreme Court A dvance Sheets
                       295 Nebraska R eports
                              STATE v. BLUETT
                              Cite as 295 Neb. 369

that it does not affect a substantial right. A substantial right
is an essential legal right, not merely a technical right.7 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.8 But it is not enough that the right itself
be substantial.9 Having a substantial effect on a substantial
right depends most fundamentally on whether the right could
otherwise effectively be vindicated through an appeal from the
final judgment.10
   Bluett argues that he had a substantial right affected by
the district court’s denial of his motion to transfer. He argues
that the U.S. Supreme Court, in Miller v. Alabama,11 noted a
clear distinction between the culpability of adults as opposed
to minors and creates a substantial right for juveniles in
criminal proceedings. Bluett further argues that the deletion
of language in Neb. Rev. Stat. § 29-1816 (Reissue 2016) that
specifically noted that the denial of such a transfer motion
was not final lends support to the conclusion that this is a
substantial right.
   We turn first to the deletion of language in § 29-1816. We
addressed the import of the deletion of this language in In
re Interest of Tyrone K.12 In that opinion, we concluded that
the changes to the statute as a result of the passage of 2014
Neb. Laws, L.B. 464, did not determine the finality of an
order under § 29-1816, noting that “deleting a negative does
not automatically create a positive,” and, further, that the
Legislature is fully capable of authoring language that would

 7	
      State v. Jackson, supra note 4.
 8	
      Id.
 9	
      Id.
10	
      In re Adoption of Madysen S., 293 Neb. 653, 879 N.W.2d 34 (2016).
11	
      Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d. 407
      (2012).
12	
      In re Interest of Tyrone K., ante p. 193, ___ N.W.2d ___ (2016).
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              STATE v. BLUETT
                              Cite as 295 Neb. 369

create the right to an interlocutory appeal, but did not do so in
this case.13 As such, we conclude that in accordance with our
reasoning in In re Interest of Tyrone K., the deletion of the lan-
guage expressly stating that the denial of such a transfer was
not a final, appealable order does not lead to the conclusion
that this appeal is now final.
   Nor do we find Miller applicable here. Miller explicitly
noted that adults and children were constitutionally “different
from adults for purposes of sentencing.”14 This case deals not
with sentencing, but with a transfer from adult court to a juve-
nile court. Moreover, we are concerned here only with deter-
mining whether the order denying such a transfer is appealable
and are not yet concerned with whether that decision was cor-
rect on its merits.
   We find that no substantial right is affected by the denial
of a motion to transfer. Relevant to this conclusion is this
court’s decision in State v. Meese.15 In Meese, we concluded
that the “right to be tried as a juvenile is not constitutionally
guaranteed.”16 Moreover, we have often reviewed cases where
the denial of a motion to transfer in an appeal is filed after
final judgment. While those appeals, of course, predated the
change in the language of § 29-1816, the fact remains that
those appeals show the issue can be effectively reviewed after
final judgment.
   The district court’s denial of the motion to transfer is not a
final, appealable order, and we dismiss Bluett’s appeal.
                          CONCLUSION
      We dismiss Bluett’s appeal for lack of a final order.
                                                A ppeal dismissed.

13	
      Id. at 202, ___ N.W.2d at ___.
14	
      Miller, supra note 11, 132 S. Ct. at 2464.
15	
      State v. Meese, 257 Neb. 486, 599 N.W.2d 192 (1999).
16	
      Id. at 495, 599 N.W.2d at 199.
