appeal attorney in nebraska

Appeal attorneys in Nebraska are difficult to find. Most attorneys only represent defendant through the original criminal case. Once the defendant is convicted, those attorneys do not help the Defendant file an appeal. The appeal process in Nebraska is difficult, and if rules aren’t followed, a Defendant can lose his right to appeal a criminal conviction. Contact an appeal attorney in Nebraska immediately if you need help with an appeal. Our appeal lawyers are ready to file an appeal immediately if need be. 

 The Appeal Process in Nebraska

The Direct Appeal Process

Once a person has been sentenced in Nebraska, the conviction becomes final. Once a conviction becomes final, the person has 30 days to file an appeal. Nebraska Statute 25-1912. To file an appeal, you need an appeal attorney in Nebraska. 

Once 30 days have passed from the date the sentence was imposed, there is no longer an opportunity for the Defendant to file a direct appeal, and many options will be lost forever. 

In order to file a direct appeal, a defendant must file submit several items:

1. A notice of appeal, 
2. A filing fee or a poverty affidavit,
3. A request for a Bill of Exceptions and a Transcript,

If you or someone else needs an appeal filed in Nebraska, 

contact an attorney immediately at (402) 643-5427

Filling Fee or Poverty Affidavit

Along with the notice of appeal, the filing fee must be submitted. In order to appeal from the district court to the Nebraska Court of Appeals (e.g., for a felony), a person must pay a filing fee in the amount of $75.00 OR the person must submit a poverty affidavit explaining to the court that they are without money to pay the cost of the appeal. The poverty affidavit must be submitted within 30 days of the sentencing date or there is a chance the appeal will be dismissed. 

A poverty affidavit for asking the Court to pay for an appeal can be found here: Poverty Affidavit

Bill of Exceptions and Transcript

When filing an appeal, the appellate court must be able to review the proceedings in the lower court to determine whether the lower court made a mistake. The documents that are filed to preserve the lower court record are called a Bill of Exceptions and a Transcript. The request for those items must be filed at the same time the notice of appeal is filed or the case can be dismissed. Additionally, it costs money to have someone type up the record of what occurred in Court. The cost to type up the record must be submitted shortly after the request is made, and the failure to pay for the costs ahead of time can result in the appeal being dismissed. Some of the appellate rules can be found here: Nebraska Rules of Appellate Procedure

If you or someone else needs an appeal filed in Nebraska, contact an attorney immediately at (402) 643-5427

Motion for Post Conviction Relief

After the direct appeal, a defendant has one year to file a motion for post-conviction relief. Post conviction refers to the method of remedy available after a direct appeal has been concluded. A motion for post-conviction relief is a legal process by which a convicted person can request that a court review and possibly overturn their conviction for sentence based upon a violation of a constitutional right. Common grounds include newly discovered evidence, conflicts of interest, prosecutorial misconduct, and violations of constitutional rights. 

As noted above, you have one year to file a motion for post-conviction relief. The one-year period begins to run from the following events:

• The date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal;
• The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence;
• The date on which an impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of this state, is removed, if the prisoner was prevented from filing a verified motion by such state action;
• The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on postconviction collateral review; or
• The date on which the Supreme Court of the United States denies a writ of certiorari or affirms a conviction appealed from the Nebraska Supreme Court. This subdivision only applies if, within thirty days after petitioning the Supreme Court of the United States for a writ of certiorari, the prisoner files a notice in the district court of conviction stating that the prisoner has filed such petition.

The applicable provision in most cases is sub-category (a): the one-year period from the date that the Court of Appeals or Supreme Court issued its judgment.

In short, a motion for post-conviction relief must allege that there was a constitutional violation or a violation of your constitutional rights. State v. Reizenstein, 183 Neb. 325 (1967). The motion must clearly state the grounds for relief and provide evidence in support of the relief. Any petition that is filed should clearly and specifically detail the constitutional violations, and it should provide facts and evidence supporting the constitutional violations. A frequent form of evidence can include affidavits from witnesses, etc. 

If the Judge believes that the petition contains evidence of a constitutional violation, the Judge can order an evidentiary hearing to flesh out and prove the issues raised in the petition. 

It is important to note that a motion for post-conviction relief must address new issues or issues that could not have been known or litigated on direct appeal. State v. Malone, 308 Neb. 929 (2021). This means, simply, that any issues to be raised in a motion for post-conviction relief must be “new” and could not have been raised during the direct appeal. 

Restated one more way, a motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal, no matter how the issues may be phrased or rephrased. State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002).

Common Issues Regarding Post-Conviction Relief

An excessive sentence is not a proper subject for postconviction relief. State v. Russell, 239 Neb. 979, (1992). Matters relating to sentences imposed with statutory limits are not a basis for post-conviction relief. State v. Walker, 197 Neb. 381 (1977); State v. DeLoa, 194 Neb. 270 (1975); State v. Birdwell, 188 Neb. 116 (1972).

A conflict of interest at trial and at sentencing is not a proper subject for post-conviction relief as it could have been presented on direct appeal, and failure to do so is procedural default which barred review in postconviction proceeding. For postconviction purposes, issues raised in a prior proceeding but disposed of procedurally are not already litigated. State v. Whitmore, 238 Neb. 125 (1991).

The discovery of new evidence may result in a valid basis for post-conviction relief. After a criminal case is closed, there may be ethical duties that require prosecutors to take action upon learning of evidence that creates a reasonable likelihood the defendant did not commit the crime. But Nebraska's postconviction statutes provide relief only for constitutional violations that render a conviction void or voidable. The prosecution's disclosure duties under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), do not apply after a defendant has been convicted in a fair trial and the presumption of innocence no longer applies. State v. Harris, 296 Neb. 317 (2017).

The conflicting testimony of a key witness – after trial – does not provide a basis for relief. State v. Ford, 187 Neb. 353 (1971). 

If a prosecutor’s witness knowingly provides false testimony, that may provide the basis for post-conviction relief. State v. Huffman, 186 Neb. 809 (1971). 

Evidentiary Hearing

If the application for post-conviction relief sufficiently alleges a constitutional violation that could not have been raised on direct appeal, the Court will schedule an evidentiary hearing. At that hearing, a petitioner can use the Court’s subpoena power to call witnesses to testify, and the defendant can present evidence to the Court to show that his or her constitutional rights were, in fact, violated. 

If the Court agrees that the Defendant's constitutional rights were violated, the Court may provide any appropriate remedy, including, but not limited to, a new trial. 

If you or someone else needs an appeal filed in Nebraska, contact an attorney immediately at (402) 643-5427