Reinstated appeal, child care subsidies, DNA tests and property-casualty insurance disputes in Supremes

State v. Smith; Proper remedy for appeal dismissed due to Court clerk mistakes: Defendant's first motion for post conviction relief was dismissed. The court dismissed this appeal because there was no poverty affidavit with the notice of appeal. The Defendant filed a 2nd motion for post conviction reelief alleging that he did attach the poverty affidavit to the notice of appeal. the Court agreed and reinstated the appeal to Defendant's first pcr motion. The Supreme Court agreed, stating that when an appellant alleges and proves that his appeal was dismissed due to court personnel mistakes, the proper remedy on motion is to reinstate the appeal. Ineffective counsel motion denied in Supreme court because although identification procedures through varyng size and type of photographs was suggestive, the suggestiveness was not overwhelming and the victim identified the defendant in trial, without the benefit of the photo line up. Also failing to name the victim in the charging documents was not prejudicial

Johnsen v. State, 269 Neb. 790 May 13, 2005. No. S-03-1319. Appeal from denial of child care subsidies enacted during 2002 state budget cutting sessions. Supreme Court held that Regulations purporting to reduce the income level making parents eligible for subsidized child care by 30% was a valid regulation under the constitutional separation of powers. Regulation reducing income eligible for child care also did not contradict Federal Regulations that placed a ceiling on income triggering child care eligibility (fed reg said not over 270% of poverty level, proposed reg stated eligibility at not over 120% of poverty level. Finally giving notice that a regulation would go into effect did not deny child care subsidy recipient of due process because no benefit reductions occurred until regs went into effect.

State v. El-Tabech, 269 Neb. 810 May 13, 2005. No. S-04-527: Appeal from overruled motion to new trial under DNA testing statute. Court holds that DNA tests that only provide some exculpatory evidence do not merit a new trial unless the newly discovered exculpatory DNA evidencetprobably would have produced a substantially different result if it had been offered and admitted at the former trial . See, §§ 29-4123(3) and 29-2101(6); State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 2003. The "newly discovered evidence" standard, see eg. State v. Boppre, 243 Neb. 908, 924 1993 {probability of a substantially different result if newly discovered evidence had been offered and admitted at trial}applies to DNA tests, rather than the "ineffective counsel" Strickland v. Washington, 466 U.S. 668 standard {reasonable probability of a different result at trial but for unprofessional errors}

Olson v. Le Mars Mut. Ins. Co., 269 Neb. 800 Filed May 13, 2005. No. S-04-045. Property valued at $200,000 was partially damaged in fire. Hail policy provided for lesser of repair costs or lost value. Repair cost was $95000 and Insurance sought to reduce claim by claimed depreciation in property. Court held that when compensating for repairs to partially damaged property, the insurance company may not consider depreciation and must pay the full cost of repairing the property. Insurance company might have won if the property insured for an actual cash value determined solely on the basis of replacement costwere a complete loss