Tuesday, March 28, 2006

Nebraska court of appeals burns attorney generals office a little bit; State appeals sentence of probation for a child abuser but does not file brief on time; Court of Appeals does not dismiss appeal but affirms the sentence. Appeals court also rejects defendant's cross appeal that attorney general did not follow procedures to take over the appeal.State v. Rivera, 14 Neb. App. 590 Filed March 28, 2006. No. A-04-1142. If the appellant fails to file its brief within the time allowed by the rules, the Supreme Court Clerk is directed to mail a notice of default to the appellant or appellant's counsel of record. See Neb. Ct. R. of Prac. 10A (rev. 2000). Although we expect the officers of the State to adhere to the highest professional standards and to timely comply with this court's rules, we find no merit in Rivera's argument. Failure to file a brief in response to that notice subjects the appeal to dismissal. Id. Because the State filed its brief prior to issuance of any notice of default, rule 10A provides no support for dismissal of the State's appeal. See, also, State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001) (although failure to comply with Nebraska Supreme Court rules may in some instances result in its not considering issue raised on appeal, failure to comply with rule requiring jurisdictional statement is not jurisdictional and does not divest court of jurisdiction).

No comments: