Friday, April 21, 2006

Nebraska Supreme Court (McCormack, J.): Defendant who brought facial challenge to Nebraska child enticement law (§ 28-320.02) waived constitutional challenge when he failed to bring demurrer or motion to quash instead of pleading not guilty to enticing a police officer who posed as an online child; Court notes that signing 29-4206 form does not allow conditional not guilty pleas.State v. Liston, 271 Neb. 468 Filed April 21, 2006. No. S-05-1046. Defendant signed a form entitled "Written Arraignment and Waiver of Physical Appearance," which was filed with the court on January 25, 2005. The Def. marked "plea in abatement" and "motion to quash." The district court's journal entry for February 3, 2005, shows that pursuant to this waiver, the court entered Liston's not guilty plea "subject to any pretrial motions noted therein." The defendant's subsequent motion to quash was overruled. The cour tof appeals dismissed that appeal for lacking a final order and a jury convicted the defendant. The Defendant on appeal sought to challenge the constitutional validity of the child enticement law. Supreme Court affirms Pursuant to Neb. Rev. Stat. § 29-1812(Reissue 1995), once a defendant has entered a plea, or a plea is entered for the defendant by the court, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and thereafter files a motion to quash. State v. Kubin, 263 Neb. 58, 638 N.W.2d 236 (2002). Section29-4206does not, however, authorize district courts to accept pleas of not guilty on a conditional basis. Moreover, such an interpretation would be inconsistent with the Legislature's statement of intent in Neb. Rev. Stat. § 29-4201(Cum. Supp. 2004). A preamble or policy statement in a legislative act is not generally self-implementing, but may be used, if needed, for assisting in interpreting the legislative intent for the specific act of which the statement is a part. State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004). Section 29-4201provides: "It is the intent and purpose of sections 29-4201 to 29-4207 to authorize . . . certain district court arraignments by writing in criminal proceedings consistent with the statutory and constitutional rights guaranteed by the Constitution of the United States and the Constitution of Nebraska." (Emphasis supplied.) The language of § 29-4201demonstrates that the Legislature did not intend to allow written arraignments to supersede Nebraska's criminal procedure statutes. Relevant here, the waiver of defects statute, § 29-1812, specifically provides: "The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue." (Emphasis supplied.) A defendant's waiver of defects under § 29-1812is mandatory and does not permit a district court to entertain his or her facial challenge to a statute raised in a motion to quash so long as the defendant's plea to the general issue still stands. Nothing in Section29-4206contravenes the language of§ 29-1812, nor did the Legislature alter § 29-1812at the time that Neb. Rev. Stat. §§ 29-4201 to 29-4207 (Cum. Supp. 2004) were enacted. Thus, the Legislature is presumed to have retained the requirement under§ 29-1812that a defendant must withdraw his or her plea to the general issue before filing a motion to quash, even if the defendant's plea is entered pursuant to a written arraignment. See State v. Neiss, 260 Neb. 691, 701, 619 N.W.2d 222, 229-30 (2000) ("where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent"). A district court does not have authority to permit a defendant to file a motion to quash challenging the facial validity of a statute unless the defendant first obtains leave to withdraw his or her plea of not guilty.

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