Friday, September 08, 2006

Norfolk bank robbers death penalty appeal of finding him smart enough for execution is not a final order State v. Vela, S-06-595, 272 Neb. 287 The Nebraska Supreme Court dismisses Eric Vela's appeal from the Court's ruling that he was smart enough to face execution for participating in the 2002 Norfolk bank robbery. The right at issue in the instant case is both statutory and constitutional. See, § 28-105.01(2); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). However, both the statutory mandate and constitutional rule are based on the determination that "mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes," but "[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses . . . they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Atkins, 526 U.S. at 306. See, also, Introducer's Statement of Intent, L.B. 1266, Judiciary Committee, 95th Leg., 2d Sess. (Feb. 13, 1998).Because it neither affected a substantial right nor was made in a special proceeding, the court's order overruling the defendant's motion to preclude imposition of the death sentence because of mental retardation was not a final, appealable order. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the tribunal from which the appeal is taken. In re Guardianship of Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006). When an appellate court is without jurisdiction to act, the appeal must be dismissed. State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006).

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