Nebraska Revised Statute 29-2316

Chapter 29


Error proceedings by prosecuting attorney; decision on appeal; effect.

The judgment of the court in any action taken pursuant to section 29-2315.01 shall not be reversed nor in any manner affected when the defendant in the trial court has been placed legally in jeopardy, but in such cases the decision of the appellate court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered or which may thereafter arise in the state. When the decision of the appellate court establishes that the final order of the trial court was erroneous and the defendant had not been placed legally in jeopardy prior to the entry of such erroneous order, the trial court may upon application of the prosecuting attorney issue its warrant for the rearrest of the defendant and the cause against him or her shall thereupon proceed in accordance with the law as determined by the decision of the appellate court.


  • G.S.1873, c. 58, § 517, p. 836;
  • R.S.1913, § 9187;
  • C.S.1922, § 10194;
  • C.S.1929, § 29-2316;
  • R.S.1943, § 29-2316;
  • Laws 1959, c. 121, § 3, p. 454;
  • Laws 1991, LB 732, § 81;
  • Laws 1992, LB 360, § 9;
  • Laws 2003, LB 17, § 12.


  • 1. Scope

  • 2. Defendant in jeopardy

  • 3. Miscellaneous

  • 1. Scope

  • Where a criminal matter is brought to a higher appellate court by an exception proceeding from the district court sitting as an appellate court, the higher appellate court may reverse the district court's order, because this section does not limit the relief the higher appellate court can order. State v. Hatfield, 300 Neb. 152, 912 N.W.2d 731 (2018).

  • When an exception proceeding is before the Nebraska Supreme Court or Court of Appeals from the district court where the trial took place in district court, this section restricts the scope of any ruling directed at the defendant and district court. But where the district court is sitting as an appellate court, the defendant was not placed in jeopardy in that court and the limitations of this section do not apply to dispositions or orders directed at the district court. State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).

  • The purpose of an appellate review is to provide an authoritative exposition of the law to serve as precedent in future cases. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).

  • Scope and purpose of review of proceedings hereunder is to provide authoritative exposition of the law as precedent in subsequent cases. State v. Jennings, 195 Neb. 434, 238 N.W.2d 477 (1976).

  • Scope and purpose of review are to secure authoritative expositions of law to be used as precedent in similar cases. State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965).

  • Upon reversal of order to quash complaint, further proceedings were authorized. State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962).

  • Function of Supreme Court is to determine law of the case. State v. Luttrell, 159 Neb. 641, 68 N.W.2d 332 (1955).

  • Judgment under this section cannot reverse or affect judgment of trial court, but is solely to obtain authoritative exposition of the law. State v. McDaniels, 145 Neb. 261, 16 N.W.2d 164 (1944).

  • Judgment hereunder does not in any manner affect judgment of district court, but merely determines law governing similar cases or those arising in future. State v. Kastle, 120 Neb. 758, 235 N.W. 458 (1931).

  • 2. Defendant in jeopardy

  • Whether this section prevents an appellate court from reversing the judgment of the trial court turns on whether the trial court placed the defendant in jeopardy, not whether the Double Jeopardy Clause bars further action. State v. Kleckner, 291 Neb. 539, 867 N.W.2d 273 (2015).

  • Even though modifying a sentence on review does not violate constitutional principles of double jeopardy, because of the language of this section, a Nebraska appellate court does not have authority to modify a sentence in an error proceeding when the defendant has been "placed legally in jeopardy." State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).

  • The application of this section turns on whether the defendant has been placed in jeopardy by the trial court, not by whether the Double Jeopardy Clause bars further action. State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006).

  • Where defendant's motion for a new trial was overruled and he did not appeal, he has been placed in jeopardy and ruling in error proceedings could not affect him. State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974).

  • When defendant has been placed in jeopardy, error proceeding by state will not affect the judgment of the trial court. State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967).

  • 3. Miscellaneous

  • Remanded for proceedings after district court's ruling on motion to dismiss habitual criminal charges reversed. State v. Nance, 197 Neb. 257, 248 N.W.2d 339 (1976).

  • Dismissal of complaint on appeal was erroneous, for which judgment was reversed. State v. Ruggiere, 180 Neb. 869, 146 N.W.2d 373 (1966).

  • Exceptions of state were sustained in case involving jurisdiction over the trial of a youth under eighteen years. State v. McCoy, 145 Neb. 750, 18 N.W.2d 101 (1945).

  • Exceptions of state were sustained in case involving question of trial without jury by magistrates and police courts of misdemeanors. State v. Kacin, 123 Neb. 64, 241 N.W. 785 (1932).