Motion to suppress; appeal; time limit; order for custody.
In making an order granting a motion to suppress and to return property, the trial court shall in such order fix a time, not exceeding ten days, in which the county attorney or other prosecuting attorney may file a notice with the clerk of such court of his or her intention to seek a review of the order. Upon the filing of such notice the trial court shall fix the time in which the application for review shall be filed with the appellate court, and shall make an appropriate order for custody of the property pending completion of the review.
Source:Laws 1963, c. 155, § 5, p. 554; Laws 1998, LB 218, § 15.
State may appeal an order sustaining a motion to suppress evidence. State v. Hagen, 180 Neb. 564, 143 N.W.2d 904 (1966).
This section gives the district court the authority to establish time limits for the State to file a notice of intent with the clerk of the district court seeking review of an order granting a motion to suppress and to file the application with the appellate court. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).
The docket fee requirement contained in section 25-2729 necessarily applies to appeal brought by a prosecuting attorney pursuant to this section and sections 29-824 and 29-825, because section 25-2728 does not expressly exclude this section and sections 29-824 and 29-825 from the application of section 25-2729. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where a county court fails to fix a time in which the State may appeal under this section, the State must file its notice of intention to seek review of the county court's order within 10 days; failure to do so deprives the district court of subject matter jurisdiction to hear the State's appeal. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).
Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in section 25-2729, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).