Nebraska Supreme Court

Case Number: 298 Neb. 244

Judge: Michael Heavican

Court: Nebraska Supreme Court

Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Austin N. Relph

Defendant's Attorney: Chad J. Wythers

Description: Zeleny was charged by information in the county court
with operating a motor vehicle “while under the influence of
alcoholic liquor or . . . when he had a concentration of eighthundredths
of one gram or more by weight of alcohol per two
hundred ten liters of his breath.” That charge was enhanced
with the allegation that Zeleny’s alcohol level was “fifteen
hundredths of one gram or more by weight of alcohol per two
hundred ten liters of his breath.”
Pursuant to a plea agreement, Zeleny was charged with
“driving under the influence of alcohol, first offense, under
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ZELENY v. STATE
Cite as 298 Neb. 244
.15.” A separate charge of failure to give information at an
accident scene was dismissed. Zeleny was given verbal notice
of this amendment at a hearing on the plea agreement, but the
original complaint was not amended by interlineation and an
amended information was not filed. Zeleny pled guilty to the
single charge, as verbally amended.
At the hearing before the county court, a factual basis for
the crime was established, with the State indicating Zeleny
had called law enforcement to report that he was involved
in a single-vehicle accident. Zeleny reported that he had
crashed into some cattle, drove the vehicle involved in the
crash to his home, and returned to the scene in a different
vehicle. The responding officer observed the odor of alcohol
on Zeleny’s person and noted that Zeleny’s voice was slurred
and his eyes were watery and bloodshot. Zeleny failed a preliminary
breath test and field sobriety tests. He was arrested
and transported to a nearby hospital, where a blood sample
was drawn. That sample tested at a blood alcohol content
of .297.
Prior to sentencing, Zeleny filed a motion to arrest judgment
in the county court, which was denied. Zeleny then filed
a petition for a writ of prohibition with the district court, asking
that the court restrain the county court from sentencing
him in the underlying case for driving under the influence.
Zeleny’s petition for a writ was denied. The basis for both
motions was Zeleny’s contention that there was an insufficient
factual basis to support his plea; specifically, Zeleny
argues that he was charged with driving under the influence
by a measurement of breath, while the factual basis indicated
that the crime was committed by a measurement of blood.
Zeleny appeals.
ASSIGNMENTS OF ERROR
Zeleny assigns that (1) the county court erred in denying
appellant’s motion to arrest judgment and (2) the district court
erred in denying his motion for a writ of prohibition.
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ZELENY v. STATE
Cite as 298 Neb. 244
STANDARD OF REVIEW
[1] Generally, the appropriate standard of review for an order
granting relief by way of a writ of prohibition is de novo.1
ANALYSIS
Issues on Appeal.
As an initial matter, we must consider what issues are before
us in this appeal. Zeleny attempts to appeal the county court’s
denial of his motion to arrest judgment and the district court’s
denial of his motion for a writ of prohibition. The State contends
that only the denial of the motion for a writ of prohibition
is properly before us.
[2-4] An appellate court has jurisdiction to review a “judgment
rendered or final order made by the district court.”2
According to Neb. Rev. Stat. § 25-1301(1) (Reissue 2016), a
“judgment is the final determination of the rights of the parties
in an action.” We have previously indicated that a motion for
a writ of prohibition is an action.3 The denial of Zeleny’s writ
of prohibition, then, was a final determination of that action.
Thus, the assignment of error relating to the writ of prohibition
is properly before this court.
[5,6] But we do not have jurisdiction over the denial of the
motion to arrest judgment filed in the county court. An appellate
court’s jurisdiction is limited to the judgment or final
order from which the appeal is taken.4 An appeal from a final
order may raise, on appeal, every issue presented by the order
that is the subject of the appeal. But that jurisdiction does
not extend to issues that are not presented by the final order,
because an appellate court’s jurisdiction to grant relief pursuant
to Neb. Rev. Stat. § 25-1911 (Reissue 2016) is limited
1 72A C.J.S. Prohibition § 91 (2015).
2 Neb. Rev. Stat. § 25-1911 (Reissue 2016).
3 State, ex rel. Wright, v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).
4 State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005).
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to reversal, vacation, or modification of the final order from
which the appeal is taken.5
In other words, while an appellate court can reverse, vacate,
or modify a final order, it cannot address issues that do not
bear on the correctness of the final order upon which its appellate
jurisdiction is based.6 Without opining on the finality of
the county court’s order denying Zeleny’s motion to arrest
judgment, we observe that it appears Zeleny did not file a separate
notice of appeal from that order. And even if he had filed
a notice of appeal in the county court, the appeal would have
run to the district court in a separate proceeding from that initiated
by Zeleny’s petition for a writ of prohibition. The motion
to arrest judgment is simply not before us. As such, we lack
jurisdiction to determine the merits of Zeleny’s first assignment
of error relating to the county court’s denial of the motion to
arrest judgment.
Writ of Prohibition.
We turn to Zeleny’s contention that the district court erred in
denying the petition seeking a writ of prohibition.
[7] In modern practice, the writ of prohibition is an extraordinary
writ, issued by a superior court to an inferior judicial
tribunal to prevent the latter from exceeding its jurisdiction,
either by prohibiting it from assuming jurisdiction in a matter
over which it has control, or from exceeding its legitimate
powers in a matter of which is has jurisdiction.7
[8,9] Prohibition is a preventative remedy rather than a corrective
one.8 Mere error, irregularity, or mistake in the proceedings
of a court having jurisdiction does not justify a resort to
5 See id.
6 Id.
7 Conkling v. Delany, 167 Neb. 4, 91 N.W.2d 250 (1958).
8 State of Nebraska ex rel. Line v. Kuhlman, 167 Neb. 674, 94 N.W.2d 373
(1959).
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the extraordinary remedy by prohibition, both because there
has been no usurpation or abuse of power and because there
exist other adequate remedies.9 Whatever power is conferred
may be exercised, and, if it is to be exercised injudiciously or
irregularly, it amounts to an error merely, and not a usurpation
or excess of jurisdiction.10
Prohibition is a counterpart to a writ of mandamus in that
the writ of mandamus is used to compel the performance of
certain activities, while a writ of prohibition is used to restrain
the performance of certain activities.11 A writ of prohibition is
the legal equivalent of the equitable remedy of injunction.12
[10] In general, three things are necessary to justify the
issuance of a writ of prohibition: (1) that the court, officer, or
person against whom it is directed is about to exercise judicial
or quasi-judicial power; (2) that the exercise of such power
by such court, officer, or person is unauthorized by law; and
(3) that it will result in injury for which there is no other
adequate remedy.13
In this case, we agree that the county court is set to sentence
Zeleny, which is a judicial power. But the exercise of this
power was not unauthorized by law. Contrary to Zeleny’s suggestion
otherwise, it is plain that a county court has, on these
facts, the jurisdiction to sentence Zeleny for his driving under
the influence conviction.
Moreover, the issuance of a writ of prohibition was not the
only remedy to cure Zeleny’s claimed injury. Zeleny complains
that his plea was not supported by a sufficient factual
basis. Assuming without deciding that this was the case, other
9 Conkling v. DeLany, supra note 7.
10 Id.
11 72A C.J.S., supra note 1, § 1.
12 Id.
13 See, Line v. Rouse, 241 Neb. 779, 491 N.W.2d 316 (1992); State of
Nebraska ex rel. Line v. Kuhlman, supra note 8.
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remedies are available to him. Zeleny could move to withdraw
his plea, or he could appeal from his conviction following
sentencing. Zeleny has failed to meet the standards for the issuance
of such an extraordinary writ.
There is no merit to Zeleny’s second assignment of error.

Outcome: The decision of the district court is affirmed.

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Defendant's Experts:

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