State v. Jackson

Caporale, J.,

dissenting.

Although I agree with the majority’s conclusion that defendant’s misdescription of the plea does not provide a basis for resolving this appeal, I nonetheless respectfully dissent. I do so because, in my view, the majority’s analysis is incomplete and for that reason resolves the case incorrectly.

We have held that any assignment of error which requires an examination of the evidence cannot prevail on appeal in the absence of a bill of exceptions; the only question presented *884under such circumstances is the sufficiency of the pleadings to sustain the judgment of the trial court. State v. Turner, 218 Neb. 365, 355 N.W.2d 219 (1984); State v. Robinson, 215 Neb. 449, 339 N.W.2d 76 (1983). Similarly, State v. Richter, 220 Neb. 551, 371 N.W.2d 125 (1985), refused to consider whether the defendant’s plea had been voluntarily made because the bill of exceptions did not cover the arraignment hearing.

Thus, in the absence of a bill of exceptions covering the hearing held on Jackson’s motion to withdraw his plea, we may properly consider only whether defendant’s motion is sufficient to support the order of the county court overruling it. Obviously, the order overruling the motion is one of the alternative rulings the motion permitted the county court to make. Thus, the motion is sufficient to support the county court’s order.

In the absence of evidence to the contrary, this court cannot conclude that the reason given by the county court for its ruling is the only reason which existed. If a proper reason for denying the motion was revealed by the evidence, the county court reached the right result for the wrong reason. Such an error in reasoning would be harmless, and harmless error forms no basis for reversing a judgment of guilt. State v. Gregory, 220 Neb. 778, 371 N.W.2d 754 (1985); State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).

While the majority’s resolution rendered unnecessary any discussion of defendant’s argument that the district court lacked jurisdiction to “dismiss” his appeal from the county court, the foregoing analysis requires such a discussion.

It is true that at the relevant time, December 13, 1985, Neb. Rev. Stat. § 29-613 (Reissue 1985) (repealed in 1986 Neb. Laws, L.B. 529, effective April 10, 1986) provided in pertinent part: “The district court shall hear and determine any cause brought by appeal from a county court . . . upon the record and may affirm, modify, or vacate the judgment or may remand the case to the county court for a new trial.” Neb. Rev. Stat. § 24-541.06 (Reissue 1985) provides, as it did at the relevant time, that, with an exception not relevant to this case, on appeals from the county court the district court may “affirm, affirm but modify, or reverse” the county court judgment. Whatever may have *885been the power of a district court under the provisions of § 29-613 or under § 24-541.06 to dismiss an appeal from a county court, this case does not reach the issue. This is so because notwithstanding the use of the word “dismissal,” the district court actually, by ordering execution of the county court sentence, affirmed the judgment and sentence of the county court. Just as defendant’s misdescription of his plea did not change the true nature of his motion, neither did the district court’s misdescription of its action change the true nature of its judgment. The district court unquestionably possessed power under the language of § 29-613, as it does under § 24-541.06, to affirm a county court judgment.

I would affirm the judgment of the district court.

Boslaugh, J., joins in this dissent.