concurring.
Although I concur in the result reached by the majority opinion to dismiss this appeal, I write separately to comment on what I believe is a fundamental problem in this matter. The proceeding giving rise to this appeal was filed under the DNA Testing Act, Neb. Rev. Stat. §§ 29-4116 through 29-4125 (Cum. Supp. 2006).' We have stated that a proceeding under the DNA Testing Act is a collateral attack on a conviction and is, therefore, similar to a postconviction action and is not part of the criminal proceeding itself. State v. Poe, 271 Neb. 858, 717 N.W.2d 463 (2006). Therefore, the instant matter is not a criminal proceeding.
On June 20, 2005, Juneal Dale Pratt, appellee, filed a pleading in connection with his DNA Testing Act proceeding entitled “Motion for Certification for Out-of-State Witness,” stating that the “motion is filed pursuant to Neb. Rev. Stat. § 29-1904 (Reissue 1995), Neb. Rev.. Stat. § 29-1906 et seq. (Reissue 1995).” Article 19, chapter 29, of the Nebraska Revised Statutes relating to criminal cases is entitled “Preparation for Trial,” and, importantly, Neb. Rev. Stat. §§ 29-1906 to 29-1911 (Reissue 1995) are cited as the “Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings,” § 29-1911. I would conclude that a motion under §§ 29-1904 and 29-1906 to 29-1911 may be filed in a criminal proceeding, but not in a DNA Testing Act proceeding, which is not a part of the criminal proceeding itself. Given this conclusion, the motion filed by Pratt giving rise to this appeal was not an authorized motion in the noncriminal DNA Testing Act proceeding in connection with which it was filed. Nevertheless, the order on appeal may be characterized as an interlocutory, nonappealable discovery order and I, therefore, agree with the decision of the majority opinion which concludes that in the absence of an appealable order, this court lacks jurisdiction.
Stephan, J., joins in this concurrence.