18 results for 'judge:"Heavican"'.
J. Heavican finds the district court properly denied defendant's motion for postconviction relief without an evidentiary hearing. Defendant was convicted by no-contest plea for several counts of attempted sexual assault. His motion, based upon an alleged discrepancy between the pronounced and written sentence, was untimely made. Equitable tolling does not apply to the one-year limitation of the cited statute. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: May 10, 2024, Case #: S-22-644, Categories: Sentencing, Sex Offender
J. Heavican finds the district court properly dismissed the losing county commissioner candidate's complaint for declaratory relief. The candidate says a change to the boundary of his district was made without notice to him, causing him to lose the election. Though its opinion does not endorse the public officials' actions, the candidate's request for declaratory relief is not appropriate to contest election results. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: March 22, 2024, Case #: S-23-062, Categories: Elections, Municipal Law
J. Heavican finds the district court properly determined the construction liens attached with priority over the realty company's fee interest. The company did not fully pay the contractors for materials and services for the construction of a Burger King. The Nebraska Construction Lien Act provides that liens attach to the contracting owner’s interest. Because the realty company acquired the property owner's interest, the liens attached to the subject property. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: March 15, 2024, Case #: S-23-282, Categories: Construction, Debt Collection, Property
J. Heavican finds the tax review commission improperly upheld the board's decision to decline to lower the assessed value of real property owned by the insurance company. A fire caused by arson was found not to be a "calamity," as defined by Nebraska statute, and the value was left at the property's assigned assessment of $793,000. The statute excepts any “property suffering significant... damage... caused by the owner.” If a “calamity” did not include all disastrous events, natural or unnatural, it would be unnecessary to except damage caused by an owner. Reversed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: March 8, 2024, Case #: S-23-289, Categories: Insurance, Property, Tax
J. Heavican finds the district court improperly refused to consider defendant's motion for a deferred sentence. While being treated for post-traumatic stress disorder with schizophrenic symptoms resulting from a brain injury incurred during a military deployment, defendant was convicted by guilty plea for operation of a motor vehicle to avoid arrest. The district court erroneously concluded it did not have jurisdiction due to its conclusion that a cited statute involving a right to deferred judgment of conviction is unconstitutional. Reversed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: March 1, 2024, Case #: S-23-038, Categories: Probation, Escape, Vehicle
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J. Heavican finds the trial court properly convicted defendant for first-degree sexual assault and sentenced to 35 to 40 years imprisonment. The victim, after a night of partying and drinking in multiple locations, accepted a ride from defendant. Defendant parked his vehicle in a parking lot before beginning his assault on the protesting victim, who then reported the assault to a police officer who had pulled up behind defendant's vehicle. There was no error in the court’s jury instruction on consent or its decision not to allow continued impeachment of the victim's prior statements to police. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: February 23, 2024, Case #: S-23-147, Categories: Evidence, Sex Offender, Jury Instructions
J. Heavican finds the county court properly removed the sister as trustee of the family trusts. Proceedings distributing trust assets among the siblings following the death of the parents is described as "contentious." The court accepted the cotrustee brother's resignation, then found the sister had breached her fiduciary duty and removed her. That the rest of the siblings have requested the removal of the sister as trustee supports her removal regardless of any breach of fiduciary duty. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: February 2, 2024, Case #: S-23-058, Categories: Family Law, Trusts, Fiduciary Duty
J. Heavican finds the trial court properly convicted defendant for manslaughter based on sufficient evidence. The state showed he made a left-hand turn in his vehicle, at night, while under the influence of marijuana, with the victim crashing his motorcycle into the passenger side. The sentence of 12 to 16 years in prison is within statutory guidelines. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: January 19, 2024, Case #: S-22-901, Categories: Evidence, Manslaughter, Vehicle
J. Heavican finds the trial court properly convicted defendant for first-degree murder after he shot his stepmother multiple times. The jdury instructions involving the state's burden of proof of intoxication do not indicate a miscarriage of justice, and the charge of first-degree murder was properly considered. The record is insufficient on other issues, including claims of ineffective assistance. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: December 1, 2023, Case #: S-22-855, Categories: Evidence, Murder, Sentencing
J. Heavican dismisses this appeal from the juvenile court’s order for electronic monitoring of defendant after an altercation with a police officer, as well as her staff secure detention order for noncompliance with electronic monitoring. Originally charged as a minor in possession of alcohol, obstructing an officer and attempted assault on an officer, the court ordered that defendant wear a monitoring device which she eventually cut off, leaving her residence without permission. As the juvenile was not detained, but subject to alternative detention by electronic monitoring, and the eventual detention was meant to be temporary, the appeal is dismissed for lack of a final, appealable order.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: November 3, 2023, Case #: S-23-071, Categories: Juvenile Law, Assault, Obstruction
J. Heavican finds the district court improperly denied the estate representative and husband of the deceased’s motion to intervene in her personal capacity in the suit involving an agreement between her husband and his deceased brother to name one another as beneficiaries for each’s $2 million life insurance policies, with proceeds to be used to buy out the other’s portion of their shared business. The brother changed the beneficiary to his own wife after his brother’s death, and the first brother’s wife has a direct and legal interest in that she is the residual beneficiary under her husband’s will. Reversed and remanded.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: October 20, 2023, Case #: S-22-743, Categories: Insurance, Wills / Probate, Business Expectancy
J. Heavican finds the trial court properly convicted defendant for four counts of first-degree murder, four counts of use of a weapon to commit a felony, and one count of attempted burglary. All evidence shows that defendant cut the victims’ throats during burglaries taking place five years apart. Certain assignments of error are barred, others are without merit. It cannot be determined on direct appeal whether counsel was ineffective in certain regards. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: September 8, 2023, Case #: S-18-979, Categories: Burglary, Murder, Weapons
J. Heavican finds the district court properly affirmed defendant's convictions and sentences for driving under the influence, possession of an open container and careless driving. The deputy testified he responded to an accident call to find defendant already in an ambulance with a c-collar around his neck. The deputy smelled alcohol and conducted a horizontal and vertical gaze test, which indicated defendant was impaired. A later blood alcohol test revealed defendant was impaired. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: August 25, 2023, Case #: S-22-739, Categories: Evidence, Dui
J. Heavican finds the trial court properly convicted defendant by no-contest plea for felony charges related to an officer-involved shooting, overruling his motion for disqualification and his sentences. Though the judge’s spouse is an active-duty, on-duty law enforcement officer, absent any direct personal connection to the proceeding a judge’s disqualification is not required as a matter of law. All evidence, including defendant’s criminal history, supports the conviction and consecutive sentences. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: August 4, 2023, Case #: S-22-411, Categories: Firearms, Sentencing
J. Heavican finds the district court lacked jurisdiction to review the Nebraska Police Standards Advisory Council's denial of petitioner's admission into basic officer certification training. His application was denied because he lied on the question of whether or not he had ever been convicted of breaking a law. When he was a peace officer in the state of Georgia he was arrested for alleged battery, and the following investigation revealed he had violated agency policies and had displayed a lack of veracity during the investigation. Now, because the district court lacked jurisdiction, the Nebraska Supreme Court acquired no jurisdiction. Appeal dismissed.
Court: Nebraska Supreme Court, Judge: Heavican , Filed On: July 28, 2023, Case #: S-22-648, Categories: Agency, Jurisdiction, Police Misconduct
J. Heavican finds the trial court properly convicted defendant for murder and firearms offenses. Police located a Ford Explorer registered to defendant and identical to one shown on apartment complex security video from which shots were fired into a vehicle in which the victim was a passenger, hitting him in the back. The occupants of this vehicle were searching for a drug dealer they intended to rob. Defendant, in a separate investigation, was discovered to be involved in drug dealing, and had previously been robbed. Cell phone tower data showed that defendant and the victim were in the same area at the same time, which was also consistent with the security video. All evidence was properly admitted and strongly supports conviction. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: June 16, 2023, Case #: S-22-443, Categories: Drug Offender, Evidence, Murder
J. Heavican finds the trial court properly found defendant guilty, by no contest plea, for possession with intent to deliver meth, overruling his motion for new trial. Defendant delivered the drugs to an undercover officer involved in a sting operation. He then discovered that the evidence technician for his case had been federally indicted on drug distribution charges. The chain of evidence custody was shown to not have been compromised and defendant failed to show that his substantial rights were materially affected. He also failed to plead that the Nebraska Postconviction Act was unavailable to him and his motion to withdraw his plea was therefore properly denied. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: June 9, 2023, Case #: S-22-332, Categories: Drug Offender, Evidence, Plea
J. Heavican finds the court of appeals properly affirmed defendant’s conviction for possession of a firearm by a prohibited person, refuting his claims of ineffective assistance. After defendant was arrested pursuant to a drug deal-involved shooting, a witness testified that defendant “carries a Glock 9 with an extended clip everywhere he goes.” Though counsel failed to object to this propensity evidence, it is cumulative of other testimony to which defendant does not assign error and is therefore harmless. Affirmed.
Court: Nebraska Supreme Court, Judge: Heavican, Filed On: May 19, 2023, Case #: S-21-1036, Categories: Drug Offender, Evidence, Firearms