Waiver of Double Jeopardy on Appeal
The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional. State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996); State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).
Further, "the only exceptions are for the defenses of insufficiency of the indictment, information, or complaint; ineffective assistance of counsel; and lack of jurisdiction." State v. Start, 239 Neb. 571, 574, 477 N.W.2d 20, 22-23 (1991). See, also, State v. Russell, 239 Neb. 979, 479 N.W.2d 798 (1992); State v. Wiemer, 3 Neb. App. 821, 533 N.W.2d 122 (1995).
The rule and the exceptions thereto are equally applicable to a direct appeal or an appeal from postconviction proceedings. See, e.g., State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998) (appeal from denial of postconviction relief); State v. Start, supra (direct appeal).
In State v. Maeder, 229 Neb. 568, 428 N.W.2d 180 (1988), the defendant pled guilty to kidnapping and first degree sexual assault. He was sentenced to 15 to 25 years' imprisonment on each count, the sentences to run consecutively.
He appealed, arguing that because the charges arose out of the same transaction, the consecutive sentences subjected him to double jeopardy.
The Nebraska Supreme Court held that the defendant waived the double jeopardy argument on appeal by voluntarily pleading guilty to the charges below. the Maeder court held: "'"A voluntary guilty plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional."'" 229 Neb. at 570-71, 428 N.W.2d at 182, quoting State v. Rivers, 226 Neb. 353, 411 N.W.2d 350 (1987).
Likewise, in State v. Start, supra, the court followed its decision in Maeder. the court in Start stated:
The district court judge carefully explained to Start the consequences of his pleas, including the possibility of consecutive sentences on the two assault charges. Start was represented by counsel at this time.
The court found that the pleas were freely and voluntarily made, and Start does not dispute that finding here. Under well-settled rules of this court, Start waived the double jeopardy defense by pleading no contest to the assault charges and is therefore precluded from raising that issue on appeal. 239 Neb. at 575, 477 N.W.2d at 23.