(1) The grounds set forth in subdivisions (2), (3), and (6) of section 29-2101 shall be supported by affidavits showing the truth of such grounds, and the grounds may be controverted by affidavits. The ground set forth in subdivision (5) of section 29-2101 shall be supported by evidence of the truth of the ground in the form of affidavits, depositions, or oral testimony.
(2) If the motion for new trial and supporting documents fail to set forth sufficient facts, the court may, on its own motion, dismiss the motion without a hearing. If the motion for new trial and supporting documents set forth facts which, if true, would materially affect the substantial rights of the defendant, the court shall cause notice of the motion to be served on the prosecuting attorney, grant a hearing on the motion, and determine the issues and make findings of fact and conclusions of law with respect thereto.
(3) In considering a motion for new trial based on the grounds set forth in subdivision (5) of section 29-2101, if the court finds that there is evidence materially affecting the substantial rights of the defendant which he or she could not with reasonable diligence have discovered and produced at trial, the court may, upon the motion of any party and following a hearing, vacate and set aside the judgment and release the person from custody or grant a new trial as appropriate.
Notes of Decisions
Cited in
28
cases (
13 in the last 5 years), 1931–2026 · leading case:
State v. Cross
State v. Cross (2017)
neb · cites it 23×
“FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Boppre (2023)
neb · cites it 43×
“When a defendant seeks a new trial on the ground of newly discovered evidence, the evidentiary hearing provisions of Neb. Rev. Stat. § 29-2102 (2) (Reissue 2016) are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts…”
State v. Hill (2021)
neb · cites it 25×
“511 if true, would materially affect the substantial rights of the defendant” 5 and entitle the movant to a hearing.”
State v. Madren (2021)
neb · cites it 9×
“1 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.”
State v. Brown (2021)
neb · cites it 4×
“Without explicitly ruling on the motion, the district court con- ducted a hearing as contemplated by Neb. Rev. Stat. § 29-2102 (Reissue 2016).”
State v. Bartel (2021)
neb · cites it 2×
“See, also, Neb. Rev. Stat. § 29-2102 (3) (Reissue 2016).”
State v. Blocher (2023)
neb · cites it 2×
“699 Blocher did not support the motion with any evidence, and the district court overruled the motion on the same day for not complying with the requirements of Neb. Rev. Stat. § 29-2102 (Reissue 2016).”
State v. Mills (1977)
neb · cites it 2×
“” The affidavit supporting defendant’s motion, as required by section 29-2102, R. R. S. 1943, has previously been summarized.”
State v. Cross (2017)
neb · cites it 24×
“FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Peery (1980)
neb · cites it 4×
“Subsequently, defendant filed a motion for rehearing on the motion for new trial based on newly discovered evidence. The court overruled this motion.”
State v. Garcia (2024)
neb · cites it 7×
“When a defendant seeks a new trial on the ground of newly discovered evidence, the evidentiary hearing provisions of Neb. Rev. Stat. § 29-2102 (2) (Reissue 2016) are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts…”
State v. Harris (2020)
neb
“” § 29-2102(3). Under § 29-2101(5), as in other collateral attacks, Harris sought to have the existing judgment vacated.”
— Neb. Rev. Stat. § 29-2102(1) — 11 cases
State v. Boppre (2023)
neb
“When a defendant seeks a new trial on the ground of newly discovered evidence, the evidentiary hearing provisions of Neb. Rev. Stat. § 29-2102 (2) (Reissue 2016) are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts…”
State v. Cross (2017)
neb
“FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Hill (2021)
neb
“511 if true, would materially affect the substantial rights of the defendant” 5 and entitle the movant to a hearing.”
State v. Cross (2017)
neb
“FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
— Neb. Rev. Stat. § 29-2102(2) — 14 cases
State v. Cross (2017)
neb
“FACTS In 2009, Cross was charged with second degree assault and use of a weapon to commit a felony for allegedly beating Pedro Pacheco with a baseball bat.1 Before trial, Cross’ appointed counsel, Richard DeForge, was allowed to withdraw based on a conflict of interest.”
State v. Boppre (2023)
neb
“When a defendant seeks a new trial on the ground of newly discovered evidence, the evidentiary hearing provisions of Neb. Rev. Stat. § 29-2102 (2) (Reissue 2016) are satisfied if the motion and supporting affidavits, depositions, or oral testimony set forth sufficient facts…”
State v. Hill (2021)
neb
“511 if true, would materially affect the substantial rights of the defendant” 5 and entitle the movant to a hearing.”
State v. Madren (2021)
neb
“1 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.”
State v. Brown (2021)
neb
“Without explicitly ruling on the motion, the district court con- ducted a hearing as contemplated by Neb. Rev. Stat. § 29-2102 (Reissue 2016).”
— Neb. Rev. Stat. § 29-2102(3) — 2 cases
State v. Harris (2020)
neb
“” § 29-2102(3). Under § 29-2101(5), as in other collateral attacks, Harris sought to have the existing judgment vacated.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.