SUMMARY: Juvenile court erred in dismissing with prejudice the State’s petition when the dismissal was based on the State’s failure to appear at the scheduled hearing.
The State of Nebraska filed three petitions to adjudicate Braxton D. as a juvenile under Neb. Rev. Stat. §43-247 alleging Braxton committed the offense of possession of marijuana of one ounce of less, the offense of carrying a concealed weapon and deported himself so as to injure or endanger seriously the morals of himself or others, and the offenses of false reporting, reckless driving, and operating a motor vehicle without a driver’s license. At the adjudicated hearing on January 11, 2013, the juvenile court began the proceedings ten minutes after the scheduled start time without the presence of the State. Counsel for Braxton moved to dismiss the matters for lack of prosecution, and the juvenile court dismissed the petitions with prejudice.
The Nebraska Court of Appeals affirmed the dismissal but modified the dismissal to be without prejudice. The Court of Appeals noted that a dismissal with prejudice is an adjudication on the merits, but a dismissal for lack of prosecution does not result in a disposition on the merits of a controversy. Though the juvenile court was justified in dismissing the petitions when the State failed to appear, the dismissals should have been without prejudice because the juvenile court did not reach the merits of the cases underlying the three petitions.