Volume 271 — Nebraska Reports

1. <bold>Motions to Dismiss: DNA Testing: Appeal and Error.</bold> A motion to dismiss an action under the DNA Testing Act, Neb. Rev. Stat. §§ <cross_reference>29-4116</cross_reference> through <cross_reference>29-4125</cross_reference> (Supp. 2001), after testing has been completed is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the court's determination will not be disturbed.<page_number>Page 859</page_number> 2. <bold>DNA Testing: Appeal and Error.</bold> In an appeal from a proceeding under the DNA Testing Act, Neb. Rev. Stat. §§ <cross_reference>29-4116</cross_reference> through <cross_reference>29-4125</cross_reference> (Supp. 2001), the trial court's findings of fact will be upheld unless such findings are clearly erroneous. 3. ___: ___. Decisions regarding appointment of counsel under the DNA Testing Act, Neb. Rev. Stat. §§ <cross_reference>29-4116</cross_reference> through <cross_reference>29-4125</cross_reference> (Supp. 2001), are reviewed for an abuse of discretion. 4. <bold>Motions to Dismiss: DNA Testing: Appeal and Error.</bold> In order to bring an action under the DNA Testing Act, Neb. Rev. Stat. §§ <cross_reference>29-4116</cross_reference> through <cross_reference>29-4125</cross_reference> (Supp. 2001), to a conclusion, when the State receives DNA testing results that do not exonerate or exculpate the person, the State should file a motion to dismiss the action, the granting of which is an appealable order. 5. <bold>Constitutional Law: DNA Testing: Right to Counsel.</bold> There is not a constitutional right to appointment of counsel in an action under the DNA Testing Act, Neb. Rev. Stat. §§ <cross_reference>29-4116</cross_reference> through <cross_reference>29-4125</cross_reference> (Supp. 2001). 6. <bold>DNA Testing: Right to Counsel.</bold> Under Neb. Rev. Stat. § <cross_reference>29-4122</cross_reference> (Supp. 2001), the court has discretion to appoint counsel based on its determination of whether the person bringing the action has shown that DNA testing may be relevant to his or her claim of wrongful conviction.