State v. Fredrickson , 306 Neb. 81 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/24/2020 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
State of Nebraska, appellant, v.
Richard A. Fredrickson, appellee.
___ N.W.2d ___
Filed June 5, 2020. No. S-19-1083.
1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
dictional issue which does not involve a factual dispute is a matter of
law which requires an appellate court to reach its conclusions indepen-
dent from a trial court.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Courts: Jurisdiction: Legislature: Appeal and Error. In order to have
jurisdiction over an appeal, appellate jurisdiction must be specifically
provided by the Legislature.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
5. Criminal Law: Judgments: Sentences: Appeal and Error. In a crimi-
nal case, the judgment from which the appellant may appeal is the
sentence.
6. Judgments: Words and Phrases. Every direction of the court made or
entered in writing and not included in a judgment is an order.
7. Final Orders: Appeal and Error. In order to be a final order which
an appellate court may review, the lower court’s order must (1) affect
a substantial right and determine the action and prevent a judgment,
(2) affect a substantial right and be made during a special proceeding,
(3) affect a substantial right and be made on summary application in an
action after a judgment is rendered, or (4) deny a motion for summary
judgment which was based on the assertion of sovereign immunity or
the immunity of a government official.
8. Final Orders. The first step in a final order analysis under Neb. Rev.
Stat. § 25-1902 (Supp. 2019) is to determine whether the order affected
a substantial right of one or more parties.
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STATE v. FREDRICKSON
Cite as 306 Neb. 81
9. ____. Whether an order affects a substantial right focuses on whether
the right at issue is substantial and whether the court’s order has a sub-
stantial impact on that right.
10. ____. Whether an order affects a substantial right depends on whether it
affects with finality the rights of the parties in the subject matter. It also
depends on whether the right could otherwise effectively be vindicated.
11. Final Orders: Appeal and Error. An order affects a substantial right
when the right would be significantly undermined or irrevocably lost by
postponing appellate review.
Appeal from the District Court for Washington County:
John E. Samson, Judge. Appeal dismissed.
M. Scott Vander Schaaf, Washington County Attorney, and,
on brief, Desirae M. Solomon for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
The State attempts to appeal from the district court’s order
allowing the defendant to proceed in forma pauperis with his
criminal appeal. The defendant filed an application, pursuant to
Neb. Rev. Stat. § 29-2306 (Reissue 2016), to proceed in forma
pauperis in his criminal appeal. The district court granted the
application, ordering, pursuant to § 29-2306 and Neb. Rev.
Stat. §§ 25-2305 and 25-2306 (Reissue 2016), that the defend­
ant did not have to pay the docket fees and costs associated
with production of the transcript and bill of exceptions. The
State now challenges that determination. The direct appeal
was affirmed by the Nebraska Court of Appeals on May 26,
2020, 1 but the mandate setting forth the total amount of fees
or costs due to the appellate court has not yet been issued in
that appeal.
1
State v. Fredrickson, No. A-19-633, 2020 WL 2643875 (Neb. App. May
26, 2020) (selected for posting to court website).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
BACKGROUND
Richard A. Fredrickson was charged by amended infor-
mation with several robbery-related charges in Washington
County. On April 16, 2018, the county court ordered that
Fredrickson was “adjudged indigent,” despite Fredrickson’s
failure to file a poverty affidavit, and counsel was appointed
to represent Fredrickson at the county’s expense. The case was
then moved to district court, where Fredrickson entered a no
contest plea to robbery in exchange for the State’s dismissing
the remaining counts.
Subsequently, the State filed a motion to determine
Fredrickson’s indigent status, noting Fredrickson’s failure to
file the poverty affidavit and alleging Fredrickson may have
sufficient funds to compensate the county for legal work per-
formed. The State also filed a motion to dispose of property,
requesting the sale of Fredrickson’s impounded vehicle alleg-
edly used in the commission of the robbery. The State asked
that any funds acquired from such sale be directed by the court
to reimburse the county for Fredrickson’s representation.
On June 4, 2019, immediately prior to sentencing, a hear-
ing was held on the State’s two motions. At the hearing, the
State pointed out that the county court had appointed counsel
for Fredrickson without receiving any evidence of his financial
status. Although Fredrickson admitted he had failed to submit
a poverty affidavit, he completed a new form and submitted it
at the hearing.
Fredrickson’s affidavit indicated that he had $22,000 in
assets, his vehicle was worth $9,000, and he had a bank
account with a $13,000 balance. The affidavit also indicated that
Fredrickson was obligated to pay child support in the amount
of $100 per month for each of his two children. According to
Fredrickson, his savings were being managed by his “power of
attorney person” for the continued payment of child support.
The court ordered Fredrickson’s impounded vehicle to be sold
and the proceeds used to reimburse the county for legal fees
due to the appointment of legal counsel and for court costs. In
the event the sale of the vehicle produced insufficient funds to
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STATE v. FREDRICKSON
Cite as 306 Neb. 81
cover the court costs and attorney fees, the court denied the
State’s request for further reimbursement from Fredrickson’s
savings and other available assets.
On June 4, 2019, Fredrickson was sentenced to a term of
20 to 38 years of incarceration. Fredrickson filed his notice
of appeal of his conviction and sentence on July 1, and filed
a pro se motion for appointment of appellate counsel the same
day. Along with his motion, Fredrickson filed a new financial
affidavit in which he claimed he had $10,000 to $14,000 in a
bank account that was to be used “solely for payments of child
support to maintain current status.” The affidavit stated this
child support was $200 per month.
The State filed an objection to Fredrickson’s alleged indi-
gent status. A hearing was held on Fredrickson’s motion for
appointment of appellate counsel and the State’s objection.
During the hearing, the State submitted a real estate trans-
fer statement concerning a property in which Fredrickson
was indicated to have a one-half interest and which sold for
$180,000 in July 2018.
Fredrickson conceded that the property, which he owned
with his father, was sold and that he received about $80,000
from the sale. Fredrickson explained that he was incarcerated
during and since the sale of the property so the person holding
his power of attorney had made expenditures from the sale’s
funds for “any financial things that I would have had to have
taken care of, anything like that, children, holidays, whatever,
has been taken care of out of that.” Fredrickson testified that
the $10,000 to $14,000 listed on his financial affidavit was what
was left of the $80,000 after those expenses. Fredrickson also
clarified that his child support obligation may have changed
since the filing of his affidavit and is at least $100 per month
and at most $200 per month.
On July 12, 2019, the district court entered an order finding
Fredrickson was entitled to court-appointed appellate counsel
according to the information contained within his financial
affidavit. As such, the court appointed to Fredrickson appel-
late counsel at the county’s expense. The court explained that
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STATE v. FREDRICKSON
Cite as 306 Neb. 81
Fredrickson was advised, in the event the financial affidavit
contained incorrect information, he may be ordered to reim-
burse the county for his appellate attorney fees.
On July 30, 2019, the State filed a notice of appeal of the
July 12 order finding Fredrickson entitled to court-appointed
appellate counsel. In State v. Fredrickson (Fredrickson I), 2
we held that we had no jurisdiction over the State’s interlocu-
tory appeal, as it did not affect a substantial right. During the
pendency before our court of the State’s interlocutory appeal
from the court’s order finding Fredrickson entitled to court-
appointed appellate counsel, Fredrickson filed, on October 11,
an application to proceed with his appeal from the conviction
and sentence in forma pauperis. This application contained the
same information presented in Fredrickson’s affidavit at the
July hearing, along with a copy of the court’s July 12 order
appointing appellate counsel.
On October 15, 2019, the court, without a hearing, granted
Fredrickson’s application to file his appeal in forma pauperis,
stating that in accordance with § 29-2306, Fredrickson was not
required to pay docket fees or costs incurred in the production
of the transcript and bill of exceptions.
On November 14, 2019, the State filed a notice of appeal
from the October 15 order allowing Fredrickson to proceed
in forma pauperis, which is the purported appeal presently
before us. The State filed a “Motion to Vacate and Objection
to Defendant’s Application to Proceed in Forma Pauperis”
that same date. The State’s motion claimed that the State was
unaware of the application and did not receive an opportunity
to present evidence showing that Fredrickson could afford the
costs of his appeal. The district court, after a hearing where the
parties stipulated that the evidence of indigency would have
been the same as was provided to the trial court at a previous
hearing, found Fredrickson indigent and ordered the county
responsible for payment of attorney fees, filing fee, bill of
exceptions, and other costs of the action.
2
State v. Fredrickson, 305 Neb. 165, 939 N.W.2d 385 (2020).
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306 Nebraska Reports
STATE v. FREDRICKSON
Cite as 306 Neb. 81
ASSIGNMENTS OF ERROR
The State assigns as error the district court’s approval
of Fredrickson’s application to proceed in forma pauperis.
Specifically, the State argues that the district court abused its
discretion by ordering the county to pay Fredrickson’s appeal
costs when Fredrickson did not provide evidence of his finan-
cial situation to the county court, he acquired an additional
$80,000 of cash during the trial, and his affidavit indicated he
had sufficient assets to pay for his appeal.
STANDARD OF REVIEW
[1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a
trial court. 3
ANALYSIS
[2-4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 4 In order to have jurisdic-
tion over an appeal, appellate jurisdiction must be specifically
provided by the Legislature. 5 For an appellate court to acquire
jurisdiction of an appeal, the party must be appealing from a
final order or a judgment. 6
[5,6] In a criminal case, the judgment from which the appel-
lant may appeal is the sentence, and every direction of the court
made or entered in writing and not included in a judgment is
an order. 7 Thus, the order granting Fredrickson’s application to
proceed in forma pauperis was an order.
[7] When the statutory scheme governing the proceedings
does not specifically address the finality of orders issued
3
Fredrickson I, supra note 2.
4
Id.
5
Id.
6
Id. See Neb. Rev. Stat. § 25-1911 (Reissue 2016).
7
Fredrickson I, supra note 2.
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STATE v. FREDRICKSON
Cite as 306 Neb. 81
therein, final orders are governed by the general definitions set
forth by Neb. Rev. Stat. § 25-1902 (Supp. 2019). 8 In order to
be a final order which an appellate court may review, the lower
court’s order must (1) affect a substantial right and determine
the action and prevent a judgment, (2) affect a substantial right
and be made during a special proceeding, (3) affect a substan-
tial right and be made on summary application in an action
after a judgment is rendered, or (4) deny a motion for summary
judgment which was based on the assertion of sovereign immu-
nity or the immunity of a government official. 9
The statutes governing in forma pauperis proceedings 10 spe-
cifically provide a defendant whose application is denied the
right to appeal. 11 Section 25-2301.02 provides that if an objec-
tion to the defendant’s application to proceed in forma pauperis
is sustained, the party filing the application shall have 30 days
after the ruling or issuance of the statement to proceed with an
action or appeal upon payment of fees, costs, or security not-
withstanding the subsequent expiration of any statute of limita-
tions or deadline for appeal. Section 25-2301.02 also provides
for the means of obtaining a transcript for the appeal and the
appellate court’s standard of review:
In the event that an application to proceed in forma
pauperis is denied and an appeal is taken therefrom, the
aggrieved party may make application for a transcript of
the hearing on in forma pauperis eligibility. Upon such
application, the court shall order the transcript to be pre-
pared and the cost shall be paid by the county in the same
manner as other claims are paid. The appellate court shall
review the decision denying in forma pauperis eligibility
de novo on the record based on the transcript of the hear-
ing or the written statement of the court.
8
See Priesner v. Starry, 300 Neb. 81, 912 N.W.2d 249 (2018).
9
Fredrickson I, supra note 2. See Neb. Rev. Stat. § 25-1902 (Supp. 2019).
10
Neb. Rev. Stat. § 25-2301 et seq. (Reissue 2016).
11
See § 25-2301.02.
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STATE v. FREDRICKSON
Cite as 306 Neb. 81
Notably absent from the statutes governing in forma pau-
peris is any reference to the ability to appeal the approval of
such an application. 12 Assuming without deciding here that the
Legislature did not intend to deny any opportunity to appeal
from an order granting a defendant’s application to proceed in
forma pauperis with a criminal appeal, the order appealed from
here is not final under § 25-1902. This is because the order
granting Fredrickson’s application to proceed in forma pauperis
did not affect with finality a substantial right.
[8-11] The first step in a final order analysis under § 25-1902
is to determine whether the order affected a substantial right
of one or more parties. The inquiry focuses on whether the
right at issue is substantial and whether the court’s order has
a substantial impact on that right. 13 Whether an order affects a
substantial right depends on whether it affects with finality the
rights of the parties in the subject matter. 14 It also depends on
whether the right could otherwise effectively be vindicated. 15
An order affects a substantial right when the right would be
significantly undermined or irrevocably lost by postponing
appellate review. 16
In Fredrickson I, we stated that because the county filed a
notice of appeal as though it were taking an ordinary appeal
under § 25-1902 and Neb. Rev. Stat. § 25-1912 (Cum. Supp.
2018), we would analyze jurisdiction according to the ordi-
nary principles of appellate jurisdiction just recited. We then
explained that the order finding that Fredrickson was indigent
and entitled to appellate counsel did not affect a substantial
right and thus was not final under § 25-1902.
We reasoned that the order did not affect a substantial right
because it did not obligate the county to pay any specific
12
§ 25-2301 et seq.
13
Fredrickson I, supra note 2.
14
Id.
15
Id.
16
Id.
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STATE v. FREDRICKSON
Cite as 306 Neb. 81
amount or set a deadline for payment—matters that would
be subject to future proceedings addressing the question of
reasonable attorney fees. We also noted that the order was not
a final determination obligating the payment of Fredrickson’s
appellate attorney fees, because Fredrickson’s indigency can
subsequently be challenged through Neb. Rev. Stat. § 29-3908
(Reissue 2016), which provides:
Whenever any court finds subsequent to its appoint-
ment of . . . counsel to represent a felony defendant that
its initial determination of indigency was incorrect or that
during the course of representation by appointed counsel
the felony defendant has become no longer indigent, the
court may order such felony defendant to reimburse the
county for all or part of the reasonable cost of providing
such representation.
Thus, we explained that “even though the order appointing
appellate counsel specified that it is at the [c]ounty’s expense,
the State is able to seek reconsideration and can challenge
the underlying finding of indigency and recoup any subse-
quently expended funds from the defendant.” 17 We rejected the
county’s argument that such an avenue would not effectively
vindicate its rights because it is difficult to recoup money from
incarcerated criminal defendants. We said:
Although recovery of attorney fees may be, at times, dif-
ficult, the Nebraska Legislature has specified the process
for determination of the [c]ounty’s rights and recovery
of funds when there is a subsequent modification of an
indigency finding. This argument is insufficient to show a
significant undermining of the State’s right. 18
Similarly, the order granting Fredrickson’s application to
proceed in forma pauperis with his appeal was not a final
determination of the amount the county must pay in fees and
costs for Fredrickson’s appeal. Pursuant to § 25-2301, “[i]n
17
Id. at 173, 939 N.W.2d at 391.
18
Id. at 174, 939 N.W.2d at 391.
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STATE v. FREDRICKSON
Cite as 306 Neb. 81
forma pauperis” simply means “permission given by the court
for a party to proceed without prepayment of fees and costs
or security.”
The mandate setting forth the total amount of such fees
or costs due has not yet been issued in Fredrickson’s direct
appeal. Until the county is ordered to pay a specific sum,
its substantial rights have not been affected. Thus, the order
granting Fredrickson’s application to proceed in forma pau-
peris was not a final order and we lack jurisdiction to consider
this appeal.
We also note for completeness that whether the in forma
pauperis order was properly granted or not does not affect the
perfection of Fredrickson’s criminal appeal. We have explained
that an in forma pauperis appeal is perfected when the appel-
lant timely files a notice of appeal and an affidavit of poverty. 19
Thus, the question of whether the application was properly
granted may alter who is responsible for some of the fees
associated with the appeal, but it cannot divest the court of
jurisdiction to consider Fredrickson’s appeal of his sentence. 20
We find that appeals from an order approving an application to
proceed in forma pauperis and appeals of awards of attorney
fees should be treated similarly in this regard. 21
CONCLUSION
The order granting Fredrickson the right to proceed with his
criminal appeal in forma pauperis is not a judgment nor is it a
final order. Accordingly, we lack jurisdiction to consider this
appeal and it is dismissed.
Appeal dismissed.
19
State v. Jones, 264 Neb. 671, 650 N.W.2d 798 (2002). See, also, Glass v.
Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).
20
See, generally, Jones, supra note 19; In re Interest of N.L.B., 234 Neb.
280, 450 N.W.2d 676 (1990); In re Interest of Noelle F. & Sarah F., 3 Neb.
App. 901, 534 N.W.2d 581 (1995).
21
In re Claim of Rehm and Faesser, 226 Neb. 107, 410 N.W.2d 92 (1987).