State v. Fredrickson , 305 Neb. 165 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/08/2020 12:15 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FREDRICKSON
Cite as 305 Neb. 165
State of Nebraska, appellant, v.
Richard A. Fredrickson, appellee.
___ N.W.2d ___
Filed February 28, 2020. No. S-19-743.
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. Criminal Law: Right to Counsel: Appeal and Error. A trial court’s
determination of a defendant’s indigency, requiring court-appointed
counsel for a defendant in a criminal case, will be upheld on appeal,
unless the trial court has abused its discretion in such determination.
3. 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.
4. ____: ____. Appellate jurisdiction is the power and authority conferred
upon a superior court to reexamine and redetermine causes tried in infe-
rior courts.
5. Constitutional Law: Jurisdiction. The Nebraska Constitution confers
the Nebraska Supreme Court with only “such appellate jurisdiction as
may be provided by law.”
6. Courts: Jurisdiction: Legislature: Appeal and Error. In order to have
jurisdiction over an appeal, appellate jurisdiction must be specifically
provided by the Legislature.
7. Jurisdiction: Appeal and Error. An appellate court acquires no juris-
diction unless the appellant has satisfied the statutory requirements for
appellate jurisdiction.
8. 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.
9. Criminal Law: Judgments: Sentences: Appeal and Error. In a
criminal case, the judgment from which the appellant may appeal is
the sentence.
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
10. Judgments: Words and Phrases. Every direction of the court made or
entered in writing and not included in a judgment is an order.
11. 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.
12. ____: ____. Whether an order affects a substantial right focuses on
whether the right at issue is substantial and whether the court’s order has
a substantial impact on that right.
13. Final Orders. Whether an order affects a substantial right depends
on whether it affects with finality the rights of the parties in the sub-
ject matter.
14. ____. Whether an order affects a substantial right depends on whether
the right could otherwise effectively be vindicated.
15. 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.
Desirae M. Solomon, Deputy Washington County Attorney,
for appellant.
David V. Drew, of Drew Law Firm, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
The State of Nebraska, through the Washington County
Attorney’s office, appeals the district court’s order finding
Richard A. Fredrickson indigent and entitled to court-appointed
appellate counsel at the expense of Washington County (the
County). The State argues the court abused its discretion
because Fredrickson failed to adequately provide his financial
situation to the lower court, acquired undisclosed additional
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
funds during the pendency of the underlying action, and had
sufficient assets to pay for his legal counsel. Fredrickson,
in turn, argues that this court lacks jurisdiction to consider
the State’s appeal and that the district court did not abuse
its discretion. Because the court’s order finding Fredrickson
indigent and appointing counsel was neither a judgment nor
a final, appealable order, we lack jurisdiction and dismiss the
State’s appeal.
BACKGROUND
Fredrickson was charged by amended information with pos-
session of a deadly weapon, robbery, and use of a deadly
weapon to commit a felony for events occurring on April
11, 2018.
At his initial hearing before the county court on April 16,
2018, Fredrickson was advised of his rights, including his
right to counsel. In its journal entry and order, the county court
stated that Fredrickson was to file a poverty affidavit, that
Fredrickson was “adjudged indigent,” and that counsel was
appointed to represent Fredrickson at the County’s expense.
On the same date, the county court entered a separate order
restating its appointment of counsel. Fredrickson never filed
the poverty affidavit, and the case was moved to the dis-
trict court.
In district court, Fredrickson entered a no contest plea to
robbery in exchange for the State’s dismissing the remaining
counts. The State then 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 performed. The State
also filed a motion to dispose of property, requesting the sale
of Fredrickson’s impounded vehicle allegedly 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.
Immediately prior to sentencing, a hearing was held on the
State’s two motions. At the hearing, counsel for Fredrickson
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
alleged that although Fredrickson had failed to turn in the affi-
davit, he had filled one out. The court instructed Fredrickson to
complete a new form with his then-current financial informa-
tion. Under this affidavit, Fredrickson averred that his vehicle
was worth $9,000, which was the price he had originally paid
for it, and that 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 con-
tinued payment of child support.
After Fredrickson provided the completed financial affidavit,
the court took up the State’s motion for the sale of Fredrickson’s
vehicle. Fredrickson did not object to the vehicle’s sale, and the
court ordered that any money derived from the sale of the vehi-
cle be applied to court costs and as restitution to the County
for any of Fredrickson’s court-appointed attorney fees. The
court further ordered that any money received from the sale of
the vehicle in excess of the attorney fees be paid to the person
holding Fredrickson’s power of attorney and used for payment
of child support. In the event the sale of the vehicle produced
insufficient funds to 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.
After the hearing on the State’s motions, the court proceeded
to sentence Fredrickson to a term of incarceration. At sentenc-
ing, Fredrickson continued to be represented by his court-
appointed counsel.
Fredrickson subsequently appealed his conviction and sen-
tence and filed a motion for appointment of appellate counsel.
Along with his motion, Fredrickson filed a new financial affi-
davit in which he claimed he had $10,000 to $14,000 in a bank
account which 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 indigent status.
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
A hearing was held on Fredrickson’s motion for appoint-
ment of appellate counsel and the State’s objection. During
the hearing, the State submitted a real estate transfer 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 incarcer-
ated during and since the sale of the property so the per-
son 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 sup-
port 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
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,
the State filed a notice of appeal of the July 12 order.
ASSIGNMENTS OF ERROR
The State assigns, restated, that the district court abused
its discretion in declining to apply Fredrickson’s savings and
other available assets to reimburse the County for any court-
appointed appellate attorney fees in excess of the amount
received from the sale of Fredrickson’s impounded vehicle.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. FREDRICKSON
Cite as 305 Neb. 165
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.1
[2] A trial court’s determination of a defendant’s indigency,
requiring court-appointed counsel for a defendant in a criminal
case, will be upheld on appeal, unless the trial court has abused
its discretion in such determination.2
ANALYSIS
[3-7] 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 Appellate jurisdiction
is the power and authority conferred upon a superior court
to reexamine and redetermine causes tried in inferior courts.4
The Nebraska Constitution confers the Nebraska Supreme
Court with only “such appellate jurisdiction as may be pro-
vided by law.”5 In order to have jurisdiction over an appeal,
appellate jurisdiction must be specifically provided by the
Legislature.6 An appellate court acquires no jurisdiction unless
the appellant has satisfied the statutory requirements for appel-
late jurisdiction.7
[8-10] For an appellate court to acquire jurisdiction of an
appeal, the party must be appealing from a final order or a
judgment.8 A judgment is the final determination of the rights
1
State v. Coble, 299 Neb. 434, 908 N.W.2d 646 (2018).
2
State v. Richter, 225 Neb. 837, 408 N.W.2d 717 (1987).
3
Coble, supra note 1.
4
Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920
N.W.2d 268 (2018).
5
Neb. Const. art. V, § 2.
6
See Webb, supra note 4.
7
Id.
8
Id. See Neb. Rev. Stat. § 25-1911 (Reissue 2016).
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
of the parties in an action.9 In this case, the State is appeal-
ing the district court’s finding that Fredrickson was indigent
and entitled to appellate counsel for his appeal of his crimi-
nal conviction and sentence. In a criminal case, the judgment
from which the appellant may appeal is the sentence,10 and
every direction of the court made or entered in writing and
not included in a judgment is an order.11 Thus, the indigency
finding and appointment of appellate counsel is not a judg-
ment but is, instead, an order. We thus turn to the question of
whether this order was a final order sufficient to confer appel-
late jurisdiction.
[11] In order to be a final order which an appellate court
may review, the lower court’s order must (1) affect a substan-
tial 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 sum-
mary 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.12 Because the order at issue here was not
on a motion for summary judgment and all three remaining
categories of final orders under § 25-1902 affect a substan-
tial right in the action, it is unnecessary to evaluate the three
categories individually unless the order affects a substan-
tial right.13
[12-15] Numerous factors determine whether an order affects
a substantial right for purposes of appeal.14 The inquiry focuses
9
Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2018).
10
State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018).
11
See Webb, supra note 4.
12
See Neb. Rev. Stat. § 25-1902 (Supp. 2019).
13
See Mutual of Omaha Bank v. Watson, 301 Neb. 833, 920 N.W.2d 284
(2018).
14
In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019);
Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
on whether the right at issue is substantial and whether the
court’s order has a substantial impact on that right.15 Whether
an order affects a substantial right depends on whether it affects
with finality the rights of the parties in the subject matter.16 It
also depends on whether the right could otherwise effectively
be vindicated.17 An order affects a substantial right when the
right would be significantly undermined or irrevocably lost by
postponing appellate review.18
The County filed a notice of appeal on July 30, 2019, as
though it were taking an ordinary appeal under § 29-1902 and
Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), and we must
therefore analyze jurisdiction according to the ordinary prin-
ciples of appellate jurisdiction just recited.
The order finding Fredrickson indigent and entitled to
appellate counsel did not affect a substantial right. First, while
the order stated Fredrickson was entitled to the appointment of
appellate counsel at the County’s expense, it did not obligate
the County to pay any specific amount or set a deadline for
payment. Such determinations are to be the subject of future
proceedings addressing the question of reasonable attorney
fees. At that point, the State is entitled to object and seek
appellate review because the determination of attorney fees
and expenses of court-appointed counsel are the final deter-
mination of the County’s right to avoid expending its funds
on a defendant’s representation.19 The current order stating
the County may be obligated to pay some unknown amount
at some unknown future date does not substantially impact
the County.
15
In re Grand Jury of Douglas Cty., supra note 14.
16
Id.
17
Id.
18
Id.
19
See In re Claim of Rehm and Faesser, 226 Neb. 107, 410 N.W.2d 92
(1987).
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
Further, the current order does not affect a substantial right
of the State because it is not the final determination obligat-
ing the payment of Fredrickson’s appellate attorney fees. As
explained above, the State has the ability to contest requested
fees as they come before the court for approval. Additionally,
the State can challenge the finding of Fredrickson’s indi-
gency 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, even though the order appointing appellate counsel
specified that it is at the County’s expense, the State is able
to seek reconsideration and can challenge the underlying find-
ing of indigency and recoup any subsequently expended funds
from the defendant.
Prior to the appointment of appellate counsel, which is
the order at issue here, the State utilized this statutory right
to ask the district court to review its indigency finding from
the appointment of trial counsel in its motion to determine
defendant’s indigent status. Although the court did not modify
its previous indigency determination, it did order that the
State could sell Fredrickson’s vehicle and apply the money to
Fredrickson’s attorney fees.
Additionally, in the appointment of appellate counsel,
Fredrickson was advised that in the event the financial affida-
vit contained incorrect information, he may be ordered to reim-
burse the County for his appellate attorney fees. The State’s
motion to determine indigency and the court’s advisement
demonstrate our analysis that the initial finding of indigency
and appointing of appellate counsel at the County’s expense
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
was not the final determination of the State’s obligation to pay
for Fredrickson’s representation.
The State makes some argument that postponing the review
of the court’s indigency determination would undermine its
right to avoid paying attorney fees for individuals with suf-
ficient funds when they are initially determined indigent.
In making this argument, the State claims § 29-3908 is
insufficient to protect its rights because it would be diffi-
cult to recoup the money from incarcerated criminal defend­
ants. This argument is without merit. Although recovery
of attorney fees may be, at times, difficult, the Nebraska
Legislature has specified the process for determination of
the County’s rights and recovery of funds when there is a
subsequent modification of an indigency finding. This argu-
ment is insufficient to show a significant undermining of the
State’s right.
We also note that the finding of Fredrickson’s indigency
and the appointment of counsel does not affect any of
Fredrickson’s substantial rights. Although Fredrickson has a
right to counsel, the court’s order appointing counsel upheld
this right and Fredrickson’s right was not aggrieved. Because
Fredrickson was appointed counsel, his right to counsel was
not significantly undermined or irrevocably lost.20
Considering all of the above, the order finding Fredrickson
indigent and appointing appellate counsel at the County’s
expense did not affect a substantial right of the parties and was
not a final order for purposes of review. Thus, we lack juris-
diction to consider this appeal.
During oral argument, there was discussion as to whether
Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018) permits
the State to appeal orders of the court rather than only those
classified as final orders. This statute expresses an exception
to the general rule that the State cannot appeal an adverse
ruling in a criminal case and provides additional, required
20
See In re Grand Jury of Douglas Cty., supra note 14.
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STATE v. FREDRICKSON
Cite as 305 Neb. 165
steps the State must take to make such an appeal.21 In explain-
ing the additional filing requirements, the first sentence of
§ 29-2315.01 states the State may take exception to “any rul-
ing or decision.” However, § 29-2315.01 clarifies that these
filings must occur after a final order by setting time limita-
tions which begin to run “after the final order is entered in the
cause.” Therefore, § 29-2315.01 does not grant the State the
ability to appeal an order finding indigency and appointing
counsel prior to the issuance of a final order.
Because the order finding that Fredrickson is indigent and
entitled to court-appointed appellate counsel is not a judgment
or a final, appealable order, we decline to address whether we
also lack jurisdiction due to the State’s failing to meet the fil-
ing requirements of § 29-2315.01 and do not reach the merits
of the State’s assignments of error on appeal.
CONCLUSION
The district court’s order finding Fredrickson indigent and
appointing appellate counsel was not a judgment or a final,
appealable order. Accordingly, we lack jurisdiction to consider
this appeal and it is dismissed.
Appeal dismissed.
21
See § 29-2315.01.