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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 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.

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 criminal 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/28/2020 09:09 AM CDT
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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 substantial 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 defendant 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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STATE v. FREDRICKSON

Cite as 306 Neb. 81

BACKGROUND

Richard A. Fredrickson was charged by amended information 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 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.

On June 4, 2019, immediately prior to sentencing, a hearing 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 indigent 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 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 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 appellate 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 reimburse 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 interlocutory 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 courtappointed 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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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 financial 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 jurisdiction 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 appellant 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 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. 9

The statutes governing in forma pauperis proceedings 10 specifically provide a defendant whose application is denied the 

right to appeal. 11 Section 25-2301.02 provides that if an objection 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 notwithstanding the subsequent expiration of any statute of limitations 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 prepared 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 hearing 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

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Notably absent from the statutes governing in forma pauperis 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 ordinary 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 appointment 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 subsequently 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, difficult, 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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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 pauperis 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 appellant 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).