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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. MELTON

Cite as 308 Neb. 159

State of Nebraska, appellee, v. 

Shane R. Melton, appellant.

___ N.W.2d ___

Filed January 15, 2021. Nos. S-19-1179 through S-19-1183.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

that does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent of the lower court’s decision.

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. Judgments: Time: Appeal and Error. Pursuant to Neb. Rev. Stat. 

§ 25-1912(1) (Cum. Supp. 2018), a notice of appeal must be filed, and 

the required docket fee deposited with the clerk of the district court, 

within 30 days after the entry of such judgment.

4. Jurisdiction: Appeal and Error. An appeal is deemed perfected and 

the appellate court shall have jurisdiction of the cause when such notice 

of appeal has been filed and the required docket fee is deposited in the 

office of the clerk of the district court.

5. Jurisdiction: Affidavits: Fees: Appeal and Error. When a party seeks 

to appeal in forma pauperis, a poverty affidavit serves as a substitute 

for the docket fee otherwise required upon appeal. As such, an in forma 

pauperis appeal is perfected when the appellant timely files a notice of 

appeal and a proper affidavit of poverty.

6. Criminal Law: Sentences: Judgments: Appeal and Error. For 

purposes of appeal in a criminal case, it is the sentence which is 

the judgment.

7. Criminal Law: Sentences: Judgments. After a criminal sentence is 

pronounced in open court, the judgment is rendered when the written 

sentencing order is signed by the judge, and the judgment is entered 

when the clerk of the court places the file stamp on the judgment.

Nebraska Supreme Court Online Library

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

04/09/2021 08:09 AM CDT
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STATE v. MELTON

Cite as 308 Neb. 159

8. ____: ____: ____. In a criminal case, the entry of judgment occurs 

when the signed sentencing order is file stamped by the clerk of 

the court.

9. Affidavits: Fees: Time: Appeal and Error. In order to vest the appellate courts with jurisdiction, a poverty affidavit must be filed within 

the time that the docket fee would otherwise have been required to 

be deposited.

10. Criminal Law: Statutes. Where a criminal procedure is not authorized 

by statute, it is unavailable to a defendant in a criminal proceeding.

11. Criminal Law: Appeal and Error. When a criminal defendant files 

a motion that is not authorized and therefore is unavailable under 

Nebraska criminal procedure, the motion is a procedural and legal nullity, and any court order adjudicating such a motion presents nothing for 

appellate review.

Appeals from the District Court for Lincoln County: 

Michael E. Piccolo, Judge. Appeals dismissed.

Martin J. Troshynski for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

In these consolidated criminal appeals, Shane R. Melton 

primarily challenges the district court’s refusal to modify his 

criminal sentences after the sentencing hearing. We do not 

reach the merits of his arguments, because we conclude his 

appeals must be dismissed for lack of jurisdiction.

FACTS

Following a string of motor vehicle thefts and high-speed 

police chases that occurred in August 2018, eight separate 

criminal cases were filed against Melton in the district court 

for Lincoln County. Pursuant to a plea agreement, the State 

dismissed three of the cases in their entirety, and in the remaining five cases, Melton entered no contest pleas to some counts 
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STATE v. MELTON

Cite as 308 Neb. 159

and the State dismissed others. Ultimately, the court accepted 

Melton’s pleas and found him guilty of seven felonies.

At the sentencing hearing on October 28, 2019, the court 

pronounced prison sentences on all seven convictions. The 

court ordered some of the prison sentences to run consecutively, and some to run concurrently. After all of the sentences 

were pronounced, but before the parties left the courtroom, the 

State asked for clarification on whether the license suspensions 

imposed in connection with some of the convictions were to 

run consecutively or concurrently to one another. The court 

replied that the license suspensions would all run concurrently. 

No other clarification was requested.

Approximately 2 weeks after the sentencing hearing, 

on November 12, 2019, signed sentencing orders were file 

stamped and entered by the clerk of the court in each of the 

five cases. As relevant to the issues on appeal, the sentencing orders reflected that some of the prison sentences were 

ordered to run consecutively, and others were ordered to run 

concurrently.

Several weeks after the sentencing hearing, Melton’s attorney was told that someone overheard the sentencing judge 

telling another judge that he had mistakenly ordered some of 

Melton’s sentences to run consecutively, when he had intended 

them all to run concurrently. On November 20, 2019, Melton’s 

attorney wrote a letter to the sentencing judge recounting what 

he had learned. The letter, on which the county attorney was 

copied, stated that Melton was “filing a motion to modify” his 

sentences, requesting that all sentences be run concurrently. No 

motions were subsequently filed by Melton, but the trial court 

treated the November 20 letter as a “formal Motion to Modify 

the Court’s sentences imposed on October 28, 2019.”

On November 21, 2019, the sentencing judge entered identical orders in each of the five criminal cases, attaching and 

incorporating the letter from Melton’s counsel. The judge 

generally agreed with the statements contained in the letter, 

and explained:
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STATE v. MELTON

Cite as 308 Neb. 159

The Court realized the mispronouncement had occurred 

after the Court imposed the sentences and after 

[Melton] was removed from the courtroom. Once this 

matter was discovered, the Court immediately conferenced with another district court judge to determine the 

legal options, if any, available to the Court.

The court concluded that it lacked authority to modify the 

sentences, citing the rule from State v. Lessley. 1 In Lessley, 

we held the circumstances under which a judge may correct 

an inadvertent mispronouncement of a sentence are limited 

to those instances in which it is clear the defendant has not 

yet left the courtroom; it is obvious that the judge, in correcting his or her language, did not change in any manner the 

sentence originally intended; and no written notation of the 

inadvertently mispronounced sentence was made in the records 

of the court. In identical orders entered November 21, the 

court denied Melton’s motion to modify the sentences in all 

five cases.

On November 26, 2019, Melton filed a notice of appeal and 

a motion to proceed in forma pauperis in all five cases. On 

December 16, Melton filed a notarized poverty affidavit in all 

five cases, after which the Nebraska Court of Appeals consolidated the appeals. We subsequently granted Melton’s petition 

to bypass.

ASSIGNMENTS OF ERROR

Melton’s brief assigns three errors, two of which challenge the overruling of his motions to modify the sentences, 

and one of which challenges the sentence imposed on one 

conviction.

STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law, 

1 State v. Lessley, 301 Neb. 734, 919 N.W.2d 884 (2018).
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STATE v. MELTON

Cite as 308 Neb. 159

which requires the appellate court to reach a conclusion independent of the lower court’s decision. 2

ANALYSIS

[2] 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 The State argues that 

appellate jurisdiction was not perfected within 30 days of the 

entry of the judgment, decree, or final order being appealed 

from 4 and that we therefore must dismiss Melton’s appeals. 

We agree.

[3,4] Section 25-1912(1) governs appeals from “judgments 

and sentences upon convictions for felonies and misdemeanors” and provides that a notice of appeal must be filed, and the 

required docket fee deposited, “in the office of the clerk of the 

district court in which such judgment, decree, or final order 

was rendered” within 30 days after the “entry of such judgment.” An appeal is “deemed perfected and the appellate court 

shall have jurisdiction of the cause when such notice of appeal 

has been filed and [the required docket fee is] deposited in the 

office of the clerk of the district court.” 5

[5] In lieu of depositing the required docket fee, Neb. Rev. 

Stat. § 29-2306 (Reissue 2016) allows a criminal defendant 

to request to proceed in forma pauperis on appeal. 6 When a 

defendant does so, “a poverty affidavit serves as a substitute 

for the docket fee otherwise required upon appeal,” and an in 

forma pauperis appeal is “perfected when the appellant timely 

files a notice of appeal and a proper affidavit of poverty.” 7

2 State v. Roberts, 304 Neb. 395, 934 N.W.2d 845 (2019).

3 State v. Fredrickson, 306 Neb. 81, 943 N.W.2d 710 (2020).

4 See Neb. Rev. Stat. § 25-1912(1) (Cum. Supp. 2018).

5 § 25-1912(4).

6 See, also, id.

7 State v. Ruffin, 280 Neb. 611, 614, 789 N.W.2d 19, 22 (2010). See, In re 

Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006); State v. 

Parmar, 255 Neb. 356, 586 N.W.2d 279 (1998).
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STATE v. MELTON

Cite as 308 Neb. 159

[6] For purposes of appeal in a criminal case, it is the 

sentence which is the judgment. 8 Here, the court pronounced 

sentence in open court on October 28, 2019, but the written sentencing orders were not filed until November 12. Our 

record does not reveal the reason for the significant delay 

between the pronouncement of sentence and the filing of the 

written sentencing orders. But for a variety of reasons, not 

the least of which is the potential for confusion over when 

the appeal time starts to run, we disapprove of the practice of 

entering the written sentencing order on a date other than when 

the sentence is pronounced. 9

In a case like this, where there is a delay between the pronouncement of sentence and the filing of the written sentencing 

orders, questions can arise as to when judgment was entered 

for purposes of appeal. We acknowledge some variance in our 

cases as to when the “entry of judgment” occurs in a criminal 

case. Some of our cases have stated broadly that in a criminal 

case, the entry of judgment occurs with the imposition of a 

sentence. 10 Other cases have recognized that a criminal judgment is not final for purposes of appeal until a file-stamped 

sentencing order is entered. 11 We take this opportunity to reconcile our case law on this important point.

Neb. Rev. Stat. § 25-1301 (Cum. Supp. 2020) governs 

both the rendition and the entry of judgments. Currently, that 

8 See, State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008); State v. Foster, 

239 Neb. 598, 476 N.W.2d 923 (1991).

9 See, e.g., State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).

10 State v. Arizola, 295 Neb. 477, 890 N.W.2d 770 (2017); State v. Yuma, 

286 Neb. 244, 835 N.W.2d 679 (2013); State v. Lamb, 280 Neb. 738, 789 

N.W.2d 918 (2010).

11 See, Foster, supra note 8; State v. McCracken, 248 Neb. 576, 537 N.W.2d 

502 (1995), abrogated on other grounds, State v. Thomas, 262 Neb. 985, 

637 N.W.2d 632 (2002), overruled on other grounds, State v. Vann, 306 

Neb. 91, 944 N.W.2d 503 (2020). See, also, State v. Brown, 12 Neb. App. 

940, 687 N.W.2d 203 (2004); State v. Wahrman, 11 Neb. App. 101, 644 

N.W.2d 572 (2002).
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statute defines the rendition of a judgment as “the act of the 

court, or a judge thereof, in signing a single written document stating all of the relief granted or denied in an action.” 12

The “entry of a judgment” occurs “when the clerk of the 

court places the file stamp and date upon the judgment,” and 

for purposes of determining the time for appeal, “the date 

stamped on the judgment, decree, or final order shall be the 

date of entry.” 13

[7] In the legal vernacular of § 25-1301, after a criminal 

sentence is pronounced in open court, the “rendition” of judgment occurs when the written sentencing order is signed by 

the judge, and the “entry” of judgment occurs when the clerk 

of the court places the file stamp on the judgment. This court 

and the Court of Appeals have generally relied on § 25-1301 

when holding that a criminal judgment is not final for purposes 

of appeal until a file-stamped sentencing order is entered by 

the clerk. 14

But in several criminal cases since 2010, we have stated 

that the entry of judgment occurs with the imposition of a 

sentence. 15 This language appears to have originated in State 

v. Lamb,

 16 a case where we were determining the point at 

which a criminal defendant was no longer participating in 

criminal proceedings under Neb. Rev. Stat. § 60-6,197.09 

(Cum. Supp. 2008). We reasoned that a “proceeding” in that 

context included “‘“all acts and events between the time 

of commencement and the entry of judgment.”’” 17 We then 

12 § 25-1301(2).

13 § 25-1301(3).

14 See, Foster, supra note 8 (referencing § 25-1301 for proposition that 

judgment is rendered when some written notation thereof is made in 

record); McCracken, supra note 11 (same); Brown, supra note 11 (applying 

§ 25-1301 and finding no final judgment absent file-stamped sentencing 

order); Wahrman, supra note 11 (same).

15 Arizola, supra note 10; Yuma, supra note 10; Lamb, supra note 10.

16 Lamb, supra note 10.

17 Id. at 745, 789 N.W.2d at 925.
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stated that “[i]n a criminal case, entry of judgment occurs with 

the imposition of a sentence,” 18 and we went on to find that 

the imposition of the sentence concluded the criminal proceedings. In State v. Arizola 19 and State v. Yuma,

 20 we repeated the 

statement that entry of judgment occurs with the imposition 

of the sentence. But none of those cases involved a situation 

where the pronouncement of sentence and the entry of judgment occurred on different days. To the extent Arizola, Yuma, 

and Lamb can be read to suggest the time to appeal a criminal 

judgment begins to run from the date on which sentence is 

imposed or pronounced, rather than from the date on which 

the clerk of the court file stamps the sentencing order, we dis

approve of such a reading. 21

[8] Recently, in State v. Hartzell,

 22 we held that a notice of 

appeal which had been filed after the pronouncement of sentence, but several months before the signed sentencing order 

was filed, should be treated as filed on the date the sentencing order was file stamped by the clerk, which we described 

as “the entry of the judgment.” Hartzell is consistent with the 

general rule that, in a criminal case, the entry of judgment 

occurs when the signed sentencing order is file stamped by 

the clerk of the court. 23 This is the correct rule, and we apply 

it here.

The entry of judgment in Melton’s criminal cases occurred 

on November 12, 2019—the date on which the signed sentencing orders were file stamped by the clerk of the district 

court. Melton filed a timely notice of appeal and request to 

18 Id.

19 Arizola, supra note 10.

20 Yuma, supra note 10.

21 See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017) (holding 

that right to appeal is purely statutory and cannot be modified by court).

22 Hartzell, supra note 9, 304 Neb. at 89, 933 N.W.2d at 447.

23 See, § 25-1301; Foster, supra note 8; McCracken, supra note 11; Brown, 

supra note 11; Wahrman, supra note 11.
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proceed in forma pauperis in all five cases on November 26, 

but he did not file a notarized poverty affidavit in any case 

until December 16.

[9] In order to vest the appellate courts with jurisdiction, 

a poverty affidavit must be filed within the time that the 

docket fee would otherwise have been required to be deposited. 24 Because Melton did not perfect his appeals within 

30 days after the entry of judgment on November 12, 2019, 

this court is without jurisdiction to consider his appeals from 

those judgments.

We understand Melton’s appellate briefing to suggest that 

even if his poverty affidavits were not filed within 30 days 

of the November 12, 2019, judgments, they were filed within 

30 days after the court’s November 21 orders overruling his 

“motion to modify” the sentences. It is not clear whether 

Melton is suggesting that a “motion to modify” somehow 

terminates the time for appeal or whether he is suggesting 

the November 21 orders can be appealed separately from the 

criminal judgments. Either way, his position is meritless.

[10] There are certain motions which will terminate the 

time for filing an appeal in a civil case, 25 but this is not a civil 

case. Chapter 29 of the Nebraska Revised Statutes addresses 

criminal procedures, and it contains no statute authorizing a 

“motion to modify” a criminal sentence. Thus, to the extent 

Melton’s letter can fairly be characterized as a motion at all, 

it is not one which is recognized in Nebraska’s criminal procedure statutes. And where a criminal procedure is not authorized by statute, it is unavailable to a defendant in a criminal 

proceeding. 26 Melton points to nothing in our record that 

24 Ruffin, supra note 7. Accord, In re Interest of Fedalina G., supra note 7; 

Parmar, supra note 7.

25 See § 25-1912(3).

26 State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008); State v. 

Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999). See, also, State v. Miller, 

240 Neb. 297, 481 N.W.2d 580 (1992).
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would arguably toll the time for appealing from the entry of 

judgment in these criminal cases.

[11] Moreover, to the extent Melton suggests that the 

court’s November 21, 2019, orders overruling his unauthorized 

motions to modify are separately appealable, he is incorrect. 

When a criminal defendant files a motion that is not authorized 

and therefore is unavailable under Nebraska criminal procedure, the motion is a procedural and legal nullity, and any court 

order adjudicating such a motion presents nothing for appellate review. 27

CONCLUSION

In all five of Melton’s criminal cases, the 30-day time to 

appeal from the entry of judgment began to run on November 

12, 2019, when the signed sentencing orders were file stamped 

by the clerk. In each case, Melton filed a notice of appeal on 

November 26, but his poverty affidavit was not filed until 

December 16. Because his appeals were not perfected within 

30 days after the entry of judgment, they must be dismissed for 

lack of jurisdiction.

Appeals dismissed.

27 See Miller, supra note 26.