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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. JENSEN

Cite as 299 Neb. 791

State of Nebraska, appellee, v.

Victor Jensen, appel

___ N.W.2d ___

Filed April 26, 2018. No. S-17-835.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Judgments: Appeal and Error. Both the district court and a 

higher appellate court generally review appeals from the county court 

for error appearing on the record. When reviewing a judgment for 

errors appearing on the record, an appellate court’s inquiry is whether 

the decision conforms to the law, is supported by competent evidence, 

and is neither arbitrary, capricious, nor unreasonable. But an appellate court independently reviews questions of law in appeals from the 

county court.

3. Records: Appeal and Error. An appellant has the responsibility to 

present a record that permits appellate review of the issue assigned 

as error.

Appeal from the District Court for Burt County, John E

Samson, Judge, on appeal thereto from the County Court fo

Burt County, C. Matthew Samuelson, Judge. Judgment 

District Court affirmed.

Victor Jensen, pro se.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Miller-Lerman, Cassel, Stacy, and Funke, JJ., an

and Noakes, District Judges.

Nebraska Supreme Court Online Library

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

06/15/2018 12:12 AM CDT
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STATE v. JENSEN

Cite as 299 Neb. 791

Cassel, J.

INTRODUCTION

Victor Jensen had been allowed to proceed in forma pauperis (IFP) at various times throughout the pendency of his 

criminal case, which commenced in 2011. In 2016, he sought 

to have the county “pay” or waive his probation fees and court 

costs. The county court denied the request, and the district 

court affirmed. Because Jensen did not present evidence as to 

his financial condition at the time of the hearing on his motion 

and the record is inadequate to show that the county court 

erred in not waiving the court costs, we affirm the district 

court’s decision.

BACKGROUND

Proceedings in County 

In 2014, the county court convicted Jensen of certain crimes. 

It imposed a jail sentence, ordered Jensen to pay $3,000 in 

fines and $39.85 in costs, sentenced him to 24 months’ probation, and ordered him to pay $600 in probation fees. After 

Jensen’s appeals were resolved and jurisdiction returned to 

the county court, Jensen apparently filed a motion on May 

25, 2016, seeking payment of four items, including probation 

fees and court costs. This motion is not in our record, but it is 

referred to in a county court order.

On December 20, 2016, and January 24, 2017, the county 

court evidently held hearings. Our bill of exceptions does not 

contain a verbatim transcription of those hearings; instead, 

it includes exhibits offered at the December 2016 hearing. 

According to a subsequent order of the county court, it received 

the exhibits. Many of the exhibits were poverty affidavits and 

filings to proceed IFP at various times during the pendency of 

the case and appeals therefrom. The evidence contained a July 

2012 financial affidavit and order permitting Jensen to proceed 

IFP and directing that costs not already paid as of that date be 

paid by the county. It contained a January 2013 affidavit of 

poverty and order sustaining Jensen’s motion to appeal IFP to 
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STATE v. JENSEN

Cite as 299 Neb. 791

this court. The evidence also contained an August 2014 poverty affidavit and order by the county court allowing Jensen to 

prosecute an appeal IFP to the district court. And the evidence 

reflects that a February 2015 order granted Jensen’s request to 

proceed IFP on appeal.

On January 24, 2017, the county court entered a journal 

entry and order concerning the motion for fees. As relevant to 

this appeal, the court denied Jensen’s requests for a $600 payment for probation fees. The court also denied Jensen’s request 

for $39.85 in court costs, stating that the court “believes this 

amount was not included in the District Court’s Order to proceed [IFP].”

Proceedings in District

Jensen appealed to the district court. In a statement of errors, 

he claimed that the county court erred by denying “waver/

payment of probation fees” and by not “wavering/paying all 

court costs.”

During a hearing on Jensen’s appeal, Jensen directed the 

court to a 2012 order granting his affidavit and application to 

proceed IFP. The court observed that the order and financial 

affidavit predated the county court order at issue by 41⁄2 years. 

The court inquired whether there was any evidence “more 

current that would show [Jensen was] still indigent back in 

January of 2017.” Jensen confirmed that there was no new 

financial affidavit at the time of that hearing. The district court 

affirmed the county court’s order.

Jensen filed a timely appeal, and we moved the case to 

our docket.1

ASSIGNMENTS OF ERROR

Jensen assigns that the district court erred in (1) using 

January 24, 2017, to determine his indigency; (2) not finding him to be indigent; (3) finding insufficient evidence to 

1 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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STATE v. JENSEN

Cite as 299 Neb. 791

require the county to pay his probation fees; and (4) finding 

insufficient evidence to require the county to waive or pay his 

court costs.

STANDARD OF REVIEW

[1] In an appeal of a criminal case from the county court, the 

district court acts as an intermediate court of appeals, and its 

review is limited to an examination of the record for error or 

abuse of discretion.2

[2] Both the district court and a higher appellate court generally review appeals from the county court for error appearing 

on the record. When reviewing a judgment for errors appearing on the record, an appellate court’s inquiry is whether the 

decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 

But an appellate court independently reviews questions of law 

in appeals from the county court.3

ANALYSIS

Jensen argues that the district court erred in using the date 

of January 24, 2017, to determine whether he was indigent and 

in finding that he was not indigent. Jensen mischaracterizes 

the district court’s actions.

The district court, acting as an intermediate court of appeal, 

was limited in its review to an examination of the record for 

error or abuse of discretion.4 Thus, it was compelled to review 

the record before the county court at the time of its January 

24, 2017, order to determine whether the county court erred 

in denying Jensen’s request for waiver of probation fees and 

costs. The district court made no finding that indigency was 

determined on that date or that Jensen was not indigent. 

Instead, the district court affirmed the county court’s order 

concerning probation fees and court costs.

2 State v. Todd, 296 Neb. 424, 894 N.W.2d 255 (2017).

3 Id.

4 See id.
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STATE v. JENSEN

Cite as 299 Neb. 791

Jensen’s brief directs us to two statutes, but they have 

not gone into effect. He argues that under Neb. Rev. Stat. 

§§ 29-2206 and 29-2208 (Supp. 2017), a sentencing judge 

does not need a separate hearing to determine indigency. But 

because those statutes have an operative date of July 1, 2019, 

they have no application here.

[3] Jensen failed to produce evidence to show indigency at 

the time his request was heard. An appellant has the responsibility to present a record that permits appellate review of the 

issue assigned as error.5 Although Jensen produced financial 

affidavits and orders allowing him to proceed IFP at various times between 2012 and 2015, he supplied no evidence 

to show his financial condition at the time of the hearings in 

December 2016 and January 2017. It is Jensen’s financial condition at the time his request was heard that is of importance. 

If, for instance, Jensen had recently become a millionaire, it 

would be preposterous to suggest that he should be excused 

from paying probation fees because he earlier had been a 

pauper. We note that our own court rule requires an application to proceed IFP and accompanying poverty affidavit to be 

executed no more than 45 days prior to the filing of the notice 

of appeal.6 The stale financial affidavits and earlier orders 

allowing Jensen to proceed IFP are inadequate to show his 

financial condition at the time of the hearings.

For much the same reason, Jensen failed to demonstrate 

that his probation fee should be waived. Neb. Rev. Stat. 

§ 29-2262.06(4) (Reissue 2016) states:

The court shall waive payment of the monthly probation 

programming fees in whole or in part if after a hearing 

a determination is made that such payment would constitute an undue hardship on the offender due to limited 

income, employment or school status, or physical or mental handicap. Such waiver shall be in effect only during 

5 See State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).

6 See Neb. Ct. R. App. P. § 2-101(B)(4) (rev. 2015).
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STATE v. JENSEN

Cite as 299 Neb. 791

the period of time that the probationer or participant in a 

non-probation-based program or service is unable to pay 

his or her monthly probation programming fee.

But the record before us contains no evidence that payment 

of the monthly probation fee would constitute an undue hardship on Jensen. Evidence that courts had previously allowed 

Jensen to proceed IFP simply has no bearing on whether he 

was unable to pay a monthly probation fee in January 2017.

The inadequate record also dooms Jensen’s claim regarding 

court costs. He argues that because he had been allowed to 

proceed IFP, the county should pay or waive the court costs of 

$39.85. The parties agree that there is nothing to identify the 

costs. An order contains a notation of $31 for “Court Costs” 

and $8.85 for “Other.” In denying Jensen’s request, the county 

court stated that it believed those costs were not included in 

the district court’s order to proceed IFP. Jensen has failed to 

present a record to demonstrate that the county court’s conclusion was erroneous. Accordingly, the district court did not err 

in affirming the county court’s order.

CONCLUSION

Because the record fails to demonstrate that payment of the 

monthly probation fee would constitute an undue hardship on 

Jensen or that the county should pay or waive $39.85 in court 

costs, the district court did not err in affirming the county 

court’s denial of Jensen’s requests to waive probation fees 

and court costs. We therefore affirm the district court’s order 

affirming the order of the county court.

Affirmed

Heavican, C.J., not participati