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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 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. 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 inferior 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 jurisdiction 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.

Nebraska Supreme Court Online Library

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

03/06/2020 01:07 AM CST
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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 subject 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 possession 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 district 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 affidavit, he had filled one out. The court instructed Fredrickson to 

complete a new form with his then-current financial information. 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 continued 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 vehicle 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 sentencing, Fredrickson continued to be represented by his courtappointed counsel.

Fredrickson subsequently appealed his conviction and sentence and filed a motion for appointment of appellate counsel. 

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 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 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 

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, 

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 courtappointed appellate attorney fees in excess of the amount 

received from the sale of Fredrickson’s impounded vehicle.
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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 provided 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 appellate 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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of the parties in an action.9 In this case, the State is appealing the district court’s finding that Fredrickson was indigent 

and entitled to appellate counsel for his appeal of his criminal 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 judgment but is, instead, an order. We thus turn to the question of 

whether this order was a final order sufficient to confer appellate jurisdiction.

[11] 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 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 substantial right in the action, it is unnecessary to evaluate the three 

categories individually unless the order affects a substantial 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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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 principles 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 determination 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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Further, the current order does not affect a substantial right 

of the State because it is not the final determination obligating 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 indigency 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, 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 finding 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 affidavit contained incorrect information, he may be ordered to reimburse 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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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 sufficient 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 difficult to recoup the money from incarcerated criminal defendants. 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 argument 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 jurisdiction 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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steps the State must take to make such an appeal.21 In explaining the additional filing requirements, the first sentence of 

§ 29-2315.01 states the State may take exception to “any ruling or decision.” However, § 29-2315.01 clarifies that these 

filings must occur after a final order by setting time limitations 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 filing 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.