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291 Nebraska Report

STATE v. SIMS

Cite as 291 Neb. 475

State of Nebraska, appellee, v.

Michael Joseph Sims, appella

___ N.W.2d ___

Filed July 24, 2015. Nos. S-14-931, S-14-1073.

1. Affidavits: Appeal and Error. A district court’s denial of in forma 

pauperis status under Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is 

reviewed de novo on the record based on the transcript of the hearing or 

written statement of the court.

2. Jurisdiction: Fees: Appeal and Error. An appeal shall be deemed perfected and the appellate court shall have jurisdiction of the cause when 

such notice of appeal has been filed and such docket fee deposited in the 

office of the clerk of the district court.

3. Affidavits: Costs: Fees: Appeal and Error. In lieu of the payment of 

costs and fees of litigation, in forma pauperis status may be obtained by 

appropriate application.

4. Affidavits: Costs: Fees: Limitations of Actions: Appeal and Error. 

Where an objection to in forma pauperis status 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.

Appeals from the District Court for Douglas County: Gary

B. Randall, Judge. Appeal in No. S-14-931 held under submission. Judgment in No. S-14-1073 affirm

Michael Joseph Sims, pro se.

Douglas J. Peterson, Attorney General, and George R. Love 

for appellee.
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291 Nebraska Report

STATE v. SIMS

Cite as 291 Neb. 475

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, an

Heavican, C

INTRODUCTION

The district court denied the application of Michael Joseph 

Sims to proceed in forma pauperis in his appeal from the 

denial of his earlier motion for postconviction relief. We find 

no error in the district court’s denial of in forma pauperis 

status, but give Sims 30 days in which to pay the statutory 

docket fee for the appeal docketed as case No. S-14-931. If the 

docket fee has not been paid within that time, the appeal will 

be dismissed.

Sims also appealed from the district court’s denial of his 

motion to proceed in forma pauperis (as distinct from his 

appeal on the merits of the litigation); that appeal is docketed as case No. S-14-1073. The judgment of that appeal 

is affirmed.

BACKGROUND

In 1998, Sims was convicted of first degree murder, 

attempted first degree murder, and two counts of use of a 

deadly weapon to commit a felony. His convictions and sentences were affirmed by this court on direct appeal.1

 Sims later 

filed a motion for postconviction relief, which was denied,2

and a second motion for postconviction relief, which was 

also denied.3

These current appeals are based upon Sims’ third motion 

for postconviction relief, which was filed on June 12, 2014. 

The district court denied this motion without an evidentiary 

hearing. Sims appealed. In lieu of the statutory docket fee, 

Sims filed a motion to proceed in forma pauperis on appeal. 

On its own motion, the district court denied Sims’ motion 

1 State v. Sims, 258 Neb. 357, 603 N.W.2d 431 (1999).

2 State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006).

3 State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).
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STATE v. SIMS

Cite as 291 Neb. 475

to proceed in forma pauperis. This appeal from the denial of 

Sims’ postconviction motion was docketed with this court as 

case No. S-14-931.

Following the denial of his motion to proceed in forma 

pauperis in the appeal docketed as case No. S-14-931, Sims 

filed an appeal from this denial. That appeal is docketed 

as case No. S-14-1073. Sims filed with the district court a 

motion to proceed in forma pauperis for the appeal docketed 

as case No. S-14-1073. That application was also denied. 

Sims has not appealed from that denial of in forma pauperis 

status. Sims’ appeals have been consolidated for argument 

and disposition.

Sims has not paid any docket fee in connection with either 

of these appeals.

ASSIGNMENTS OF ERROR

Sims assigns that the district court erred in (1) denying 

his motion to proceed in forma pauperis and (2) denying his 

motion for postconviction relief.

STANDARD OF REVIEW

[1] A district court’s denial of in forma pauperis status under 

Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de 

novo on the record based on the transcript of the hearing or 

written statement of the court.

ANALYSIS

Sims first assigns that the district court erred in denying 

his motion to proceed in forma pauperis in his appeal from 

the district court’s denial of Sims’ motion for postconviction relief.

Applications to proceed in forma pauperis are governed by 

§ 25-2301.02. That section provides:

(1) An application to proceed in forma pauperis shall 

be granted unless there is an objection that the party 

filing the application (a) has sufficient funds to pay 

costs, fees, or security or (b) is asserting legal positions 

which are frivolous or malicious. The objection to the 
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STATE v. SIMS

Cite as 291 Neb. 475

application shall be made within thirty days after the filing of the application or at any time if the ground for the 

objection is that the initial application was fraudulent. 

Such objection may be made by the court on its own 

motion or on the motion of any interested person. The 

motion objecting to the application shall specifically set 

forth the grounds of the objection. An evidentiary hearing 

shall be conducted on the objection unless the objection 

is by the court on its own motion on the grounds that the 

applicant is asserting legal positions which are frivolous 

or malicious. If no hearing is held, the court shall provide 

a written statement of its reasons, findings, and conclusions for denial of the applicant’s application to proceed 

in forma pauperis which shall become a part of the record 

of the proceeding. If an objection is sustained, the party 

filing the application shall have thirty 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. In any event, the court 

shall not deny an application on the basis that the appellant’s legal positions are frivolous or malicious if to do so 

would deny a defendant his or her constitutional right to 

appeal in a felony case.

(2) 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.

As an initial matter, we note there is some question as 

to whether the district court held a hearing. Such hearing is 
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STATE v. SIMS

Cite as 291 Neb. 475

required by the plain language of § 25-2301.02 in the event 

the court objects to an application to proceed in forma pauperis on the basis that the party filing the application “has sufficient funds to pay costs, fees, or security.”

Here, the district court indicated in its order denying the 

application to proceed in forma pauperis that the matter 

“came on for hearing.” And Sims does not now complain that 

no hearing was held. We additionally note that our appellate 

record contains no bill of exceptions and no exhibits from 

any hearing, but we do not find this dispositive. Section 

25-2301.02(2) provides that “[i]n 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.” In this case, Sims is the aggrieved party, but made no 

application for the transcript of the hearing. As such, we will 

determine the issues presented by this appeal from a review of 

the district court’s order denying Sims’ application to proceed 

in forma pauperis, as well as the documents attached to Sims’ 

application to proceed in forma pauperis. It is apparent from 

our review of the record that these documents were available 

to the district court.

In this case, the district court, on its own motion, objected 

to Sims’ application on the basis that it believed Sims had sufficient funds to pay the docket fee and concluded as much in 

a written order. The district court specifically noted that Sims 

had nearly $5,000 in his prison account and was employed for 

approximately 25 hours per week at a rate of $12.59 an hour. 

The district court referenced the federal poverty line in making 

this conclusion.

Sims disagrees with the district court’s conclusion that his 

earnings place him over the federal poverty line. He contends 

in his brief that while he earns $12.59 an hour, his effective 

earnings are only $2.25 an hour because the remainder goes to 

his victims.

Sims’ argument regarding his eligibility for in forma pauperis status is without merit. It is undisputed that Sims had 
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STATE v. SIMS

Cite as 291 Neb. 475

at least $4,800 in his prison account at the time he initially 

appealed from the district court’s denial of his motion for postconviction relief. And while Sims is allowed to purchase items 

from the prison store, as the district court noted, Sims does not 

pay for housing or food. Sims appears to have sufficient funds 

to pay his filing fees for his appeal.

We are not persuaded by Sims’ contention that we ought 

to use the federal poverty line to determine whether a litigant 

should be entitled to in forma pauperis status. Sims cites to 

no authority that requires the federal or state courts to do so. 

Moreover, we note that Sims asks that we use only the federal 

poverty line as a gauge for in forma pauperis purposes. The 

district court did this. For these reasons, we conclude that 

the district court did not err in denying Sims in forma pauperis status.

[2,3] We turn next to the disposition of Sims’ appeals. Neb. 

Rev. Stat. § 25-1912(4) (Reissue 2008) provides that “an 

appeal shall be deemed perfected and the appellate court shall 

have jurisdiction of the cause when such notice of appeal has 

been filed and such docket fee deposited in the office of the 

clerk of the district court.” In lieu of payment of costs and 

fees of litigation, in forma pauperis status may be obtained by 

appropriate application.4

The appeal docketed as case No. S-14-1073 is solely an 

appeal from the denial of Sims’ motion to proceed in forma 

pauperis in the appeal docketed as case No. S-14-931. Because 

we conclude that the district court did not err in denying Sims’ 

application to proceed in forma pauperis, we affirm the district 

court’s order with respect to this appeal.

[4] However, Sims’ appeal docketed as case No. S-14-931 

concerning the merits of his claim should be held under submission for payment of the statutory docket fee. The district 

court denied Sims’ application to proceed in forma pauperis, 

and we have above concluded that the district court did not err 

in doing so. However, § 25-2301.02(1) provides that

4 Neb. Rev. Stat. § 25-2301.01 (Reissue 2008).
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STATE v. SIMS

Cite as 291 Neb. 475

[i]f an objection [to in forma pauperis status] is sustained, 

the party filing the application shall have thirty 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.

As such, we conclude that Sims shall be permitted 30 days 

from the issuance of the mandate in this case in which to pay 

the statutory docket fee. Failure to so do will result in the 

dismissal of his appeal from the denial of his postconviction 

motion docketed as case No. S-14-931.

CONCLUSION

The district court did not err in denying Sims’ application to 

proceed in forma pauperis. We therefore affirm the judgment 

in case No. S-14-1073. But we note that Sims has 30 days in 

which to pay the statutory docket fee for the appeal docketed 

as case No. S-14-931. Sims’ failure to do so will result in the 

dismissal of that appeal.

 Appeal in No. S-14-931 held under subm

Judgment in No. S-14-1073 aff

Stephan, J., not participatin