29-2306. Criminal case; docket fee; when paid by county; in forma pauperis; costs.
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/ne/chapter-29/29-2306A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
If a defendant in a criminal case files, within thirty days after the entry of the judgment, order, or sentence, an application to proceed in forma pauperis in accordance with sections 25-2301 to 25-2310 with the clerk of the district court, then no payment of the docket fee shall be required of him or her unless the defendant's application to proceed in forma pauperis is denied. The clerk of the district court shall forward a certified copy of such application, including the affidavit, to the Clerk of the Supreme Court.
If an application to proceed in forma pauperis is filed and granted, the Court of Appeals or Supreme Court shall acquire jurisdiction of the case when the notice of appeal is filed with the clerk of the district court. In cases in which an application to proceed in forma pauperis is granted, the amount of the costs shall be endorsed on the mandate and shall be paid by the county in which the indictment was found.
1. Method of review
2. Time
3. Record
4. Miscellaneous
1. Method of review
Lack of staleness of execution under a particular measure of days is not an essential prerequisite to appellate jurisdiction; under the current statutory scheme, the jurisdictional prerequisite of a filing fee is satisfied when the lower court grants in forma pauperis status after considering a timely filed application and accompanying affidavit that, unless good cause is shown in the record why the appellant could not sign the affidavit, was executed personally by the impoverished appellant. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
The relative staleness of the execution of a poverty affidavit does not change the mandate of subsection
(4)of section 25-1912 that "no step other than the filing of such notice of appeal and the depositing of such docket fee shall be deemed jurisdictional." State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
The relative staleness of the execution of a poverty affidavit does not change the mandate of this section that "[i]f an application to proceed in forma pauperis is filed and granted, the Court of Appeals or Supreme Court shall acquire jurisdiction of the case when the notice of appeal is filed with the clerk of the district court." State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
When notice of appeal is filed, jurisdiction is vested in Supreme Court and district court loses it in criminal case. State v. Moore, 186 Neb. 71, 180 N.W.2d 888 (1970).
Method of review of all criminal cases by the Supreme Court is upon writ of error. Krell v. Mantell, 157 Neb. 900, 62 N.W.2d 308 (1954).
Error proceedings are commenced in Supreme Court by filing of petition in error and transcript. Fisher v. State, 153 Neb. 226, 43 N.W.2d 600 (1950).
2. Time
The relevant date under this section is the date the defendant files the application to proceed in forma pauperis, not the date on which the court grants the application. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002); State v. Newcomer, 23 Neb. App. 761, 875 N.W.2d 914 (2016).
An appeal shall be deemed perfected, giving the court jurisdiction, when notice of appeal has been timely filed and the docket fee timely deposited. State v. Price, 198 Neb. 229, 252 N.W.2d 165 (1977).
Appeal was lodged by timely writing judge setting out intent to appeal, indigency, and request for counsel. State v. Moore, 187 Neb. 507, 192 N.W.2d 157 (1971).
Supreme Court acquires no jurisdiction of a criminal appeal unless notice of appeal is filed within one month. State v. Wycoff, 183 Neb. 373, 160 N.W.2d 221 (1968).
Improper to apply time limitations for appeal where indigency and desire to appeal manifest and defendant, without services of trial counsel, failed to specifically request appointment of appellate counsel. State v. Williams, 181 Neb. 692, 150 N.W.2d 260 (1967).
Under former law Supreme Court had jurisdiction in criminal case on timely filing of petition in error, transcript, and poverty affidavit. Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960).
The 1949 amendment to this section did not operate to remove the limitation of one month in which to institute error proceedings in criminal cases. Cunningham v. State, 153 Neb. 912, 46 N.W.2d 636 (1951).
Where defendant negligently fails to file transcript and petition in error within time prescribed after rendition of judgment, Supreme Court had no jurisdiction. Goodman v. State, 131 Neb. 662, 269 N.W. 383 (1936).
Under former statute, proceedings in error had to be instituted within six months after judgment. Kock v. State, 73 Neb. 354, 102 N.W. 768 (1905).
Only after final judgment may writ of error be allowed. Green v. State, 10 Neb. 102, 4 N.W. 422 (1880).
3. Record
On review of conviction, motion for new trial not preserved and authenticated as part of transcript on appeal cannot be considered; evidence not contained in bill of exceptions as settled by trial judge, although physically appended thereto, will not be considered. Lee v. State, 124 Neb. 165, 245 N.W. 445 (1932).
This section regulates the administration of relief in error proceedings where errors have been preserved in record and are properly presented. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).
Where evidence, in criminal case, tried in county court, is certified to district court in form of bill of exceptions, which is used therein to maintain petition in error, filed in that court, Supreme Court, on appeal from district court, will examine entire proceeding and affirm or reverse. Cooper v. State, 97 Neb. 461, 150 N.W. 207 (1914).
Affidavits used on trial of issue of fact do not become part of record by being certified to Supreme Court by clerk of district court. Hoy v. State, 69 Neb. 516, 96 N.W. 228 (1903).
Unauthenticated statement by trial judge, found in transcript, of what transpired during proceedings, is stricken out as it is not made part of the record. Bush v. State, 47 Neb. 642, 66 N.W. 638 (1896).
4. Miscellaneous
The order granting an application to proceed in forma pauperis is not a final, appealable order because it does not affect a substantial right. State v. Fredrickson, 306 Neb. 81, 943 N.W.2d 701 (2020).
The poverty affidavit in a criminal appeal must follow the language of this section, stating that defendant is unable by reason of poverty to pay the costs. An affidavit which states only that defendant is unable to pay the costs of retaining counsel is insufficient and does not vest jurisdiction with the appellate court. State v. Schmailzl, 248 Neb. 314, 534 N.W.2d 743 (1995).
Where a defendant invoked remedy by appeal, he could not at the same time carry on proceeding under the Post Conviction Act. State v. Carr, 181 Neb. 251, 147 N.W.2d 619 (1967).
Mere filing of affidavit of inability to pay filing fee is not conclusive but may be contested. State v. Eberhardt, 179 Neb. 843, 140 N.W.2d 802 (1966).
In a criminal case, payment of docket fee or in lieu thereof filing of affidavit of poverty is a jurisdictional step. State v. Goff, 174 Neb. 217, 117 N.W.2d 319 (1962).
Confinement in penitentiary under void or erroneous sentence, during pendency of proceedings in error, is not partial execution of legal sentence. McCormick v. State, 71 Neb. 505, 99 N.W. 237 (1904).
Absent good cause evident in the record, it is a jurisdictional defect for the impoverished appellant to fail to personally sign before a notary the affidavit that substitutes for the payment of fees and costs and the posting of security. State v. Guardiola, 32 Neb. App. 915, 8 N.W.3d 253 (2024).
The defendant established that the poverty affidavit he timely filed was valid because it was personally signed and authenticated by a notary public duly commissioned by the State of Nebraska. Although the notary public's verification failed to include a notarial seal, this omission was satisfactorily cured upon the notary filing an affidavit attesting to being a notary in the State of Nebraska on the date that the affidavit was signed and verified, and attaching a copy of the notary public's notarial certificate confirming her active status in Nebraska on the date the affidavit was signed and verified. State v. Guardiola, 32 Neb. App. 915, 8 N.W.3d 253 (2024).
For criminal appeals, in order to be effective for content, a poverty affidavit is valid if it satisfies one requirement: The affiant must state that he or she is unable by reason of poverty to pay the costs of the appeal. State v. Barnett, 1 Neb. App. 708, 511 N.W.2d 150 (1993).