State v. Parmar
| Decision Date | 25 September 1998 |
| Docket Number | No. S-97-919,S-97-919 |
| Citation | 255 Neb. 356,586 N.W.2d 279 |
| Parties | STATE of Nebraska, Appellee, v. Leroy J. PARMAR, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the court
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which 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 from the lower court's decision. It not only is within the power but is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.
2. Constitutional Law: Statutes: Jurisdiction: Appeal and Error . The appellate jurisdiction of a court is contingent upon timely compliance with constitutional or statutory methods of appeal.
3. Jurisdiction: Fees: Legislature: Intent: Appeal and Error. When interpreting Neb.Rev.Stat. § 25-1912 (Reissue 1995), this court has long held that the Legislature intended that the filing of the notice of appeal and the depositing of the docket fee in the office of the clerk of the district court are both mandatory and jurisdictional. The Nebraska Supreme Court has no power to exercise appellate jurisdiction in proceedings to review the judgment of the district court unless the appellant shall have filed a notice of appeal and deposited a docket fee in the office of the clerk of the district court within the time fixed and as provided in § 25-1912.
4. Affidavits: Fees: Time: Appeal and Error. When a poverty affidavit is substituted for the docket fee, it must be filed within the time and in the manner required for filing the docket fee.
5. Rules of the Supreme Court: Fees: Affidavits: Time: Appeal and Error. Neb.Ct.R. of Prac. 1B(4) (rev.1996) provides that once a notice of appeal and docket fee or poverty affidavit have been filed with the clerk of the district court, the clerk must send the Nebraska Supreme Court a check of the clerk of the district court for docket fee or copy of a poverty affidavit which has been executed no more than 45 days prior to the filing of notice of appeal.
6. Rules of the Supreme Court: Affidavits: Time: Appeal and Error. Neb.Ct.R. of Prac. 1B(4) requires only that an affidavit be signed and notarized no more than 45 days prior to the filing of the notice of appeal. It says nothing as to when the affidavit must be filed.
7. Affidavits: Judgments: Time: Appeal and Error. A poverty affidavit is insufficient to perfect an appeal unless it is filed during the 30-day period following the rendition of judgment.
8. Words and Phrases. The word "filed" in Neb.Rev.Stat. § 25-1912 (Reissue 1995) means received in the office of the clerk of the district court.
9. Prisoners. Prisoners acting pro se are subject to the same filing rules as other litigants.
LeRoy J. Parmar, appellant pro se.
Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.
This postconviction appeal presents the following questions: whether a poverty affidavit filed prior to the rendition of the final order by the trial court may be used to perfect an appeal from that judgment, pursuant to Neb.Ct.R. of Prac. 1B(4) (rev.1996), and whether a prisoner's pro se poverty affidavit is "filed" on the date it is delivered to prison authorities for mailing rather than the date it is received in the office of the clerk of the district court. We conclude that a poverty affidavit must be filed after the rendition of the trial court's judgment to perfect an appeal therefrom and that a prisoner's pro se poverty affidavit is filed on the date it is received in the office of the clerk of the district court. Because the first poverty affidavit of appellant, LeRoy J. Parmar, was filed prior to the rendition of judgment and the second was received in the office of the clerk of the district court more than 30 days after the judgment, this court has no jurisdiction to hear Parmar's appeal. Appeal dismissed.
On July 24, 1997, Parmar filed a pro se motion for postconviction relief, asking the district court to vacate and set aside his conviction and sentence for the murder of Frederick Cox. See, State v. Parmar, 249 Neb. 462, 544 N.W.2d 102 (1996) (); State v. Parmar, 231 Neb. 687, 437 N.W.2d 503 (1989) (). He also filed a motion to proceed in forma pauperis with a supporting poverty affidavit and a motion to appoint counsel.
On July 30, 1997, the district court considered Parmar's motions without granting an evidentiary hearing. The district court entered an order on that date simultaneously appointing appellate counsel for Parmar, granting him leave to proceed in forma pauperis, and denying the motion to vacate and set aside the judgment.
The court-appointed attorney subsequently filed a notice of appeal in the district court on August 29, 1997, but did not file a separate motion to proceed in forma pauperis or a docket fee. Instead, the notice of appeal requested that Parmar be granted in forma pauperis status based on the district court's July 30 determination that Parmar was indigent. The district court clerk's certificate, dated September 3, records the notice of appeal as having been filed on August 29 and the poverty affidavit on July 30. Finally, on September 2, 34 days after the judgment was rendered, Parmar filed a motion for appointment of substitute counsel, pro se notice of appeal, and a motion to proceed in forma pauperis supported by a poverty affidavit.
The State then filed a motion for summary affirmance or dismissal, contending that this court did not have jurisdiction to hear Parmar's appeal and that the issues raised by Parmar should have been raised in his prior postconviction action. This court overruled the State's motion, and the case proceeded to oral argument.
Parmar assigns that (1) the district court erred in denying Parmar a hearing, because the facts alleged, if proved, constitute violations of Nebraska and/or federal law; (2) court-appointed postconviction counsel was ineffective; and (3) the district court erred in refusing to appoint substitute counsel to perfect the instant appeal.
A jurisdictional question which 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 from the lower court's decision. Bonge v. County of Madison, 253 Neb. 903, 573 N.W.2d 448 (1998). It not only is within the power but is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Trew v. Trew, 252 Neb. 555, 567 N.W.2d 284 (1997).
As a threshold matter, this court must address whether it has jurisdiction to hear this appeal. "The appellate jurisdiction of a court is contingent upon timely compliance with constitutional or statutory methods of appeal." Barney v. Platte Valley Public Power and Irrigation District, 144 Neb. 230, 235, 13 N.W.2d 120, 123 (1944). Neb.Rev.Stat. § 25-1912 (Reissue 1995) governs appellate jurisdiction and states:
The proceedings to obtain a reversal, vacation, or modification of judgments and decrees rendered or final orders made by the district court, including judgments and sentences upon convictions for felonies and misdemeanors, shall be by filing in the office of the clerk of the district court in which such judgment, decree, or final order was rendered, within thirty days after the rendition of such judgment or decree or the making of such final order, a notice of intention to prosecute such appeal signed by the appellant or appellants or his, her, or their attorney of record and, except as otherwise provided in sections 29-2306 and 48-641, by depositing with the clerk of the district court the docket fee required by section 33-103.
....
... [A]n 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....
This court has long held that "the Legislature intended that the filing of the notice of appeal and the depositing of the docket fee 'in the office of the clerk of the district court' are both mandatory and jurisdictional." American Legion Post No. 90 v. Nebraska Liquor Control Commission, 199 Neb. 429, 430-31, 259 N.W.2d 36, 37 (1977), quoting Barney v. Platte Valley Public Power and Irrigation District, supra. The Nebraska Supreme Court has no power to exercise appellate jurisdiction in proceedings to review the judgment of the district court unless the appellant shall have filed a notice of appeal and deposited a docket fee in the office of the clerk of the district court within the time fixed and as provided in § 25-1912. American Legion Post No. 90 v. Nebraska Liquor Control Commission, supra; Barney v. Platte Valley Public Power and Irrigation District, supra. When a poverty affidavit is substituted for the docket fee, it must be filed within the time and in the manner required for filing the docket fee. See, State v. Schmailzl, 248 Neb. 314, 534 N.W.2d 743 (1995); State v. Haase, 247 Neb. 817, 530 N.W.2d 617 (1995).
It is clear that Parmar's counsel did not file a poverty affidavit with the notice of appeal filed on August 29, 1997, and that Parmar's pro se notice of appeal and poverty affidavit were received in the office of the clerk of the district court on September 2, more than 30 days after the rendition of the judgment. Thus, it would appear that Parmar has not complied with § 25-1912 and that this court is without jurisdiction.
However, Parmar argues that the poverty affidavit filed on July 24, 1997, was effective for 45 days according to rule 1B(4) and, therefore, was still in...
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