Exercising your right to appeal a criminal conviction from the trial court to an appellate court in Nebraska is fraught with procedural complexities that can be difficult to navigate. This is the second in a series of articles that will discuss the fundamentals of the appeals process for criminal appeals in Nebraska from beginning to end. This article provides a basic overview of the jurisdictional requirements and paperwork that must be filed to perfect a criminal appeal from the trial court and obtain appellate review.
Jurisdictional Requirements
All criminal appeals must meet two basic jurisdictional requirements:
- Timely notice of appeal
- Prepayment of docket fees or proof of waiver
Nebraska Revised Statute § 25-1912(1) provides that a notice of appeal signed by the defendant or their attorney of record must be filed within 30 days after the entry of the judgment or final order of the trial court from which the defendant wishes to appeal. The Nebraska Supreme Court has said that when the Legislature fixes a time for taking an appeal, the courts have no power to extend the time directly or indirectly. State v. Lotter, 301 Neb. 125 (2018). This means the deadline cannot be extended under any circumstances.
The docket fee is generally $129 + $75 cost bond and can be paid through the Supreme Court website, JUSTICE, when e-filing the appeal documents. See, https://supremecourt.nebraska.gov/rules/administrative-policies-schedules/fees.
When a criminal defendant is unable to pay the docket fee, Nebraska Revised Statute § 29-2306 allows them to request to proceed in forma pauperis (IFP) on appeal. According to the Nebraska Supreme Court, when a defendant does so, “a poverty affidavit serves as a substitute for the docket fee otherwise required” and an in forma pauperis appeal is “perfected when the appellant timely files a notice of appeal and a proper poverty affidavit.” State v. Melton, 308 Neb. 159 (2021). The affidavit must be notarized and the order granting the IFP status must be included in the appellate transcript.
How to Calculate 30 Days
As noted above, a notice of appeal signed by the defendant or their attorney of record must be filed within 30 days after the entry of the judgment or final order of the trial court from which the defendant wishes to appeal. In the vast majority of cases, the final order from which a criminal defendant appeals is the trial court’s sentencing order.
When calculating the due date, the day that triggers the 30-day deadline is excluded. However, both business days and non-workdays are counted unless the 30th day falls on a weekend or holiday. In that case, the next business day is the 30th day. See Nebraska Revised Statute § 25-2221.
What to File
Nebraska Court Rules of Appellate Procedure § 2-101 outlines how to docket a case on appeal. In addition to the jurisdictional requirements discussed above, a defendant must also file several other documents to ensure that the appellate court receives the full trial court record.
The following documents must be filed in the trial court from which the defendant is appealing:
- Notice of appeal
- Docket fee or IFP affidavit
- Praecipe for Bill of Exceptions
- Praecipe for Transcript
The purpose of the two praecipes is to direct the court reporter and clerk’s office how to compose the appellate record. The “Bill of Exceptions” (BOE) is the transcript of in-court proceedings the court reporter will transcribe to generate “the record.” By contrast, the “Transcript” is the series of pleadings the clerk’s office will compile.
Nebraska Court Rules of Appellate Procedure §§ 2-104 and 2-105 provide guidance on the contents expected to be found in the transcript and BOE respectively. It is better to err on the side of inclusion when requesting all pleadings and court proceedings necessary to establish jurisdiction and that substantiate the appellate claims.
Presentence Investigation Reports
In addition to four above-listed filing requirements, a defendant challenging their sentence as excessive or for whom a presentence investigation (PSI) report was completed, should also file a motion to forward the PSI, so that the appellate court may review and consider the PSI as part of the appellate record.
We Represent Individuals Appealing a Criminal Conviction
Criminal appeals are procedurally complex and difficult to navigate. The assistance of competent legal counsel is essential in safeguarding your rights throughout the appeal process, from the trial court to the appellate court.
At Berry Law, we may be able to assist you in appealing your criminal conviction. We provide legal resources and skillful, effective representation for accused persons throughout Nebraska, and we are prepared to analyze your case in order to determine the best course of action. Contact Berry Law today to discuss your case.
