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State v. Campbell1/5/2001
in a fact finder's province for disposition. Blackman, supra.
ANALYSIS
Jurisdiction
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. State v. McCracken, ante p. 234, 615 N.W.2d 902 (2000). The State claims this court lacks jurisdiction over Campbell's appeal. The State asserts that although Campbell filed an affidavit, she failed to file an "application" as required by Neb. Rev. Stat. § 25-2301.01 (Cum. Supp. 2000), which states:
Any county or state court, except the Nebraska Workers' Compensation Court, may authorize the commencement, prosecution, defense, or appeal therein, of a civil or criminal case in forma pauperis. An application to proceed in forma pauperis shall include an affidavit stating that the affiant is unable to pay the fees and costs or give security required to proceed with the case, the nature of the action, defense, or appeal, and the affiant's belief that he or she is entitled to redress.
The only requirement of an "application" to proceed in forma pauperis is that such application "include an affidavit stating that the affiant is unable to pay the fees and costs or give security required to proceed with the case, the nature of the action, defense, or appeal, and the affiant's belief that he or she is entitled to redress." § 25-2301.01. We determine that as long as the poverty affidavit itself includes some indication that a defendant is requesting or applying for in forma pauperis status, § 25-2301.01 does not require that a separate application be filed in addition to the poverty affidavit. Campbell's affidavit includes both a statement that Campbell "cannot pay the costs on appeal," and a statement that she "requests that the costs of the appeal be borne by Sarpy County, Nebraska." Thus, this court does not lack jurisdiction due to Campbell's failure to file an application separate from the affidavit.
The State additionally claims that the poverty affidavit Campbell filed is insufficient because it did not include a statement of the nature of the action, defense, or appeal, or a statement that she believes she is entitled to redress. The State claims that Campbell's failure to comply with these additional requirements of § 25-2301.01 prevents the court from obtaining jurisdiction. In State v. Dallmann, ante p. 937, ___ N.W.2d ___ (2000), we determined that if a district court grants leave to proceed in forma pauperis, this court obtains jurisdiction when the notice of appeal is filed and that failure of the affidavit to state the nature of the action or that the affiant is entitled to redress does not divest this court of jurisdiction. The State's contention is without merit.
[5,6] The State next claims this court lacks jurisdiction over Campbell's appeal because Campbell's brief does not contain a statement of the basis of jurisdiction as required by Neb. Ct. R. of Prac. 9D(1)c (rev. 2000). Jurisdiction is vested in this court through the state Constitution and the Legislature, Neb. Const. art. V, § 2, and Neb. Rev. Stat. § 24-204 (Reissue 1995). Although failure to comply with court rules may in some instances result in this court's not considering an issue raised in the appeal, see State v. Feiling, 255 Neb. 427, 585 N.W.2d 456 (1998) (court will not consider claim that statute is unconstitutional when party failed to file notice required by rule 9E), failure to comply with rule 9D(1)c is not jurisdictional and therefore does not divest this court of jurisdiction. The State's claim that this court lacks jurisdiction due to Campbell's failure to include a jurisdictional statement in her
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