                                       - 475 -
                       Nebraska A dvance Sheets
                        291 Nebraska R eports
                                STATE v. SIMS
                              Cite as 291 Neb. 475




                  State of Nebraska, appellee, v.
                  Michael Joseph Sims, appellant.
                                ___ 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 per-
     fected 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 stat-
     ute of limitations or deadline for appeal.

  Appeals from the District Court for Douglas County: Gary
B. R andall, Judge. Appeal in No. S-14-931 held under sub-
mission. Judgment in No. S-14-1073 affirmed.

   Michael Joseph Sims, pro se.

   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
                                     - 476 -
                         Nebraska A dvance Sheets
                          291 Nebraska R eports
                                 STATE v. SIMS
                               Cite as 291 Neb. 475

  Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
      Heavican, C.J.
                       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 dock-
eted 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 sen-
tences 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).
                              - 477 -
                   Nebraska A dvance Sheets
                    291 Nebraska R eports
                          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 postconvic-
tion 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
                              - 478 -
                   Nebraska A dvance Sheets
                    291 Nebraska R eports
                          STATE v. SIMS
                        Cite as 291 Neb. 475

     application shall be made within thirty days after the fil-
     ing 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 conclu-
     sions 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 rul-
     ing or issuance of the statement to proceed with an action
     or appeal upon payment of fees, costs, or security not-
     withstanding 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 appel-
     lant’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 there-
     from, the aggrieved party may make application for a
     transcript of the hearing on in forma pauperis eligibil-
     ity. 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
                              - 479 -
                   Nebraska A dvance Sheets
                    291 Nebraska R eports
                          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 pau-
peris on the basis that the party filing the application “has suf-
ficient 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 applica-
tion 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 eligibil-
ity.” 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 suf-
ficient 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 pau-
peris status is without merit. It is undisputed that Sims had
                                     - 480 -
                         Nebraska A dvance Sheets
                          291 Nebraska R eports
                                 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 post-
conviction 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 pau-
peris 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 sub-
mission 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).
                              - 481 -
                   Nebraska A dvance Sheets
                    291 Nebraska R eports
                          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.
	A ppeal in No. S-14-931 held under submission.
	              Judgment in No. S-14-1073 affirmed.
   Stephan, J., not participating.
