Annotations

• 1. Invalid or erroneous sentence

• 2. Credit not allowed

• 3. Miscellaneous

• 1. Invalid or erroneous sentence

• When a court grants a defendant more or less credit for time served than the defendant actually served, that portion of the pronouncement of sentence is erroneous and may be corrected to reflect the accurate amount of credit as verified objectively by the record. State v. Galvan, 305 Neb. 513, 941 N.W.2d 183 (2020); State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).

• Pursuant to subsection (2) of this section, the court had the authority to revise the sentence when the defendant was inadvertently given 361 days' credit for time served rather than the 61 days actually served. State v. Clark, 17 Neb. App. 361, 762 N.W.2d 64 (2009).

• Pursuant to subsection (2) of this section, where a portion of a sentence is valid and a portion is invalid or erroneous, the court has the authority to modify or revise the sentence by removing the invalid or erroneous portion of the sentence if the remaining portion of the sentence constitutes a complete valid sentence. State v. Clark, 17 Neb. App. 361, 762 N.W.2d 64 (2009).

• 2. Credit not allowed

• This section does not authorize presentence credit against a jail sentence for time spent in the Department of Correctional Services serving a separate sentence. State v. Harms, 304 Neb. 441, 934 N.W.2d 850 (2019).

• Spending time in a treatment facility and spending time in jail are not the same, and this section specifically refers to credit for time spent in jail. State v. McCain, 29 Neb. App. 981, 961 N.W.2d 576 (2021).

• Under subsection (1) of this section, a defendant is not entitled to credit against a jail sentence for time spent in a residential substance abuse treatment facility. State v. Anderson, 18 Neb. App. 329, 779 N.W.2d 623 (2010).

• 3. Miscellaneous

• Because jail credit is an absolute and objective number that is established by the record and no statute mandates who is responsible for making that record, the party advocating for a specific jail credit calculation has the burden to provide the sentencing court with a record that establishes such calculation. State v. Castillo-Rodriguez, 313 Neb. 763, 986 N.W.2d 78 (2023).

• The legal impact of a writ of habeas corpus ad prosequendum on the jail credit calculation cannot be addressed unless the record establishes compliance with the writ, not just issuance of the writ. State v. Castillo-Rodriguez, 313 Neb. 763, 986 N.W.2d 78 (2023).

• This section and section 83-1,106(1) use similar language, so the reasoning of cases involving one of these provisions is applicable to cases involving the other. State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).

• This section provides that a defendant is entitled to “[c]redit against” his jail term. In context, that means that a judge cannot credit a defendant with more time served than the length of his or her sentence. State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).

• Pursuant to this section, a sentencing court is required to separately determine, state, and grant credit for time served. State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).

• The court has no discretion to grant a defendant more or less credit than is established by the record. State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).

• Under this section, a sentencing judge is required, at the time of sentencing, to separately determine, state, and grant the amount of credit on the defendant's sentence to which the defendant is entitled. State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999).

• Pursuant to subsection (2) of this section, the giving of credit for time served is part of the sentence. State v. Clark, 17 Neb. App. 361, 762 N.W.2d 64 (2009).