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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. KNIGHT

Cite as 311 Neb. 485

State of Nebraska, appellee, v. 

Joshua J. Knight, appellant.

___ N.W.2d ___

Filed April 28, 2022. No. S-21-544.

1. Sentences: Appeal and Error. A sentence imposed within the statutory 

limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

2. Judges: Appeal and Error. When judicial discretion is exercised contrary to law or to the commonly recognized legal principles, it indicates 

an abuse of discretion.

3. Statutes: Judgments: Appeal and Error. The meaning of a statute is a 

question of law, on which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

4. Criminal Law: Legislature: Courts: Sentences. The power to define 

criminal conduct and fix its punishment is vested in the legislative 

branch, whereas the imposition of a sentence within these legislative 

limits is a judicial function.

5. Sentences. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or lesser than the permissible 

statutory penalty for the crime.

6. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

7. Statutes. It is not within the province of the courts to read meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

8. Words and Phrases. As a general rule, the use of the word “shall” is 

considered to indicate a mandatory directive, inconsistent with the idea 

of discretion.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/15/2022 01:06 AM CDT
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. KNIGHT

Cite as 311 Neb. 485

9. Sentences: Probation and Parole. Neb. Rev. Stat. § 29-2204.02(7)(a) 

(Reissue 2016) requires a sentencing court to advise an offender of 

the time to be served based on an assumption that no good time will 

be lost.

10. Statutes: Words and Phrases. The word “include,” as used in a statute, 

connotes that the provided list of components is not exhaustive and that 

there are other items includable that are not specifically enumerated.

11. Sentences: Probation and Parole: Time. Unless another statute provides otherwise, where an offender is originally sentenced to postrelease supervision and is later resentenced to confinement in a county 

jail following revocation of post-release supervision, the offender is 

entitled to good time reduction of his or her county jail sentence pursuant to Neb. Rev. Stat. § 47-502 (Reissue 2021).

12. Sentences: Appeal and Error. An appellate court has the power on 

direct appeal to remand a cause for the imposition of a lawful sentence 

where an erroneous one has been pronounced.

Appeal from the District Court for Buffalo County: Ryan 

C. Carson, Judge. Affirmed in part, and in part vacated and 

remanded with directions.

D. Brandon Brinegar, Deputy Buffalo County Public 

Defender, for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Joshua J. Knight appeals from a resentencing order that 

revoked his post-release supervision and incarcerated him in 

the county jail for 9 months, with credit for previous time 

served, but that expressly denied credit for future “good time.” 

He argues that this denial violated Neb. Rev. Stat. § 47-502 

(Reissue 2021) (county jail good time). On appeal, the State 

agreed, and so do we. Therefore, we vacate that portion of 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. KNIGHT

Cite as 311 Neb. 485

his sentence and remand the cause with directions. Otherwise, 

we affirm.

II. BACKGROUND

Knight was originally convicted of assault by a confined 

person, a Class IIIA felony, and initially sentenced to a 1-year 

term of imprisonment followed by 18 months of post-release 

supervision. Knight completed his prison term and was then 

released on his post-release supervision.

Ten months into Knight’s post-release supervision, the State 

filed a motion to revoke it. It alleged that Knight violated particular conditions of his post-release supervision.

At a hearing, Knight voluntarily and knowingly admitted 

to the State’s allegations. The district court accepted Knight’s 

admissions and found that he violated those conditions of 

his post-release supervision. The court ordered that Knight 

be resentenced.

Following a sentencing hearing, the court issued a written 

sentencing order, revoking Knight’s post-release supervision 

and sentencing him to a term of incarceration of 9 months in 

the “Buffalo County Jail.” The court gave Knight a 27-day 

credit for time already served, but found that “[he did] not 

qualify for good time credit.”

On the record at the sentencing hearing, the court explained 

its reasoning. The court stated: “So with the credit that I’ve 

given you and because it’s post-release supervision, you don’t 

qualify for good time credit, you will serve 243 days in jail, 

which just so happens to take you about to the end of your 

post-release supervision . . . .”

Knight filed a timely appeal to the Nebraska Court of 

Appeals. We moved his appeal to our docket. 1 Later, in response 

to our order to show cause, Knight established, and the State 

did not dispute, that his county jail sentence was interrupted 

by another sentence by a different court and remained partially 

unserved pending completion of the other sentence.

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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311 Nebraska Reports

STATE v. KNIGHT

Cite as 311 Neb. 485

III. ASSIGNMENT OF ERROR

Knight assigns that the district court erred in ordering that 

he did not qualify for good time credit while serving his 

jail sentence.

IV. STANDARD OF REVIEW

[1,2] A sentence imposed within the statutory limits will not 

be disturbed on appeal in the absence of an abuse of discretion 

by the trial court. 2 When judicial discretion is exercised contrary to law or to the commonly recognized legal principles, it 

indicates an abuse of discretion. 3

[3] The meaning of a statute is a question of law, on 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. 4

V. ANALYSIS

Knight’s sole argument is that the court abused its discretion 

in finding that he did not qualify for good time, because doing 

so violated § 47-502. The statute requires:

Any person sentenced to or confined in a city or county 

jail, including any person serving a custodial sanction 

imposed in response to a parole or probation violation, 

shall, after the fifteenth day of his or her confinement, 

have his or her remaining term reduced one day for each 

day of his or her sentence or sanction during which he or 

she has not committed any breach of discipline or other 

violation of jail regulations. 5

Knight asserts that § 47-502 applies to him, because the 

court ordered that he serve his sentence in the county jail, 

and that therefore, he must qualify for good time credit. 

Knight does not dispute that his sentence to 9 months of jail 

2 State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).

3 Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (1947).

4 State v. Brown, 300 Neb. 57, 912 N.W.2d 241 (2018).

5 § 47-502 (emphasis supplied).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. KNIGHT

Cite as 311 Neb. 485

confinement, after revocation of his post-release supervision, 

was within the statutory limits; rather, he asserts only that the 

feature of the sentencing order denying good time was contrary 

to law.

The State agrees with Knight’s argument. In its brief, the 

State asserted that “[its] research did not reveal any statutory 

or case law authority for a sentencing court to order a defendant is not entitled to earn good time credit on his sentence 

when the sentence is being imposed upon the revocation of 

post-release supervision.” 6

[4,5] The power to define criminal conduct and fix its punishment is vested in the legislative branch, whereas the imposition of a sentence within these legislative limits is a judicial 

function. 7 Accordingly, a sentence is illegal when it is not 

authorized by the judgment of conviction or when it is greater 

or lesser than the permissible statutory penalty for the crime. 8

Because Knight does not attack any other aspect of his resentencing, we address only whether the denial of county jail good 

time was contrary to law and thus an abuse of discretion.

While Knight relies solely upon § 47-502, we recognize that 

another statute could conceivably authorize the court’s action. 

Before addressing § 47-502, we first examine the statutes creating the offense for which he was originally sentenced and 

governing imposition of post-release supervision. We next consider those addressing revocation of post-release supervision. 

We then turn to § 47-502. After reviewing the statutes, we will 

consider our case law.

[6,7] In examining these statutes, we apply settled principles 

of statutory interpretation. Statutory language is to be given 

its plain and ordinary meaning, and an appellate court will not 

resort to interpretation to ascertain the meaning of statutory 

6 Brief for appellee at 3.

7 State v. Kantaras, 294 Neb. 960, 885 N.W.2d 558 (2016).

8 Id.
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STATE v. KNIGHT

Cite as 311 Neb. 485

words which are plain, direct, and unambiguous. 9 Similarly, it 

is not within the province of the courts to read meaning into a 

statute that is not there or to read anything direct and plain out 

of a statute. 10

1. Statutes

(a) Statutes Governing Original Sentence

The statute creating the underlying offense—assault by a 

confined person—does not contain any language purporting 

to authorize a court to deny county jail good time. 11 It does 

mandate that certain sentences be served consecutively and 

imposes a limitation on credit for time spent in custody prior 

to sentencing. 12 But its language does not expressly authorize 

denial of county jail good time.

[8,9] Another statute, 13 which governs imposition of sentences for Class IIIA felonies, except in circumstances not 

applicable here, 14 does not authorize denial of county jail good 

time. To the contrary, the only language of this statute bearing 

on good time suggests otherwise. In pertinent part, it states:

(7)(a) When imposing a determinate sentence upon an 

offender under this section, the court shall:

. . . .

(iii) When imposing a sentence following revocation of 

post-release supervision, advise the offender on the record 

the time the offender will serve on his or her term of 

imprisonment, including credit for time served, assuming 

that no good time for which the offender will be eligible 

is lost.

 15

9 State v. Taylor, 310 Neb. 376, 966 N.W.2d 510 (2021).

10 Id.

11 See Neb. Rev. Stat. § 28-932 (Reissue 2016).

12 See § 28-932(2).

13 Neb. Rev. Stat. § 29-2204.02 (Reissue 2016).

14 See § 29-2204.02(4).

15 § 29-2204.02(7)(a) (emphasis supplied).
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. KNIGHT

Cite as 311 Neb. 485

Notably, this statute uses the word “shall.” As a general rule, 

the use of the word “shall” is considered to indicate a mandatory directive, inconsistent with the idea of discretion. 16 Thus, 

this statute requires a sentencing court to advise an offender of 

the time to be served based on an assumption that no good time 

will be lost. It does not suggest that the court may deny good 

time to the offender.

(b) Revocation Statute

The Nebraska Probation Administration Act (the act) 17 governs Knight’s violation of his post-release supervision. While 

Knight was originally sentenced to post-release supervision 

rather than probation, the act defines probation to include postrelease supervision. 18 It also defines probationer as a person 

sentenced to probation or post-release supervision. 19

[10] The statute primarily governing revocation of postrelease supervision under the act does not authorize a court 

to deny good time. 20 It does empower a court to revoke 

post-release supervision and “impose on the offender a term 

of imprisonment up to the original period of post-release 

supervision.” 21 Where a sentence of incarceration is imposed, 

this statute requires the court to “grant jail credit for any days 

spent in custody as a result of the post-release supervision, 

including custodial sanctions.” 22 The word “include,” as used 

in a statute, connotes that the provided list of components 

is not exhaustive and that there are other items includable that 

are not specifically enumerated. 23

16 State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021).

17 Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016, Cum. Supp. 2020 & 

Supp. 2021).

18 See § 29-2246(4).

19 See § 29-2246(5).

20 See, generally, § 29-2268.

21 § 29-2268(2).

22 Id.

23 State v. Hofmann, 310 Neb. 609, 967 N.W.2d 435 (2021).
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Nebraska Supreme Court Advance Sheets

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STATE v. KNIGHT

Cite as 311 Neb. 485

By reference to a general punishment statute, 24 the postrelease supervision revocation statute mandates that a sentence 

of less than 1 year—such as the 9-month sentence here—be 

served in the county jail. 25 Likewise, the general punishment 

statute does not contain any language suggesting that a sentencing court may deny good time. 26

(c) § 47-502

Section 47-502 prescribes the good time credit that a person must qualify to receive while sentenced to or confined 

in a county jail. As we have found regarding previous versions of § 47-502, 27 the current version is plain, direct, and 

unambiguous.

The statute mandates that “[a]ny person sentenced to or 

confined in a . . . county jail, including any person serving a 

custodial sanction imposed in response to a parole or probation 

violation, shall” qualify for good time. 28 Here again, the word 

“including” connotes that the provided list of components is 

not exhaustive and that there are other items includable that are 

not specifically enumerated. 29

[11] We hold that unless another statute provides otherwise, 

where an offender is originally sentenced to post-release supervision and is later resentenced to confinement in a county jail 

following revocation of post-release supervision, the offender 

is entitled to good time reduction of his or her county jail sentence pursuant to § 47-502. Neither party has identified any 

statutory basis for a blanket denial of good time in a sentence 

to county jail confinement following a revocation of postrelease supervision.

24 See Neb. Rev. Stat. § 28-105(2) (Cum. Supp. 2020).

25 See § 29-2268(2).

26 See § 28-105.

27 See State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996).

28 See § 47-502 (emphasis supplied).

29 See State v. Hofmann, supra note 23.
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Nebraska Supreme Court Advance Sheets

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STATE v. KNIGHT

Cite as 311 Neb. 485

2. Case Law

Our case law provides no support for the contested feature 

of the sentencing court’s order. We have discussed the requirement of good time credit for time already spent in jail. 30 In the 

context of sentences to probation, we have rejected the notion 

that the county jail good time required by § 47-502 may be 

denied. 31 Over 30 years ago, we held that § 47-502 applied 

to time spent in the county jail awaiting sentencing. 32 Our 

decision there recited the early history of § 47-502, which, 

we explained, showed that the Nebraska Legislature was concerned about persons in county institutions serving longer sentences for lesser offenses than persons in state prison serving 

time for more serious offenses. 33

At oral argument, Knight speculated that the trial judge may 

have relied on an opinion’s fleeting reference to good time 

during post-release supervision. 34 That reference, however, said 

nothing regarding county jail confinement after revocation of 

post-release supervision.

3. Resolution and Disposition

We hold that the court lacked statutory authority to order 

that Knight could not qualify for good time credit. Because 

the court ordered Knight to serve his sentence in the “Buffalo 

County Jail,” § 47-502 applied. The statute unambiguously 

required that Knight “shall” qualify for good time credit. No 

other statute authorized the court to deny Knight credit for 

good time. Therefore, that portion of the court’s sentence was 

contrary to law and constituted an abuse of discretion. 35

30 See State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).

31 See, State v. Lobato, 259 Neb. 579, 611 N.W.2d 101 (2000); State v. 

Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992).

32 Williams v. Hjorth, 230 Neb. 97, 430 N.W.2d 52 (1988).

33 See id.

34 See State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017), modified on 

denial of rehearing 296 Neb. 606, 894 N.W.2d 349.

35 See Dolen v. State, supra note 3.
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Nebraska Supreme Court Advance Sheets

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STATE v. KNIGHT

Cite as 311 Neb. 485

[12] On appeal, the parties request somewhat different relief, 

but the difference is largely theoretical. Knight requests that 

we “remand with appropriate directions to vacate that portion 

[denying good time credit] of the trial court’s [s]entencing 

[o]rder.” 36 The State asks that we “strike the portion of the 

district court’s order which states [Knight] does not qualify for 

good time credit and affirm the judgment of the district court 

as modified.” 37 We have said that an appellate court has the 

power on direct appeal to remand a cause for the imposition 

of a lawful sentence where an erroneous one has been pronounced. 38 Here, of course, only the denial of good time credit 

was erroneous.

In a similar situation involving denial of good time, we 

vacated that portion of the sentencing order, remanded the 

cause with directions consistent with our opinion, and in all 

other respects, affirmed the sentence. 39 We follow the same 

course here.

VI. CONCLUSION

The portion of Knight’s sentence denying good time credit 

under § 47-502 is vacated and the cause is remanded with 

directions consistent with this opinion. In all other respects, the 

sentence is affirmed.

Affirmed in part, and in part vacated

and remanded with directions.

36 Brief for appellant at 9.

37 Brief for appellee at 3-4.

38 State v. Kantaras, supra note 7.

39 See State v. Lobato, supra note 31.