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STATE v. GALVAN

Cite as 305 Neb. 513

State of Nebraska, appellee, v. 

Braden M. Galvan, appellant.

___ N.W.2d ___

Filed April 10, 2020. Nos. S-19-623, S-19-624.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the 

lower court.

2. Sentences: Probation and Parole: Appeal and Error. An appellate 

court will not disturb a decision to impose imprisonment up to the 

remaining period of post-release supervision after revocation absent an 

abuse of discretion by the trial court.

3. ____: ____: ____. Whether a defendant is entitled to credit for time 

served and in what amount are questions of law, subject to appellate 

review independent of the lower court.

4. 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.

5. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

6. Sentences: Probation and Parole: Time. When determining the amount 

of time remaining on a term of post-release supervision, the court may 

include any period in which the probationer absconded.

7. Appeal and Error. An appellate court may, at its option, notice plain 

error.

8. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

Nebraska Supreme Court Online Library

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

05/08/2020 12:15 AM CDT
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justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

9. Sentences: Appeal and Error. A sentence that is contrary to the court’s 

statutory authority is an appropriate matter for plain error review.

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

statutory penalty for the crime.

11. ____. Generally, it is within a trial court’s discretion to direct that 

sentences imposed for separate crimes be served either concurrently 

or consecutively. This is so even when offenses carry a mandatory 

minimum sentence, unless the statute requires that consecutive sentences 

be imposed.

12. Criminal Law: Probation and Parole. The violation of probation is not 

itself a crime, but merely a mechanism which may trigger the revocation 

of a previously granted probation.

13. ____: ____. A motion to revoke probation is not a criminal proceeding.

14. Probation and Parole. A probation revocation hearing is considered 

a continuation of the original prosecution for which probation was 

imposed—in which the purpose is to determine whether a defendant has 

breached a condition of his or her existing probation, not to convict that 

individual of a new offense.

15. Sentences. Presentence credit is to be applied only once when the 

defendant has multiple charges or multiple cases pending simultaneously.

16. Sentences: Records. 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.

Appeals from the District Court for Hall County: Mark J. 

Young, Judge. Sentences affirmed in part as modified, and in 

part vacated.

Gerard A. Piccolo, Hall County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

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

Papik, and Freudenberg, JJ.
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STATE v. GALVAN

Cite as 305 Neb. 513

Funke, J.

In this appeal, Braden M. Galvan argues that the district 

court for Hall County exceeded its authority under Neb. Rev. 

Stat. § 29-2268(2) (Reissue 2016) by imposing consecutive 

5-month terms of imprisonment following Galvan’s revocation 

from post-release supervision in two cases. Upon review of the 

record, we find that Galvan’s second 5-month term of imprisonment must be vacated. In addition, we find that Galvan is 

entitled to jail time credit. Thus, regarding Galvan’s sentences, 

we affirm in part as modified, and in part vacate.

BACKGROUND

In October 2017, Galvan entered a plea of no contest to 

operating a motor vehicle to avoid arrest, a Class IV felony, 

and driving during suspension, first offense, a Class III misdemeanor. In December, the district court for Hall County 

sentenced Galvan to 2 years’ imprisonment and 12 months’ 

post-release supervision on the operating a motor vehicle to 

avoid arrest conviction and to 90 days’ imprisonment on the 

driving during suspension conviction. The court ordered the 

sentences to be served concurrently and awarded 76 days’ 

credit for time served.

In January 2018, in a new case in Hall County, Galvan pled 

no contest to assault by a confined person, a Class IIIA felony. 

The court sentenced Galvan to 180 days’ imprisonment and 12 

months’ post-release supervision, to be served consecutively to 

the sentences in the prior case.

Although his sentences were ordered to be served consecutively, Galvan began serving the post-release supervision 

portion of his sentences in both cases on October 10, 2018. 

The State moved to revoke Galvan’s post-release supervision in both cases on December 6, alleging that Galvan had 

failed to report to his probation officer, abstain from the use 

of controlled substances, and follow an individualized treatment plan.

The court held a hearing on the motions to revoke on 

April 16, 2019. Pursuant to an agreement with the State, 
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STATE v. GALVAN

Cite as 305 Neb. 513

Galvan admitted to the violations in both cases, and the court 

revoked his post-release supervision in both cases. The court 

revoked Galvan’s bond and remanded him into custody pending sentencing.

At the sentencing hearing, on June 19, 2019, Galvan’s counsel stated that the maximum sentence available to the court 

upon revocation from post-release supervision would be a term 

of imprisonment lasting until October 10, plus 70 days due 

to the time that Galvan had absconded from supervision. The 

court imposed a sentence of 5 months’ imprisonment in each 

case and ordered the sentences to run consecutively. The court 

awarded no credit for the time that Galvan spent in custody 

between the date his post-release supervision was revoked and 

the date of sentencing. Galvan appealed.

ASSIGNMENTS OF ERROR

Galvan assigns that the district court erred in (1) imposing 

consecutive sentences and (2) failing to award credit for time 

served after revocation, prior to sentencing.

STANDARD OF REVIEW

[1-3] Statutory interpretation presents a question of law, 

which an appellate court reviews independently of the lower 

court. 1 An appellate court will not disturb a decision to impose 

imprisonment up to the remaining period of post-release supervision after revocation absent an abuse of discretion by the trial 

court. 2 Whether a defendant is entitled to credit for time served 

and in what amount are questions of law, subject to appellate 

review independent of the lower court. 3

ANALYSIS

Galvan contends that the court exceeded its authority under 

§ 29-2268(2) in sentencing him to two consecutive terms of 5 

1 State v. Phillips, 302 Neb. 686, 924 N.W.2d 699 (2019).

2 Id.

3 Id.
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Cite as 305 Neb. 513

months’ imprisonment upon his revocation from post-release 

supervision. He further contends that the court should have 

awarded him credit for the time he spent in custody awaiting 

sentencing after his revocation.

[4,5] In considering Galvan’s arguments, we are guided by 

familiar rules of statutory construction. 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. 4

Components of a series or collection of statutes pertaining 

to a certain subject matter are in pari materia and should be 

conjunctively considered and construed to determine the intent 

of the Legislature, so that different provisions are consistent, 

harmonious, and sensible. 5

Post-release supervision is a form of probation. 6 Post-release 

supervision is defined by statute as “the portion of a split sentence following a period of incarceration under which a person 

found guilty of a crime . . . is released by a court subject to 

conditions imposed by the court and subject to supervision 

by the [Office of Probation Administration].” 7 Once a court 

revokes a probationer’s post-release supervision, it must then 

determine the appropriate term of imprisonment to be imposed. 

The controlling statute is § 29-2268, which provides:

(2) If the court finds that a probationer serving a term 

of post-release supervision did violate a condition of his 

or her post-release supervision, it may revoke the postrelease supervision and impose on the offender a term of 

imprisonment up to the remaining period of post-release 

supervision. The term shall be served in an institution 

under the jurisdiction of the Department of Correctional 

4 State v. Wal, 302 Neb. 308, 923 N.W.2d 367 (2019).

5 Id.

6 See, Neb. Rev. Stat. § 29-2246(4) (Reissue 2016); Phillips, supra note 1.

7 § 29-2246(13).
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Services or in county jail subject to subsection (2) of section 28-105. 8

[6] We held in State v. Phillips 9 that in order to calculate 

a probationer’s “remaining period of post-release supervision,” the court must subtract the number of days actually 

served from the number of days ordered to be served. When 

a court has pronounced the period of post-release supervision 

in terms of months, that period will need to be converted to 

a number of days in order to calculate the “remaining period 

of post-release supervision” under § 29-2268(2). 10 A calendar 

month is a period terminating with the day of the succeeding 

month, numerically corresponding to the day of its beginning, less one. 11 “Except as may be otherwise more specifically provided, the period of time within which an act is to 

be done in any action or proceeding shall be computed by 

excluding the day of the act, event, or default after which the 

designated period of time begins to run.” 12 When determining the amount of time remaining on a term of post-release 

supervision, the court may include any period in which the 

probationer absconded. 13

Plain Error

[7-10] Before we address Galvan’s argument regarding the “remaining period of post-release supervision” under 

§ 29-2268(2), we must first address the district court’s plain 

error in revoking Galvan’s second term of post-release supervision and in imposing a 5-month term of imprisonment for 

that term. An appellate court may, at its option, notice plain 

8 But see 2019 Neb. Laws, L.B. 686, § 8 (amending “remaining” to 

“original” in § 29-2268(2), operative September 1, 2019).

9 Phillips, supra note 1.

10 Id.

11 Id.

12 Neb. Rev. Stat. § 25-2221 (Reissue 2016).

13 Phillips, supra note 1.
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error. 14 Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such 

a nature that to leave it uncorrected would cause a miscarriage 

of justice or result in damage to the integrity, reputation, and 

fairness of the judicial process. 15 A sentence that is contrary to 

the court’s statutory authority is an appropriate matter for plain 

error review. 16 A sentence is illegal when it is not authorized by 

the judgment of conviction or when it is greater or less than the 

permissible statutory penalty for the crime. 17

Galvan was convicted of two separate felonies, and as 

part of his sentence in each case, he was ordered to serve 

a 12-month term of post-release supervision. Even though 

Galvan’s sentences were ordered to be served consecutively, 

after he completed the initial incarceration portion of his 

sentences, he began serving both terms of post-release supervision on the same date. Upon the State’s motions to revoke 

each term, the court sustained the motions and revoked both 

terms and imposed imprisonment for both terms. The court’s 

revocation and imposition of imprisonment in Galvan’s second felony case constitutes plain error, because the court was 

required by law to require that Galvan serve his sentences 

consecutively.

[11] Generally, it is within a trial court’s discretion to 

direct that sentences imposed for separate crimes be served 

either concurrently or consecutively. 18 Such discretion applies 

equally to terms of imprisonment and terms of post-release 

supervision 19 and presumably includes discretion to make one 

form consecutive and the other concurrent. This is so even 

14 Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

15 Id.

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

17 Id.

18 State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).

19 See id. See, also, State v. Peters, 231 Neb. 242, 435 N.W.2d 675 (1989).
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when offenses carry a mandatory minimum sentence, unless 

the statute requires that consecutive sentences be imposed. 20

Here, Galvan was convicted of assault by a confined person, 

in violation of Neb. Rev. Stat. § 28-932(1) (Reissue 2016). 

With regard to sentencing, § 28-932(2) provides: “Sentences 

imposed under subsection (1) of this section shall be consecutive to any sentence or sentences imposed for violations 

committed prior to the violation of subsection (1) of this 

section . . . .” The use of the word “shall” in § 28-932(2) 

mandates consecutive sentencing. 21 In this matter, 1 month 

prior to his sentence in the assault by a confined person 

case, Galvan was sentenced on one count of operating a 

motor vehicle to avoid arrest. Under the plain language of 

§ 28-932(2), the district court was required by law to order 

the assault by a confined person sentence to run consecutive 

to the prior sentence.

In January 2018, the court ordered that Galvan serve his 

sentences consecutively. Because Galvan’s sentences were to 

be served consecutively, and a term of post-release supervision was imposed as a part of each sentence, Galvan was 

required to serve the terms of post-release supervision consecutively. Although post-release supervision remains a relatively new concept in Nebraska sentencing law, we have 

previously recognized that terms of post-release supervision 

may be served consecutively. For example, as relevant here, in 

State v. Vanness,

 22 this court approved consecutive sentences 

of 12 months’ imprisonment and 9 months of post-release 

supervision and 10 months’ imprisonment and 9 months of 

post-release supervision. We described the later 9-month term 

of post-release supervision as “a period of 9 months of successive and additional post[-]release supervision.” 23

20 Vanness, supra note 18.

21 See State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).

22 Vanness, supra note 18.

23 Id. at 170, 912 N.W.2d at 746.
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When a consecutive sentence is imposed, the second sentence begins only upon the termination of the prior term of 

imprisonment. 24 A prisoner who receives multiple consecutive 

sentences does not serve all sentences simultaneously, but 

serves only one sentence at a time. 25 As referenced above, 

§ 29-2268(2) provides: “If the court finds that a probationer 

serving a term of post-release supervision did violate a condition of his or her post-release supervision, it may revoke the 

post-release supervision and impose on the offender a term 

of imprisonment . . . .” (Emphasis supplied.) According to 

the plain and ordinary meaning of § 29-2268(2), a court’s 

authority to revoke a probationer and impose a term of 

imprisonment extends only to the single term of post-release 

supervision that the probationer is serving, provided that the 

probationer has not otherwise been ordered to serve multiple 

terms concurrently.

Our understanding that Galvan had not yet begun serving his second term of post-release supervision is further 

confirmed by Neb. Rev. Stat. § 29-2204.02(7)(d) (Reissue 

2016), which states that “[i]f the offender has been sentenced to two or more determinate sentences and one or 

more terms of post-release supervision, the offender shall 

serve all determinate sentences before being released on postrelease supervision.” In this case, Galvan received determinate sentences of 2 years’ imprisonment for operating a motor 

vehicle to avoid arrest and 180 days’ imprisonment for assault 

by a confined person. Even though the split sentences were 

ordered to run consecutively, Galvan complied with the 

requirements of § 29-2204.02(7)(d) by completing the incarceration portion of his sentences before being released on 

post-release supervision. To hold otherwise would grant prisoners sentenced to consecutive determinate sentences freedom 

24 U.S. v. Randall, 472 F.3d 763 (10th Cir. 2006), citing Price v. State, 28 

Kan. App. 2d 854, 21 P.3d 1021 (2001).

25 Id.
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from confinement during intervening periods of post-release 

supervision. 26 However, once the court revoked Galvan’s postrelease supervision in his first case and sentenced him to a 

5-month term of imprisonment, he received another determinate sentence, and because the terms were ordered to run consecutively, the court erred by not requiring him to complete 

serving the 5-month term of imprisonment in his first case 

before releasing him on post-release supervision in his second 

case. Under § 29-2204.02(7)(d), Galvan should not have been 

permitted to commence serving his second term of post-release 

supervision. Because Galvan was not serving his second term 

of post-release supervision, the court was not yet authorized 

to act upon that second term under § 29-2268(2). Galvan was 

required by law under § 28-932(2) to serve the terms of postrelease supervision consecutively. The court’s revocation of 

Galvan’s second term of post-release supervision and imposition of imprisonment for that term, prior to Galvan’s completion of his first term, is plain error. This affected a substantial 

right of Galvan, and to leave this error uncorrected would 

amount to a miscarriage of justice. We therefore vacate the 

court’s revocation and imposition of imprisonment in Galvan’s 

assault by a confined person case.

Because the court had no discretion regarding the consecutive nature of Galvan’s sentences, we need not address the issue 

of whether a court may in its discretion order terms of imprisonment imposed upon revocation to be served consecutively.

No Abuse of Discretion 

Under § 29-2268(2)

We next address Galvan’s argument that the court exceeded 

its statutory authority under § 29-2268(2), to the extent that it 

remains at issue. For purposes of calculating the “remaining 

period of post-release supervision” under § 29-2268(2), we 

consider only the time Galvan served on his first term of postrelease supervision.

26 See State v. Malone, 928 S.W.2d 41 (Tenn. Crim. App. 1995).
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Regarding Galvan’s operating a motor vehicle to avoid arrest 

conviction, a Class IV felony, he received the maximum sentence of 2 years’ imprisonment and 12 months’ post-release 

supervision. While there is limited information in our record 

regarding Galvan’s completion of the incarceration portion of 

his split sentence, it is undisputed that he began serving postrelease supervision on October 10, 2018, and was originally 

scheduled to complete serving this term on October 10, 2019. 

The court revoked Galvan’s post-release supervision on April 

16, 2019. At that point, Galvan had served 188 days of the original term of 12 months, or 365 days, with 177 days remaining 

to be served. In addition, the parties agree that the district court 

correctly extended Galvan’s “remaining period of post-release 

supervision” by 70 days due to his period of abscondment. 

Therefore, at the time the court revoked Galvan’s post-release 

supervision, he had 247 days remaining to be served. As of 

Galvan’s sentencing on June 19, 2019, the court was authorized 

under § 29-2268(2) to impose a term of imprisonment up to 

February 21, 2020, or a term of 8 months 2 days. The court 

imposed a 5-month term of imprisonment in Galvan’s operating 

a motor vehicle to avoid arrest case.

Galvan acknowledges that based on the calculation above, 

the court had the authority to impose a single 5-month term 

of imprisonment under § 29-2268(2). Because the maximum 

term of imprisonment under § 29-2268(2) applies to a single 

conviction, and because the court had the authority to impose a 

5-month term of imprisonment for Galvan’s operating a motor 

vehicle to avoid arrest conviction, Galvan’s argument is without merit.

Credit for Time Served

Here, Galvan contends the trial court was required to credit 

him for the 64 days he spent in custody awaiting sentencing 

after he had been revoked from post-release supervision. As a 

matter of statute and case law, we agree with Galvan.

Neb. Rev. Stat. § 47-503(1) (Reissue 2010) provides credit 

for “time spent in jail as a result of the criminal charge for 
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which the jail term is imposed.” Galvan’s revocation from postrelease supervision did not result in new criminal charges. 27

The 64 days Galvan spent in confinement after he was revoked 

from post-release supervision was a result of the original criminal charges.

[12-14] The violation of probation is not itself a crime, but 

merely a mechanism which may trigger the revocation of a 

previously granted probation. 28 A motion to revoke probation 

is not a criminal proceeding. 29 A probation revocation hearing is considered a continuation of the original prosecution 

for which probation was imposed—in which the purpose is to 

determine whether a defendant has breached a condition of his 

or her existing probation, not to convict that individual of a 

new offense. 30 Accordingly, jail time after revocation of postrelease supervision, a form of probation, constitutes continuing 

punishment for the crime for which post-release supervision 

was originally imposed.

Postrevocation penalties are attributable to the original conviction. 31 The post-release supervision portion of Galvan’s 

sentence included the contingency that he could be imprisoned 

if the post-release supervision was revoked. Galvan triggered 

that contingency when he violated the terms of post-release 

supervision and it was revoked, but he did not commit a 

new crime or receive a sentence on a new crime. The length 

of time Galvan spent in jail after revocation relates back to 

the sentence originally imposed for the criminal conviction. 32

27 See State v. Corkum, 224 N.C. App. 129, 735 S.E.2d 420 (2012).

28 State v. Caniglia, 272 Neb. 662, 724 N.W.2d 316 (2006); State v. Wragge, 

246 Neb. 864, 524 N.W.2d 54 (1994); State v. Painter, 223 Neb. 808, 394 

N.W.2d 292 (1986).

29 In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 783 (2010).

30 Id.

31 Johnson v. United States, 529 U.S. 694, 120 S. Ct. 1795, 146 L. Ed. 2d 

727 (2000).

32 See Medina v. State, 418 P.3d 861 (Alaska App. 2018).
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Therefore, § 47-503(1) applies to the time Galvan spent in jail 

after revocation.

[15] Section 47-503 is intended to ensure that defendants 

receive all the credit against their jail sentence to which they 

are entitled—no less, and no more. 33 Presentence credit is 

to be applied only once when the defendant has multiple 

charges or multiple cases pending simultaneously. 34 Here, 

Galvan’s days of confinement have not been credited to any 

other sentence. That fact distinguishes this case from the 

jail time credit issue addressed in Phillips.

 35 In that case, 

the defendant did not spend any time in jail after revocation 

and before sentencing under § 29-2268(2). Rather, the court 

revoked the probationer’s post-release supervision and sentenced him on the same day. The defendant requested credit 

for time spent in custody prior to revocation, but on appeal, 

we concluded that his confinement time was an aspect of 

the administration of his sentence of post-release supervision, and not as a result of the original charge. 36 As such, 

the defendant’s confinement time was credited against his 

remaining term of post-release supervision. This is unlike 

the present case, in which Galvan’s confinement time has 

not been credited against his remaining term of post-release 

sentence or any other sentence. Failing to award Galvan jail 

time credit would be double punishment. 37

It is worth noting that since our opinion in Phillips, the 

Legislature amended § 29-2268(2), operative September 1, 

2019, after Galvan’s June 2019 sentencing, to state that “[i]f a 

sentence of incarceration is imposed upon revocation of postrelease supervision, the court shall grant jail credit for any days 

33 State v. Harms, 304 Neb. 441, 934 N.W.2d 850 (2019).

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

Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).

35 Phillips, supra note 1.

36 Id.

37 See State v. Rawls, 219 N.J. 185, 97 A.3d 1142 (2014).
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spent in custody as a result of the post-release supervision, 

including custodial sanctions.”

[16] We determine that Galvan is entitled to 64 days of jail 

time credit. 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. 38 In addition to vacating a portion of 

the court’s sentencing order, as discussed above, we modify 

the order to reflect the correct number of days of credit for 

time served.

CONCLUSION

We vacate the 5-month term of imprisonment imposed upon 

revocation in Galvan’s assault by a confined person case. 

Galvan will not commence serving the post-release supervision 

term in his assault by a confined person case until he has completed serving his post-release supervision term in his operating a motor vehicle to avoid arrest case. We affirm the 5-month 

term of imprisonment imposed in Galvan’s operating a motor 

vehicle to avoid arrest case, as modified by crediting Galvan 

with 64 days of time served.

Sentences affirmed in part as modified,

and in part vacated.

38 State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).