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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. BARNES

Cite as 303 Neb. 167

State of Nebraska, appellee, v.

Richard C. Barnes, appel

___ N.W.2d ___

Filed May 17, 2019. No. S-18-875.

1. Judgments: Appeal and Error. When dispositive issues on appeal 

present questions of law, an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

2. Criminal Law: Judgments: Sentences: Appeal and Error. In a 

criminal case, the judgment from which the appellant may appeal is 

the sentence.

3. Judgments: Collateral Attack. When a judgment is attacked in a 

way other than by proceeding in the original action to have it vacated, 

reversed, or modified, or by a proceeding in equity to prevent its 

enforcement, the attack is a collateral attack.

4. ____: ____. Absent an explicit statutory or common-law authority permitting collateral attack upon a criminal judgment under other circumstances, only a void judgment may be collaterally attacked.

5. Sentences. A sentence outside of the period authorized for a valid crime 

is erroneous only; it is not a void sentence.

6. ____. Failing to give credit for time served, while erroneous, does not 

render the sentence void.

7. Criminal Law: Final Orders: Sentences: Collateral Attack. Neb. 

Rev. Stat. § 83-1,106(1) (Reissue 2014) does not set forth a right to collaterally attack the final judgment in a criminal case on the ground that 

credit for time served was not given as mandated by the statute.

Appeal from the District Court for Pierce County: James G. 

Kube, Judge. Affirmed

Richard C. Barnes, pro se.

Nebraska Supreme Court Online Library

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

06/07/2019 01:06 AM CDT
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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. BARNES

Cite as 303 Neb. 167

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg,

Freudenberg,

NATURE OF CASE

The defendant, who was sentenced in 1994, sought in 2018 

to have his sentence amended to reflect credit for time served 

by filing a “Motion/Request for Jail Credit.” The district court 

denied the motion, and the defendant appeals. We affirm.

BACKGROUND

In 1994, pursuant to a voluntary guilty plea, Richard C. 

Barnes was convicted on one count of first degree murder 

and one count of use of a weapon to commit a felony. He 

was sentenced to life imprisonment on the murder conviction 

and from 62⁄3 years’ to 20 years’ imprisonment on the use of a 

weapon conviction. The court did not give Barnes credit for 

time served.

Barnes did not file a direct appeal. In 2004, Barnes filed 

an amended motion seeking postconviction relief. He argued 

that defense counsel was ineffective by failing to file a direct 

appeal after Barnes requested that he do so. Barnes also argued 

that he had been denied due process and equal protection of 

the law, because the sentencing court failed to give him credit 

for time served against his sentence on the use of a weapon 

conviction. After an evidentiary hearing, Barnes’ motion for 

postconviction relief was denied.

In State v. Barnes,

1

 we affirmed the order denying postconviction relief. We held that the court did not clearly err 

in finding that Barnes did not ask his trial counsel to file a 

direct appeal. We thus affirmed the district court’s conclusion 

that defense counsel’s performance in failing to file a direct 

1 State v. Barnes, 272 Neb. 749, 724 N.W.2d 807 (2006).
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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. BARNES

Cite as 303 Neb. 167

appeal was not deficient. Regarding Barnes’ challenges to 

the sentencing order that failed to give Barnes credit for time 

served, we held that those challenges were procedurally barred 

because they could have been raised on direct appeal.

In 2018, Barnes, proceeding pro se, filed a “Motion/Request 

for Jail Credit Pursuant to N.R.S. sec: 83-1,106(1). State v. 

Esquinel, 244 Neb. 308 (1993).” The district court denied the 

motion, reasoning that it had no authority to amend the 1994 

sentencing order. Barnes appeals.

ASSIGNMENT OF ERROR

Barnes assigns that the “lower District Court erred in failing 

at the conclusion of the sentencing hearing by the failure of 

the district court to calculate the amount of credit to be given 

for time served.”

STANDARD OF REVIEW

[1] When dispositive issues on appeal present questions 

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

court below.2

ANALYSIS

Barnes argues that we should recognize the trial court plainly 

erred in failing to grant him credit for time served and that we 

should, as in the case of State v. Groff,

3

 remand the cause to 

the district court for a determination of credit for time served. 

State v. Groff, however, involved the direct appeal from the 

defendant’s convictions and sentences. This case involves a 

collateral attack.

[2-4] In a criminal case, the judgment from which the appellant may appeal is the sentence.4

 The sentence includes credit 

for time served under Neb. Rev. Stat. § 83-1,106(1) (Reissue 

2 State v. Jerke, 302 Neb. 372, 923 N.W.2d 78 (2019).

3 State v. Groff, 247 Neb. 586, 529 N.W.2d 50 (1995).

4 State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018).
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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. BARNES

Cite as 303 Neb. 167

2014).5 When a judgment is attacked in a way other than by 

proceeding in the original action to have it vacated, reversed, 

or modified, or by a proceeding in equity to prevent its enforcement, the attack is a collateral attack.6

 Absent an explicit statutory or common-law procedure permitting otherwise, only a 

void judgment may be collaterally attacked.7

[5,6] A sentence outside of the period authorized for a valid 

crime is erroneous only; it is not a void sentence.8 Thus, failing 

to give credit for time served, while erroneous, does not render 

the sentence void.9

[7] Barnes fails to present statutory or common-law authority for his 2018 motion collaterally attacking the erroneous, 

but not void, sentence rendered in 1994. Barnes purported 

to bring his motion under the authority of § 83-1,106(1) and 

State v. Esquivel.

10 Section 83-1,106(1) provides that “[c]redit 

against the maximum term and any minimum term shall be 

given to an offender for time spent in custody as a result of 

the criminal charge for which a prison sentence is imposed or 

as a result of the conduct on which such a charge is based.” 

Section 83-1,106(1) does not set forth a right to collaterally 

attack the final judgment in a criminal case on the ground 

that credit for time served was not given as mandated by the 

statute. While we held in State v. Esquivel that a judge is 

5 See, State v. Barnes, supra note 1; State v. Groff, supra note 3.

6 State v. Ratumaimuri, supra note 4.

7 See Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016). See, also, 

State v. Jerke, supra note 2; State v. Robertson, 294 Neb. 29, 881 N.W.2d 

864 (2016); State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015); 

State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013); State v. Smith, 

269 Neb. 773, 696 N.W.2d 871 (2005).

8 See Meyer v. Frakes, 294 Neb. 668, 884 N.W.2d 131 (2016). See, also, 

e.g., Hickman v. Fenton, 120 Neb. 66, 231 N.W. 510 (1930); In re Fanton, 

55 Neb. 703, 76 N.W. 447 (1898).

9 See State v. Barnes, supra note 1.

10 State v. Esquivel, 244 Neb. 308, 505 N.W.2d 736 (1993).
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STATE v. BARNES

Cite as 303 Neb. 167

required to separately determine, state, and grant the amount 

of credit on the defendant’s sentence to which the defendant 

is entitled under § 83-1,106(1), that case, like State v. Groff, 

was decided on direct appeal and does not provide authority 

for collaterally attacking a sentence that fails to grant credit 

for time served.

There is no authority for Barnes’ collateral attack on the 

1994 judgment through a motion for jail credit. Thus, the district court did not err in denying Barnes’ motion.

CONCLUSION

For the foregoing reasons, we affirm the order of the district court.

Affirmed