NE Code § 83-1,106 (2021)
2021 Nebraska Revised Statutes|Chapter 83 - State Institutions|83-1,106 - Maximum term; credit; how obtained.

83-1,106.  Maximum term; credit; how obtained.(1) Credit 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. This shall specifically include, but shall not be limited to, time spent in custody prior to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to delivery of the offender to the custody of the Department of Correctional Services, the county board of corrections, or, in counties which do not have a county board of corrections, the county sheriff.(2) Credit against the maximum term and any minimum term shall be given to an offender for time spent in custody under a prior sentence if he or she is later reprosecuted and resentenced for the same offense or for another offense based on the same conduct. In the case of such a reprosecution, this shall include credit in accordance with subsection (1) of this section for time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same conduct.(3) If an offender is serving consecutive or concurrent sentences, or both, and if one of the sentences is set aside as the result of a direct or collateral proceeding, credit against the maximum term and any minimum term of the remaining sentences shall be given for all time served since the commission of the offenses on which the sentences set aside were based.(4) If the offender is arrested on one charge and prosecuted on another charge growing out of conduct which occurred prior to his or her arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge which has not been credited against another sentence.(5) Credit for time served shall only be given in accordance with the procedure specified in this subsection:(a) Credit to an offender who is eligible therefor under subsections (1), (2), and (4) of this section shall be set forth as a part of the sentence; or(b) Credit to an offender who is eligible therefor under subsection (3) of this section shall only be given by the court in which such sentence was set aside by entering such credit in the final order setting aside such sentence.Source   Laws 1969, c. 817, § 37, p. 3091;   Laws 1972, LB 1499, § 6;   Laws 1988, LB 1054, § 1;   Laws 1993, LB 113, § 4. Annotations  1. Credit against sentence 2. Discretion of court 3. Not retrospective 4. Miscellaneous 1. Credit against sentence The credit for time served to which a defendant is entitled is an absolute and objective number that is established by the record. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020). Failing to give credit for time served, while erroneous, does not render the sentence void. State v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019). Pursuant to subsection (1) of this section, the defendant was not entitled to credit for time served during his pretrial detainment in Nebraska, following his extradition from Colorado, for time that occurred prior to Colorado's grant of parole, since he was in custody because of his Colorado sentence up until he was paroled. State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018). Under subsection (4) of this section, the conduct in question need not be the same or related to the conduct for which time was originally served. State v. Carngbe, 288 Neb. 347, 847 N.W.2d 302 (2014). Section 47-503 and subsection (1) of this section 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). A defendant ordered to complete a work ethic camp was "in custody." State v. Becker, 282 Neb. 449, 804 N.W.2d 27 (2011). Under this section, when consecutive sentences are imposed for two or more offenses, periods of presentence incarceration may be credited only against the aggregate of all terms imposed: an offender who receives consecutive sentences is entitled to credit against only the first sentence imposed, while an offender sentenced to concurrent terms in effect receives credit against each sentence. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011). Pursuant to subsection (1) of this section, a court must give credit for time served on a charge when a prison sentence is imposed for that charge. State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). The import of subsection (4) of this section is that all credit available due to presentence incarceration shall be applied, but only once. State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). When concurrent sentences are imposed, the credit is applied once, and the credit applied once, in effect, is applied against each concurrent sentence, because the longest sentence determines the offender's actual length of time in prison. State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). A defendant is provided credit for jail time which is time he or she spends in detention pending trial and sentencing. State v. Baker, 250 Neb. 896, 553 N.W.2d 464 (1996). Subsection (1) of this section requires that a defendant receive credit for time served pending the resolution of an appeal. State v. Marks, 248 Neb. 592, 537 N.W.2d 339 (1995). On being sentenced for life imprisonment upon conviction of first degree murder, defendant is not entitled to credit for time in custodial detention pending trial and sentence. State v. Masters, 246 Neb. 1018, 524 N.W.2d 342 (1994). In a criminal case, a judge in sentencing is required to separately determine, state, and grant the amount of credit on defendant's sentence to which defendant is entitled under subsection (1) of this section. State v. Esquivel, 244 Neb. 308, 505 N.W.2d 736 (1993). For purposes of subsection (1) of this section, "in custody" means judicially imposed physical confinement in a government facility authorized for detention, control, or supervision of a defendant before, during, or after a trial on a criminal charge. The "in-custody" credit against a sentence eventually imposed on a defendant ensures that the defendant is not incarcerated longer than the maximum period of incarceration statutorily prescribed as punishment for a particular offense. State v. Jordan, 240 Neb. 919, 485 N.W.2d 198 (1992). Home detention on probation, subject to electronic monitoring, is insufficiently restrictive to constitute "custody" under subsection (1) of this section. State v. Muratella, 240 Neb. 567, 483 N.W.2d 128 (1992). Overruling the holding in State v. Von Busch, 234 Neb. 119, 449 N.W.2d 237 (1989), which gave credit upon sentencing for "any previously served jail time," subsection (1) of this section refers only to any jail time served on the charges for which sentences were imposed. State v. Heckman, 239 Neb. 25, 473 N.W.2d 416 (1991). When a defendant is sentenced to an indefinite term up to the maximum prison term possible, credit must be given for any previously served jail time. State v. Von Busch, 234 Neb. 119, 449 N.W.2d 237 (1989). One sentenced to life imprisonment is not entitled to credit for time in custodial detention pending disposition of the proceedings on the charge levied. State v. Lynch, 215 Neb. 528, 340 N.W.2d 128 (1983). There is no requirement in this section that a defendant be awarded credit against a sentence for time spent in a mental institution. State v. Prosser, 209 Neb. 766, 311 N.W.2d 525 (1981). Authority to give credit for time served in custody lies with district court under this section. Under section in effect in 1970, only Director of Corrections had authority to allow credit 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. State v. Al-Hafeez, 208 Neb. 681, 305 N.W.2d 379 (1981). This section held constitutional and sentence affirmed where defendant's time in custody prior to sentence was considered by court at sentencing. Eutzy v. State, 199 Neb. 384, 258 N.W.2d 829 (1977). Where on motion for credit for prior jail time, sentencing judge found he had considered prior jail time, constitutional guarantees of due process and equal protection were not violated although the record at sentencing is silent on the subject. State v. Nelson, 189 Neb. 580, 203 N.W.2d 785 (1973). Credit for time served must be given against the minimum and maximum terms of a sentence. Credit for presentence incarceration is properly granted only against the aggregate of all terms imposed. State v. Sanchez, 2 Neb. App. 1008, 520 N.W.2d 33 (1994). 2. Discretion of court The crediting of prior jail time to a sentence imposed as the minimum permitted by statute is discretionary with the sentencing judge. Addison v. Parratt, 208 Neb. 459, 303 N.W.2d 785 (1981). A trial court may order that sentences be served consecutively, and has broad discretion in determining amount of credit for jail time. State v. Tweedy, 196 Neb. 251, 242 N.W.2d 629 (1976); State v. Tweedy, 196 Neb. 248, 242 N.W.2d 627 (1976). A trial court has broad discretion in determining the amount of credit to be allowed defendant for time spent in jail. State v. Tweedy, 196 Neb. 246, 242 N.W.2d 626 (1976). 3. Not retrospective This section does not apply retrospectively. State v. Keever, 234 Neb. 289, 450 N.W.2d 682 (1990). This section is not retrospective. Housand v. Sigler, 186 Neb. 414, 183 N.W.2d 493 (1971). 4. Miscellaneous Subsection (1) of this section 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 statute. State v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019). Jail time is commonly understood to be the time an accused spends in detention pending trial and sentencing. State v. Fisher, 218 Neb. 479, 356 N.W.2d 880 (1984). This section does not prohibit a second trial for offenses arising out of the same conduct, nor does it specifically indicate any direct federal-state application. State v. Pope, 190 Neb. 689, 211 N.W.2d 923 (1973). The phrase "in custody" under this section means judicially imposed physical confinement in a governmental facility authorized for detention, control, or supervision of a defendant before, during, or after a trial on a criminal charge. State v. Anderson, 18 Neb. App. 329, 779 N.W.2d 623 (2010).