Saturday, September 19, 2009

Nebraska Supreme Court allows sentencing court to correct mistaken calculation of time served after sentencing. State v. Clark, S-08-735, 278 Neb. 557 The Lancaster County District Court judge gave an defendant more credit for time served than he actually served and the court attempted to correct the sentence for Class I misdemeanor sexual assault by noting the appropriate amount of credit. On May 19, 2008, the district court attempted to sentence defendant to 360 days in jail but incorrectly credited Defendant with 361 days’ time served. On June 12, the court entered a written sentencing order granting Defendant credit for 61 days’ time served, the amount of time actually served and reflected by the record. Defendant appealed, and the Nebraska Court of Appeals affirmed. We granted Defendant’s petition for further review. For different reasons, we affirm. A sentencing court must under Neb. Rev. Stat. § 47-503 (Reissue 2004), separately determine, state, and grant credit for time served, and must the court must set form those times as a part of the sentence, State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999). The judge was without discretion to award Defendant more credit for time served than he actually served. Accordingly the district court had authority to correct the erroneous portion of its sentencing pronouncement by giving Defendant the accurate amount of credit for time served as reflected by the record.

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