Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/02/2016 09:10 AM CDT




                                                        - 668 -
                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                  MEYER v. FRAKES
                                                  Cite as 294 Neb. 668




                  Barney D. Meyer, appellee, v. Scott R. Frakes, director,
                          Nebraska Department of Correctional
                               Services, et al., appellants.
                                                    ___ N.W.2d ___

                                        Filed September 2, 2016.   No. S-16-417.

                1.	 Habeas Corpus: Appeal and Error. On appeal of a habeas corpus peti-
                     tion, an appellate court reviews the trial court’s factual findings for clear
                     error and its conclusions of law de novo.
                2.	 Habeas Corpus. Where a party is unlawfully restrained of his or her
                     liberty, the writ of habeas corpus is the appropriate remedy.
                 3.	 ____. Habeas corpus is a collateral proceeding and as such cannot be
                     used as a substitute for an appeal or proceedings in error.
                4.	 Habitual Criminals: Sentences. A separate sentence for the nonexistent
                     crime of being a habitual criminal is void.
                5.	 Criminal Law: Habitual Criminals. Habitual criminality is a state, not
                     a crime. There is no such offense as being a habitual criminal.
                6.	 Sentences. A sentence outside of the period authorized by the relevant
                     sentencing statute is merely erroneous and is not void.
                7.	 Habeas Corpus: Judgments: Sentences. Habeas corpus will not lie
                     upon the ground of mere errors and irregularities in the judgment or
                     sentence rendering it not void, but only voidable.
                8.	 Double Jeopardy: Sentences. Where a defendant has a legitimate
                     expectation of finality, then an increase in his or her sentence in a sec-
                     ond proceeding violates the prohibition of the Double Jeopardy Clause
                     against multiple punishments for the same offense.
                9.	 Sentences: Notice. A defendant may acquire a legitimate expectation of
                     finality in an erroneous sentence if the sentence has been substantially or
                     fully served, unless the defendant was on notice that the sentence might
                     be modified.

                 Appeal from the District Court for Lancaster County: Jodi
               Nelson, Judge. Affirmed.
                             - 669 -
          Nebraska Supreme Court A dvance Sheets
                  294 Nebraska R eports
                       MEYER v. FRAKES
                       Cite as 294 Neb. 668

  Douglas J. Peterson, Attorney General, George R. Love, and
Kale Burdick for appellees.
  Gerald L. Soucie for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and
K elch, JJ.
   Per Curiam.
   On April 20, 2016, the district court for Lancaster County
granted a writ of habeas corpus to Barney D. Meyer. This mat-
ter arises from an appeal filed by Scott R. Frakes, director of
the Nebraska Department of Correctional Services; Richard
Cruickshank, warden of the Nebraska State Penitentiary; and
the Nebraska Department of Correctional Services (collec-
tively the appellants). As of the date of this opinion, Meyer
remains in the custody of the department because he is unable
to meet the conditions of his bond imposed by the district
court. For the reasons set forth, we sustain Meyer’s motion for
summary affirmance and direct that Meyer be released from
custody forthwith.
                       BACKGROUND
                  Convictions and Sentences
   Meyer was sentenced by the district court for Pierce County,
Nebraska, on March 29, 2012, in case No. CR11-12, to an
indeterminate prison term of 2 to 4 years for the crime of
theft by receiving stolen property. He was given credit for 54
days already spent in custody. This sentence was ordered to
be served consecutively to another sentence imposed in case
No. CR11-29 on the same day.
   In case No. CR11-29, Meyer was charged in the infor-
mation with count I, burglary, a Class III felony, and with
“Count II — Enforceable as a Habitual Criminal.” The court
sentenced Meyer on count I to an indeterminate prison term of
2 to 4 years. He was given credit for 165 days. On count II,
habitual criminal, Meyer was convicted and sentenced to an
indeterminate prison term of 10 years. It was ordered that the
                                     - 670 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               MEYER v. FRAKES
                               Cite as 294 Neb. 668

sentences in case No. CR11-29 were to be served concurrently
to one another, but consecutively to the sentence imposed in
case No. CR11-12. Neither the State nor Meyer appealed the
convictions or sentences imposed in either case No. CR11-12
or case No. CR11-29.
                    Writ of H abeas Corpus
   Meyer petitioned the district court for a writ of habeas
corpus, alleging that the sentence imposed in count II of the
information in case No. CR11-29, habitual criminal, was a
void sentence. Meyer alleged he had served the valid sen-
tences imposed for theft in case No. CR11-12 and for burglary
in case No. CR11-29. He alleged that he is now being held
beyond the lawful term of his sentences and is entitled to
be discharged.
   The district court granted the writ of habeas corpus. The
court concluded that as to count II in case No. CR11-29,
the separate offense of being a habitual criminal was a
void sentence.
   The court relied in part upon State v. Rolling,1 in which
we stated that the habitual criminal statute did not establish
a separate offense. We held that the habitual criminal statute
provides an enhancement of the penalty for a felony conviction
where one is also found to be a habitual criminal.
   In Rolling, the defendant was charged with four substantive
felonies: two felony theft offenses, attempted armed robbery,
and use of a weapon to commit a felony. He was addition-
ally charged with a fifth count of being a habitual criminal.
He was found guilty of the four substantive felonies and sen-
tenced by the trial court on the first four counts to terms of
imprisonment, none of which exceeded 10 years. He was also
sentenced to a term of imprisonment as a habitual criminal.
He appealed, claiming that the evidence was insufficient to
have found him guilty and that the sentences imposed were too
harsh and an abuse of discretion.

 1	
      State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981).
                                       - 671 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                                MEYER v. FRAKES
                                Cite as 294 Neb. 668

   On direct appeal, we found plain error in the sentencing of
the defendant separately as a habitual criminal and pointed out
that under the provisions of Neb. Rev. Stat. § 29-2221 (Reissue
1979), one is not sentenced as a habitual criminal. The habitual
criminal statute is not a separate offense, but provides an
enhancement of a penalty with a minimum prison sentence of
10 years and a maximum sentence of 60 years.
   In Rolling, we stated that State v. Gaston2 set forth the
proper procedure to be followed. In Gaston, the defendant
was found guilty of forgery and, in a subsequent proceeding,
of being a habitual criminal. The district court, instead of
imposing one sentence on the forgery conviction for the man-
datory minimum prison sentence of 10 years and a maximum
sentence of 60 years required by § 29-2221, imposed separate
prison sentences of 1 to 2 years on the forgery conviction and
20 to 30 years on the conviction under § 29-2221. On the
day the sentence was pronounced, the court committed the
defendant to the Nebraska Penal and Correctional Complex by
entering a formal written journal entry of judgment and com-
mitment for an indeterminate prison term of 20 to 30 years on
the charge of forgery and being a habitual criminal. We held
that the written entry of judgment stated a proper sentence,
but that it did not conform to the two sentences imposed in
open court.
   The defendant in Gaston contended on direct appeal that
the second and separate habitual criminal sentence was illegal
and void. We stated that “[o]n direct appeal this court has the
power to remand a cause for a lawful sentence where the one
pronounced was void as being beyond the power of the trial
court to pronounce and where the accused himself invoked
appellate jurisdiction for the correction of errors.”3
   But here, the district court, in granting Meyer habeas relief,
found most apposite Kuwitzky v. O’Grady,4 which presented

 2	
      State v. Gaston, 191 Neb. 121, 214 N.W.2d 376 (1974).
 3	
      Id. at 123, 214 N.W.2d at 377. See, also, State v. Rolling, supra note 1.
 4	
      Kuwitzky v. O’Grady, 135 Neb. 466, 282 N.W. 396 (1938).
                                    - 672 -
               Nebraska Supreme Court A dvance Sheets
                       294 Nebraska R eports
                              MEYER v. FRAKES
                              Cite as 294 Neb. 668

a habeas action attacking the validity of the habitual criminal
sentence, rather than through a direct appeal, as was the case
in Rolling and Gaston. The court found Kuwitzky was nearly
identical to the case at bar. The petitioner in Kuwitzky peti-
tioned for a writ of habeas corpus, claiming his sentence under
a second count for being a habitual criminal was null and void.
The trial court denied the writ, and the petitioner appealed.
We reversed the trial court’s decision, concluding that the peti-
tioner had been improperly sentenced separately as a habitual
criminal and that he was unlawfully imprisoned and entitled to
be released and discharged.
   In the present case, the court found that Meyer was similarly
wrongfully sentenced in a separate count for being a habitual
criminal. It concluded the sentence for being a habitual crimi-
nal was void. It granted the petition for writ of habeas corpus,
concluding that Meyer was being held on a void sentence.
Pursuant to Neb. Rev. Stat. § 29-2823 (Reissue 2008), the
court set the matter for hearing for the determination of bond
pending the appeal. As of this date, Meyer remains in the cus-
tody of the appellants, having been unable to meet the condi-
tions for bond imposed by the district court.
                  STANDARD OF REVIEW
  [1] On appeal of a habeas corpus petition, an appellate
court reviews the trial court’s factual findings for clear error
and its conclusions of law de novo.5
                          ANALYSIS
   [2,3] The writ of habeas corpus has long been recognized
in Nebraska. Where a party is unlawfully restrained of his
or her liberty, the writ of habeas corpus is the appropriate
remedy.6 In an action for a writ of habeas corpus, including
one which challenges extradition proceedings, the burden of
proof is upon the petitioner to establish a claim that his or her

 5	
      Anderson v. Houston, 277 Neb. 907, 766 N.W.2d 94 (2009).
 6	
      Rose v. Vosburg, 107 Neb. 847, 187 N.W. 46 (1922).
                                     - 673 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               MEYER v. FRAKES
                               Cite as 294 Neb. 668

detention is illegal.7 Habeas corpus is a collateral proceeding
and as such cannot be used as a substitute for an appeal or
proceedings in error.8
   In his petition for writ of habeas corpus, Meyer alleges that
the sentence imposed for being a habitual criminal in case
No. CR11-29 is a void sentence. He further alleges that he has
served the valid sentences imposed in cases Nos. CR11-12 and
CR11-29 and that he is now being held beyond the lawful term
of his sentences and is entitled to be discharged.
   In addressing his motion for summary affirmance, two
questions are presented. First, Is being a habitual criminal a
separate crime for which Meyer can be sentenced separately,
such that his separate 10-year prison sentence for being a
habitual criminal that he is currently serving is valid? Second,
Is the sentence served by Meyer on the conviction for burglary
a facially valid sentence that has been fully served by Meyer
and cannot now be collaterally attacked by the State in an
attempt to increase that sentence?
                        H abitual Criminal
   [4,5] As to the first question, the parties do not dispute that
the habitual criminal statute is not a separate offense and that
it instead provides an enhancement of the conviction com-
mitted by one found to be a habitual criminal.9 As already
described, in Rolling,10 we held that the habitual criminal
statute is not a separate offense, but, rather, provides an
enhancement of the penalty with a minimum prison sentence
of 10 years and a maximum sentence of 60 years for each
count committed by one found to be a habitual criminal. And
in other cases, such as Kuwitzky, which presented collateral
attacks on the separate sentence for being a habitual criminal,
we have explained that a separate sentence for the nonexistent

 7	
      Dovel v. Adams, 207 Neb. 766, 301 N.W.2d 102 (1981).
 8	
      Sileven v. Tesch, 212 Neb. 880, 326 N.W.2d 850 (1982).
 9	
      See State v. Rolling, supra note 1.
10	
      Id.
                                    - 674 -
               Nebraska Supreme Court A dvance Sheets
                       294 Nebraska R eports
                              MEYER v. FRAKES
                              Cite as 294 Neb. 668

crime of being a habitual criminal is void.11 Habitual criminal-
ity is a state, not a crime.12 There is no such offense as being
a habitual criminal.13
   Having thus held that the habitual criminal statute is not a
separate offense and cannot be charged and sentenced as such,
we hold that Meyer’s separate sentence of being a habitual
criminal is void. This is not a contention disputed by either
party. We proceed to determine whether the sentence served
by Meyer on his conviction for burglary was a valid sentence
which has now been served by Meyer.
                     Sentence for Burglary
   The appellants assert as to the second question that Meyer’s
continued detention is not illegal, because his burglary sen-
tence should have been enhanced to a minimum prison term of
10 years. They claim that by challenging the separate sentence
for being a habitual criminal, Meyer has not challenged the
“judgment” of the district court finding him to be a habitual
criminal.14 We are perplexed as to how Meyer’s claim that his
sentence to count II, habitual criminal, is void, leaves unchal-
lenged a “judgment” of being a habitual criminal. In any event,
the appellants argue that because the habeas corpus statute
refers to having fully been “unlawfully” deprived of liberty
or imprisoned “without any legal authority,”15 they may col-
laterally attack the fully served burglary sentence in Meyer’s
habeas action. We disagree. Meyer has fully served two of the
three sentences imposed by the court. Only the sentence he has
not fully served is void.
   We agree with the district court that Kuwitzky is factually
similar to the case at bar. In Kuwitzky, we granted habeas

11	
      See, Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403 (1947); Kuwitzky v.
      O’Grady, supra note 4.
12	
      See Kuwitzky v. O’Grady, supra note 4.
13	
      See id.
14	
      Brief for appellants at 6.
15	
      See Neb. Rev. Stat. § 29-2801 (Reissue 2008).
                                     - 675 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               MEYER v. FRAKES
                               Cite as 294 Neb. 668

relief for a petitioner who had fully served his unenhanced
sentence and who had also been separately sentenced for being
a habitual criminal. The information had charged the petitioner
with one count of burglary and a second count of being a
habitual criminal. The petitioner had been convicted of several
prior felonies, and he pled guilty to both counts. The petitioner
was sentenced to prison terms of 5 years on the burglary count
and 10 years for the habitual criminal count. The sentences
were ordered to run concurrently.16
   The parties stipulated that the petitioner had served his first
prison sentence of 5 years under the first count and that he
had also served 2 months 16 days of the sentence given for
being a habitual criminal. The question was whether his con-
tinued detention in the penitentiary was lawful.
   We explained that the previous convictions on the several
felonies alleged would, if proved, show that the petitioner
was a habitual criminal and permit his punishment for the act
of burglary in count I to be increased, but that the trial court
was without authority to render a distinct separate judgment
and sentence upon count II, habitual criminal. The sentence
on count II for being a habitual criminal was therefore void.
Because the petitioner had fully served the sentence imposed
for burglary, we concluded that the petitioner was being unlaw-
fully imprisoned without due process of law and was entitled to
be released and discharged.
   The appellants assert that reliance on Kuwitzky is misplaced,
because the State did not challenge therein the validity of the
unenhanced burglary sentence. But in an action that released
the petitioner from the total sentence the court intended to
impose for the acts committed, we could have recognized, sua
sponte, that the unenhanced burglary sentence was insufficient
and that therefore, the petitioner was not unlawfully restrained.
We did not do so. To the contrary, our conclusion that the
petitioner’s continuing incarceration was unlawful implicitly
rejected any theory that the petitioner could continue to be

16	
      Kuwitzky v. O’Grady, supra note 4.
                                     - 676 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               MEYER v. FRAKES
                               Cite as 294 Neb. 668

lawfully detained by virtue of the fact that there was a finding
he was a habitual criminal and the burglary sentence failed
to impose the mandatory minimum required by the habitual
criminal statute.
   Gamron v. Jones,17 reiterates this point. In Gamron, we again
found on habeas that a separate habitual criminal sentence was
void. And in Gamron, the petitioner had not even been charged
under an improper information; the court simply sentenced the
petitioner to a separate prison term for being a habitual crimi-
nal, to be served consecutively to the prison term imposed for
the underlying crime of chicken stealing.
   Although the unenhanced 2-year sentence for the underlying
crime had not yet been served, the petitioner argued he was
unlawfully detained, because the 2-year prison sentence was
in excess of the statutory maximum sentence of 1 year for that
crime. Thus, the petitioner challenged the validity of both the
separate sentence for being a habitual criminal and the unen-
hanced sentence for the underlying crime.
   The State argued that the habitual criminal sentence and the
unenhanced sentence for the underlying crime were but one
sentence. We, however, saw “no reasonable basis for constru-
ing the judgment of the court to be other than one imposing
two sentences.”18
   In response to the petitioner’s attack on the sentence for
chicken stealing, we emphasized that in contrast to a sen-
tence for a nonexistent crime, failure by the court to impose
a sentence inside of the mandatory statutory limits for a valid
crime is erroneous only; it is not a void sentence subject
to collateral attack in a habeas action.19 We held that only
the conviction and sentence to a separate offense of being a
habitual criminal was void. We concluded that because the
petitioner had not yet served the merely erroneous 2-year

17	
      Gamron v. Jones, supra note 11.
18	
      Id. at 646, 28 N.W.2d at 404.
19	
      See Gamron v. Jones, supra note 11.
                                     - 677 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               MEYER v. FRAKES
                               Cite as 294 Neb. 668

s­ entence for chicken stealing, habeas corpus would not yet lie
 to secure his release.
    [6] In several other cases, we have similarly said that a
 sentence outside of the period authorized by the relevant sen-
 tencing statute is merely erroneous and is not void.20 “‘If the
 court has jurisdiction of the person of the accused and of the
 crime charged in the information and does not exceed its lawful
 authority in passing sentence, its judgment is not void whatever
 errors may have preceded the rendition thereof.’”21
    [7] Further, we have repeatedly held that habeas corpus will
 not lie on the ground that the sentence is merely erroneous.22
 We have explained that only an “absolutely void”23 judgment
 is subject to collateral attack.24 A judgment, even if erroneous,
 cannot be collaterally assailed.25 Habeas corpus cannot take
 the place of a writ of error or a direct appeal.26 Thus, “habeas
 corpus will not lie upon the ground of mere errors and irregu-
 larities in the judgment or sentence rendering it not void, but
 only voidable.”27
    Under this principle, we held in Hickman v. Fenton28 that
 when there was no direct appeal or writ of error and the

20	
      See, State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009); State v.
      Conover, 270 Neb. 446, 703 N.W.2d 898 (2005); Hickman v. Fenton, 120
      Neb. 66, 231 N.W. 510 (1930). See, also, State v. Gunther, 271 Neb. 874,
      716 N.W.2d 691 (2006); State v. Alford, 6 Neb. App. 969, 578 N.W.2d 885
      (1998).
21	
      Hickman v. Fenton, supra note 20, 120 Neb. at 70, 231 N.W. at 512.
22	
      See, McElhaney v. Fenton, 115 Neb. 299, 212 N.W. 612 (1927); In re
      Fanton, 55 Neb. 703, 76 N.W. 447 (1898); State v. Clark, 17 Neb. App.
      361, 762 N.W.2d 64 (2009); State v. Wayt, 13 Neb. App. 759, 701 N.W.2d
      841 (2005).
23	
      Von Bokelman v. Sigler, 175 Neb. 305, 309, 121 N.W.2d 572, 575 (1963).
24	
      See State v. Wessels, 232 Neb. 56, 439 N.W.2d 484 (1989).
25	
      Id.; Shade v. Kirk, 227 Neb. 775, 420 N.W.2d 284 (1988).
26	
      See Hulbert v. Fenton, 115 Neb. 818, 215 N.W. 104 (1927).
27	
      Id. at 821, 215 N.W. at 105.
28	
      Hickman v. Fenton, supra note 20.
                                     - 678 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               MEYER v. FRAKES
                               Cite as 294 Neb. 668

d­ efendant had begun to serve his sentence, the district court
 had no power to vacate that sentence on the ground that it
 imposed a minimum period less than that mandated by the
 sentencing statute.
    The sentencing court in Hickman had resentenced the
 defend­ant to a minimum prison term of 25 years in order to
 correct its prior error imposing a prison term of 3 to 5 years
 for a crime punishable by a mandatory minimum of 20 years.
 The defendant brought a habeas action on the ground that the
 second sentence was void, because the first sentence was not
 challenged on direct appeal or by petition in error, and he had
 already served the first sentence that imposed a prison term
 of 3 to 5 years. We found merit to the defendant’s contention
 and granted habeas relief on the ground that he was being
 illegally detained—despite the fact that the sentence he had
 served was less than the mandatory minimum required by law
 for his crime.
    In doing so, we again implicitly rejected any argument that
 the defendant was not illegally detained because his prison
 sentence of 3 to 5 years was less than the 20 years as required
 by law. Rather, we explicitly rejected the notion that the 3-to-
 5-year prison sentence would be subject to a collateral attack
 as being outside the court’s statutory scope of sentencing
 authority. We said:
          The source of power to vacate a penitentiary sentence
       after a portion of it has been served and to impose a new
       and greater penalty under the same [conviction] has not
       been pointed out, except in cases of void sentences and
       in cases where the convict himself applied for a rehear-
       ing or invoked appellate jurisdiction for the correction
       of errors.29
    And we cited to In re Fanton30 for the proposition that a
 sentence outside of the term of punishment set forth in the

29	
      Id. at 68, 231 N.W. at 511.
30	
      In re Fanton, supra note 22.
                                     - 679 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               MEYER v. FRAKES
                               Cite as 294 Neb. 668

r­elevant sentencing statute is erroneous but not void; there-
 fore, it could not be collaterally attacked or set aside. In In
 re Fanton, we denied the petitioner’s claim for habeas relief
 based on the fact that the sentence imposed was greater than
 the maximum allowed by law. We reasoned in In re Fanton
 that such a sentence was merely erroneous, and not void. We
 said in Hickman that the same was true for the converse situ-
 ation where the court imposed a shorter term than that pre-
 scribed by law.
    Although decided in 1930, Hickman remains the law in
 Nebraska. The sentencing court, we explained, had the con-
 stitutional power to accept the defendant’s plea and impose a
 sentence within the terms of the sentencing statute, and “[t]hat
 power was exercised to the extent of a sentence of three to five
 years. It was valid as far as it went, but was erroneous in fail-
 ing to impose the minimum penalty of 20 years.”31 We found
 the defendant, who had fully served the erroneously lenient
 sentence, was entitled to his liberty.32
    Hickman is consistent with Hulbert v. Fenton,33 wherein
 we denied habeas relief for a defendant who claimed that his
 indeterminate sentence was void, because the statute allowed
 an indeterminate sentence only if the defendant had no history
 of confinement to the penitentiary and the sentencing judge
 had indicated from the bench that he knew the defendant had
 previously been confined to the penitentiary. The defendant
 was still serving this sentence but hoped that if that sentence
 were declared void, it would be determined that he was ille-
 gally detained.
    We explained:
       Habeas corpus is a collateral, and not a direct, proceed-
       ing, when regarded as a means of attack upon the judg-
       ment, and so long as the judgment is regular upon its

31	
      Hickman v. Fenton, supra note 20, 120 Neb. at 70, 231 N.W. at 512.
32	
      See Hickman v. Fenton, supra note 20.
33	
      Hulbert v. Fenton, supra note 26.
                                      - 680 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                                MEYER v. FRAKES
                                Cite as 294 Neb. 668

      face and was given in an action of which the court had
      jurisdiction, no extrinsic evidence is admissible [in a
      habeas corpus proceeding] to show its invalidity.34
It was improper to consider in the habeas action what the judge
said about the defendant’s prior incarceration because the
“sentence was the final judgment and record of the court.”35
Furthermore, we stated that the allegation that the indeter-
minate nature of the sentence was not authorized by statute
concerned mere errors and irregularities rather than a sentence
that was void.36
   We recognize that under the more broadly worded federal
habeas statutes, a petitioner may challenge his or her confine-
ment as being outside the maximum sentence allowed by the
law and that some other courts consider sentences greater than
that prescribed by law to be void ab initio.37 But even if we
were to reevaluate our concept of voidness as concerns sen-
tences outside the limits authorized by statute or we were to
expand our narrow limitation on collateral attacks under our
habeas statute,38 failing to grant habeas relief in this case would
run afoul of principles of double jeopardy and the fundamental
scope of Nebraska’s habeas relief as a means of redress for the
unlawfully detained.
   The appellants cite to no authority by which the State is
permitted to use the habeas statute as a sword against the
petitioner imprisoned on a void sentence to gain resentencing
and correct an error on a fully served sentence that the peti-
tioner is not challenging and that the State failed to challenge
in a direct appeal as excessively lenient.39 Habeas corpus is a

34	
      Id. at 823, 215 N.W. at 106.
35	
      Id. at 822, 215 N.W. at 106.
36	
      See Hulbert v. Fenton, supra note 26.
37	
      See 39 Am. Jur. 2d Habeas Corpus § 60 (2008). See, also, State v. Beasley,
      14 Ohio St. 3d 74, 471 N.E.2d 774 (1984) (superseded by statute as stated
      in State v. Singleton, 124 Ohio St. 3d 173, 920 N.E.2d 958 (2009)).
38	
      See § 29-2801.
39	
      See, e.g., State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
                                     - 681 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                               MEYER v. FRAKES
                               Cite as 294 Neb. 668

special civil proceeding providing a summary remedy to per-
sons illegally detained.40 A writ of habeas corpus is a remedy
which is constitutionally available in a proceeding to challenge
and test the legality of a person’s detention, imprisonment, or
custodial deprivation of liberty.41 A writ is available only when
the release of the petitioner from the deprivation of liberty
being attacked will follow as a result of a decision in the peti-
tioner’s favor.42
   Contrary to these principles, the appellants wish for greater
punishment to follow from the writ.
   [8] The appellants indeed fail to cite to any authority sup-
porting its ability to collaterally attack in any proceeding a
facially valid sentence that has been fully served. A “primary
purpose” of the Double Jeopardy Clause is “to preserve the
finality of judgments.”43 Where a defendant has a legitimate
expectation of finality, then an increase in his or her sen-
tence in a second proceeding violates the prohibition of the
Double Jeopardy Clause against multiple punishments for the
same offense.44
   [9] “[H]istory demonstrates that the common law never
ascribed such finality to a sentence as would prevent a legis-
lative body from authorizing its appeal by the prosecution.”45
The defendant’s expectation of finality includes knowledge
of the State’s ability to appeal.46 But a defendant may acquire
a legitimate expectation of finality in an erroneous sen-
tence if the sentence has been substantially or fully served,

40	
      Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007).
41	
      Id.
42	
      Id.
43	
      Crist v. Bretz, 437 U.S. 28, 33, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978).
44	
      See, Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S. Ct. 353, 88 L. Ed.
      2d 183 (1985); United States v. DiFrancesco, 449 U.S. 117, 101 S. Ct.
      426, 66 L. Ed. 2d 328 (1980).
45	
      United States v. DiFrancesco, supra note 44, 449 U.S. at 134.
46	
      Com. v. Postell, 693 A.2d 612 (Pa. Super. 1997).
                                      - 682 -
                Nebraska Supreme Court A dvance Sheets
                        294 Nebraska R eports
                                MEYER v. FRAKES
                                Cite as 294 Neb. 668

unless the defendant was on notice that the sentence might
be modified.47
   Here, even if Meyer should be charged with knowledge that
his unenhanced burglary sentence was erroneous and could
have been corrected on a direct appeal by the State, the prison
sentence of 2 to 4 years facially complied with the statutory
confines for a conviction of burglary. And Meyer had no rea-
son to expect, in light of Nebraska law, that the State could
collaterally attack his fully served sentence after the time for
direct appeal had passed—let alone on the ground that his con-
viction for burglary somehow included a judgment of being a
habitual criminal when the sentence for that separately charged
and nonexistent crime is void. There is no historical basis in
Nebraska for the State to collaterally attack the legality of a
fully served sentence, and certainly not through what is effec-
tively a counterclaim in a habeas action, asserting that the oth-
erwise facially lawful sentence should have been enhanced by
virtue of a separate, void sentence.
   Suffice it to say that we are unpersuaded in this case to
depart from precedent clearly holding that a sentence under
the mandatory minimum is not void and that, as such, it can-
not be collaterally attacked in a habeas action. The sentencing
court had jurisdiction over Meyer and over the crime of bur-
glary. This is in contrast to its exercise of power in sentencing
Meyer for being a habitual criminal. There was no jurisdiction
over the offense of being a habitual criminal, because no such
offense exists. Thus, whereas the sentence for being a habitual
criminal is void, the sentence for burglary is not.
   The district court’s reliance on Kuwitzky was not mis­
guided.48 While the likely result—had there been a direct
appeal—would have been a remand to the district court for a
proper sentencing in case No. CR11-29, neither party filed a

47	
      State v. Hardesty, 129 Wash. 2d 303, 915 P.2d 1080 (1996). See, also, e.g.,
      Arthur W. Campbell, Law of Sentencing § 8:15 (3d ed. 2004).
48	
      See Kuwitzky v. O’Grady, supra note 4.
                             - 683 -
          Nebraska Supreme Court A dvance Sheets
                  294 Nebraska R eports
                       MEYER v. FRAKES
                       Cite as 294 Neb. 668

direct appeal. The State waited until Meyer had fully served
his burglary sentence to raise for the first time the lack of
enhancement in the burglary sentence. The appellants attempt
to use the habeas statute—a tool for granting relief to those
who are unlawfully detained—as a means of forcing resen-
tencing of a fully served and facially valid sentence in order
to obtain a greater period of incarceration against the habeas
petitioner. We find no support for such procedure.
   It is conceded by the appellants that if the sentence for
being a habitual criminal in case No. CR11-29 is void and its
challenges to the burglary sentence have no merit, then Meyer
became eligible for parole on August 19, 2013, and reached
his discharge date on August 19, 2015. Because the State can-
not attack the legality of the burglary sentence in the hope
that Meyer will be resentenced to a longer term, Meyer has
proved that he is a person imprisoned without legal authority.
We conclude that Meyer, having served the sentences law-
fully imposed and which cannot now be collaterally attacked,
is being unlawfully imprisoned upon a void sentence and is
entitled to be released and discharged forthwith.
                        CONCLUSION
  The granting of the writ of habeas corpus by the district
court is hereby affirmed.
                                               A ffirmed.
  Connolly, J., not participating.
