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07/26/2019 08:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                 STATE v. BARNES
                                                 Cite as 303 Neb. 167




                                        State of Nebraska, appellee, v.
                                        R ichard C. Barnes, appellant.
                                                   ___ 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 per-
                    mitting collateral attack upon a criminal judgment under other circum-
                    stances, 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 col-
                    laterally 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.
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             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, Stacy, Funke,
Papik, and Freudenberg, JJ.
    Freudenberg, J.
                     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 post-
conviction 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 A dvance Sheets
                      303 Nebraska R eports
                            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 inde-
pendent 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 appel-
lant 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 A dvance Sheets
                       303 Nebraska R eports
                              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 enforce-
ment, the attack is a collateral attack.6 Absent an explicit statu-
tory 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 author-
ity 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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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        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 dis-
trict court did not err in denying Barnes’ motion.
                       CONCLUSION
   For the foregoing reasons, we affirm the order of the dis-
trict court.
                                                  A ffirmed.
