State v. Anderson

22 years, and he has used methamphetamines on and off for the
past 15 years. Borges has an extensive criminal history, includ-
ing at least 30 convictions, 12 of which were felony arrests.
Borges has had 11 alcohol-related arrests and 7 drug-related
arrests. He has been sentenced to jail time 16 times, to prison
on 4 separate occasions, and to probation 6 times. Notably,
Borges has had his probation revoked on three occasions.
Borges tested very high on the alcohol, drug, violence, and
antisocial scales in his presentence investigation report. Based
upon the impracticality of administering the SSAS evaluation
in Cheyenne County, a county that does not currently offer the
program, and Borges’ criminal history, we find that the district
court did not abuse its discretion in sentencing Borges to 15 to
20 years’ imprisonment. Therefore, Borges’ second assignment
of error also lacks merit.
A ffirmed.
StAte of NebrASkA, AppellANt, v.
dAvid l. ANderSoN, Appellee .
779 N.W.2d 623
Filed March 2, 2010. 	No. A-09-870.
1. Sentences: Appeal and Error. When the State appeals and claims that a sentence
imposed on a defendant is excessively lenient, the standard of review is whether
the sentencing court abused its discretion in the sentence imposed.
2. Sentences. Whether a defendant is entitled to credit for time served is a question
of law.
3. Statutes. Statutory language is to be given its plain and ordinary meaning.
4. ____. It is not within the province of the courts to read a meaning into a statute
that is not there or to read anything direct and plain out of a statute.
5. Sentences: Words and Phrases. The phrase “in custody” under Neb. Rev. Stat.
§ 83-1,106 (Reissue 2008) means judicially imposed physical confinement in a
governmental facility authorized for detention, control, or supervision of a defend-
ant before, during, or after a trial on a criminal charge.
Appeal from the District Court for York County: A lAN G.
G leSS, Judge. Reversed and remanded with directions.
Timothy S. Sieh, York County Attorney, for appellant.
No appearance for appellee.
STATe v. ANDeRSoN 	329
Cite as 18 Neb. App. 329
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

SieverS, CArlSoN, and moore, Judges.
moore , Judge.
INTRoDUCTIoN
The appellee, David L. Anderson, was convicted of driving
under the influence, third offense, with a blood alcohol concen-
tration of greater than .15 of a gram per 100 milliliters of his
blood. Anderson was placed on probation and sentenced to serve
60 days in jail, with credit given for time previously served in
jail and in a residential substance abuse treatment program.
The State has appealed the sentence imposed upon Anderson,
asserting that due to an error in determining the credit for time
served, the sentence is excessively lenient. Because we find that
Anderson was not entitled to credit against his jail sentence for
time spent in a residential treatment facility, we reverse, and
remand the cause with directions to vacate the credit given for
the time spent in the treatment facility.
BACKGRoUND
on May 18, 2009, Anderson entered a plea of no contest
to the charge of “Driving Under the Influence, Third offense,
.15,” a Class IIIA felony. In exchange for the plea, the State
dismissed the additional charges of failure to stop and furnish
information, possession of marijuana less than 1 ounce, and
possession of drug paraphernalia. The district court accepted
the plea and found this to be a third offense. The record shows
that Anderson had been accepted into a residential substance
abuse treatment program on March 18. At the sentencing hear-
ing held on August 4, the district court ordered that Anderson
be sentenced to community-based intervention (probation) for
a period of 5 years and, among other conditions, ordered that
Anderson serve 60 days in the county jail, with credit for 3
days already served in jail and 57 days already served in resi-
dential treatment.
The State filed this appeal pursuant to Neb. Rev. Stat.
§ 29-2320 (Supp. 2009) after obtaining consent from the
Attorney General as required by Neb. Rev. Stat. § 29-2321(1)(b)
(Supp. 2009).
330 	18 NeBRASKA AppeLLATe RepoRTS

ASSIGNMeNT oF eRRoR
The State argues that the district court erred in granting
Anderson credit against his jail sentence for time spent in a
residential substance abuse treatment program.
STANDARD oF ReVIeW
[1] When the State appeals and claims that a sentence
imposed on a defendant is excessively lenient, the standard of
review is whether the sentencing court abused its discretion
in the sentence imposed. State v. Alford, 278 Neb. 818, 774
N.W.2d 394 (2009).
[2] Whether a defendant is entitled to credit for time served
is a question of law. Id.
ANALYSIS
The State argues that the district court erroneously granted
Anderson credit against his jail sentence for time spent in a
residential substance abuse treatment facility. Because of this
error, the State asserts that Anderson’s jail sentence falls below
the minimum statutory limit for his offense and, as such, is
excessively lenient.
Neb. Rev. Stat. § 60-6,197.03(6) (Supp. 2007) requires that
a person convicted of driving under the influence of alcohol,
who has been twice previously convicted and who had a blood
alcohol concentration of .15 of a gram per 100 milliliters of his
blood or more, shall be sentenced to serve 60 days in a city or
county jail as a condition of probation.
[3,4] Neb. Rev. Stat. § 47-503(1) (Reissue 2004) provides
that credit against a jail term shall be given to any person sen-
tenced to a city or county jail for time spent in jail as a result
of the criminal charge for which the jail term is imposed or as
a result of conduct upon which such charge is based. Statutory
language is to be given its plain and ordinary meaning. State v.
Alford, supra. It is not within the province of the courts to read
a meaning into a statute that is not there or to read anything
direct and plain out of a statute. Id. Clearly, time spent in a
residential treatment facility is not time spent “in jail” under
the plain language of § 47-503(1).
STATe v. ANDeRSoN 	331
Cite as 18 Neb. App. 329

[5] The State refers us to Neb. Rev. Stat. § 83-1,106 (Reissue
2008), which is similar to § 47-503 but addresses persons
sentenced to prison as opposed to jail. Section 83-1,106 pro-
vides for credit for time spent “in custody” as a result of the
criminal charge for which a prison sentence is imposed. While
§ 83-1,106 is not applicable in this case and contains an argu-
ably broader credit for time spent “in custody” as opposed
to “in jail,” the phrase found in § 47-503, we find the cases
defining “in custody” to be further support for our decision in
the instant case. The Nebraska Supreme Court held in State
v. Jordan, 240 Neb. 919, 923, 485 N.W.2d 198, 201 (1992),
that the phrase “in custody” under § 83-1,106 means “judi-
cially 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.” See, also,
Tyler v. Nebraska Dept. of Corr. Servs., 13 Neb. App. 795,
701 N.W.2d 847 (2005). In Jordan, supra, the Supreme Court
concluded that time spent under electronic monitoring con-
ducted at the defendant’s residence did not qualify as time “in
custody” for the purpose of sentencing credit as required under
§ 83-1,106(1). We note that in Jordan, the Supreme Court rec-
ognized conflicting cases from other jurisdictions that allowed
credit for time spent in residential alcohol treatment facilities
where restrictions on liberty were equivalent to incarceration.
We also note that under different circumstances, the Nebraska
Supreme Court has held that a defendant is not entitled to have
credit for time served in a voluntary alcohol treatment program
prior to conviction. See State v. Hutton, 218 Neb. 420, 355
N.W.2d 518 (1984).
We hold that under § 47-503(1), a defendant is not entitled
to credit against a jail sentence for time spent in a residential
substance abuse treatment facility. Because the district court
erred in granting Anderson credit for time spent in treat-
ment, the jail sentence effectively fell below the statutorily
imposed requirement of 60 days for the offense for which
Anderson was convicted. As such, the district court’s errone-
ous credit resulted in an excessively lenient sentence. See
State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009) (sen-
tence that falls below statutorily prescribed sentencing limits
332 	18 NeBRASKA AppeLLATe RepoRTS

is example of leniency that can be appealed by State pursuant
to § 29-2320).
Accordingly, pursuant to Neb. Rev. Stat. § 29-2322 (Reissue
2008), we remand the cause with directions to vacate the
credit for time spent in the residential substance abuse treat-
ment facility.
CoNCLUSIoN
The district court erred in giving Anderson credit against
his jail sentence for time spent in a residential substance abuse
treatment facility. Its judgment is reversed, and the cause is
remanded with directions to vacate this credit.
reverSed ANd remANded with direCtioNS.
STATe v. ANDeRSoN 	333
Cite as 18 Neb. App. 329