State v. Clark

stemming from the pollutants themselves without any human
causal element. Viewing the phrase in context, it clearly con-
veys that the umbrella policy was not meant to provide cover-
age for any additional pollution occurrences excluded under the
general liability policy. The umbrella policy, like the general
liability policy, excluded coverage for liability occasioned by
the release of pollutants—regardless of what level of human
culpability was involved.
VI. CONCLUSION
We affirm the judgment of the district court in favor
of Harleysville.
A ffirmed.
G errArd, J., participating on briefs.
STaTe v.CL ark 	557
Cite as 278 Neb. 557
StAte of NebrASkA, Appellee , v.
keNNeth W. C lArk , AppellANt.
772 N.W.2d 559
Filed September 18, 2009. 	No. S-08-735.
1. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law
for the court, which requires an appellate court to reach a conclusion independent
of the lower court’s decision.
2. Sentences: Time.a 	sentence validly imposed takes effect from the time it
is pronounced.
3. Sentences. When a valid sentence has been put into execution, the trial court
cannot modify, amend, or revise it in any way, either during or after the term or
session of court at which the sentence was imposed.
4. Sentences: Judges: Records. The circumstances under which a judge may cor-
rect an inadvertent mispronouncement of a sentence are limited to those instances
in which it is clear that the defendant has not yet left the courtroom; it is obvious
that the judge, in correcting his or her language, did not change in any manner
the sentence originally intended; and no written notation of the inadvertently
mispronounced sentence was made in the records of the court.
5. Sentences. Pursuant to Neb.r ev. Stat. § 47-503 (reissue 2004), a sentencing
court is required to separately determine, state, and grant credit for time served.
6. ____. Credit for time served is not incorporated into a sentence such that the
amount of credit given cannot be modified, amended, or revised after the sentence
is put into execution.
7. Sentences: Records. The credit for time served to which a defendant is entitled
is an absolute and objective number that is established by the record.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

8. ____: ____. The exact credit for time served to which a defendant is entitled is
objective and not discretionary. The court has no discretion to grant the defendant
more or less credit than is established by the record.
9. ____: ____. When a court grants a defendant more or less credit for time served
than the defendant actually served, that portion of the pronouncement of sentence
is erroneous and may be corrected to reflect the accurate amount of credit as veri-
fied objectively by the record.
Petition for further review from the Court ofa ppeals, irWiN,
SieverS, and CArlSoN, Judges, on appeal thereto from the
District Court for Lancaster County, Jeffre C heuvroNt, Judge.
Judgment of Court ofa ppeals affirmed.
Dennisr .k eefe, Lancaster County Public Defender, Webb
e. Bancroft, and Yohance L. Christie, Senior Certified Law
Student, for appellant.
Jon Bruning,a ttorney General, and Stacy M. Foust for
appellee.
heAviCAN, 	C.J., 	WriGht, 	C oNNolly, 	G errArd, 	StephAN,
mCC ormACk, and miller-lermAN, JJ.
mCC ormACk, J.
NaTUre OF CaSe
The issue in this case is whether the pronouncement of a
sentence of imprisonment giving an offender more credit for
time served than he actually served can be corrected by the
sentencing court to give the offender the appropriate amount
of credit. On May 19, 2008, the district court attempted to
sentencek enneth W. Clark to 360 days in jail but incorrectly
credited Clark with 361 days’ time served. On June 12, the
court entered a written sentencing order granting Clark credit
for 61 days’ time served, the amount of time actually served
and reflected by the record. Clark appealed, and the Nebraska
Court ofa ppeals affirmed. We granted Clark’s petition for fur-
ther review. For different reasons, we affirm.
BaCkGrOUND
Clark was initially charged with third degree sexual assault
of a child. Clark pleaded not guilty. The State then filed an
amended information charging Clark with third degree sexual
558 	278N eBraSka rePOrTS

assault, a Class I misdemeanor. Clark changed his plea to no
contest, and the court found him guilty.
On May 19, 2008, the court held a sentencing hearing.
at the sentencing hearing, Clark’s counsel made comments
regarding Clark’s impending sentence, including asking the
court to consider the fact that Clark had served 61 days in
jail. The court then sentenced Clark to 360 days in jail, but
mistakenly gave him credit for 361 days of time served.
Specifically, the court stated to Clark, “So it will be the order
of the Court [that] you be sentenced to a period of 360 days in
the Lancaster County Jail, that you pay the costs of prosecu-
tion. You will be given credit for 361 days already served.”
Neither party objected to or raised any issue regarding the
court’s pronouncement. Court was immediately adjourned, and
Clark left the courtroom. The court made a computer entry in
the courtroom, which stated, “Order of sentence in file. (360
days jail) (GILTY CT),” but no formal sentencing order was
prepared and signed by the judge, and no commitment order
was issued. Later, after Clark left the courtroom, it came to
the court’s attention that Clark was given more credit for time
served than he actually had served.
On May 20, 2008, the court issued a written order requesting
that Clark appear on May 21, 2008. The order stated,
Because of certain irregularities in the terms of the
sentence, it is ordered that [Clark] appear in this court in
[sic] May 21, 2008 at 9:30 a.m.
Because no written order of sentence was prepared and
signed by the court, the journal entry dated May 19, 2008
stating that an order of sentence is in the file is incorrect.
The matter was continued until June 12 to give counsel an
opportunity to submit legal authority to the court on whether
the court could resentence Clark.
at the June 12, 2008, hearing, the court again pronounced
a sentence against Clark. The court stated, “So it will be the
order of the Court that . . . Clark, unfortunately for him or
maybe it will turn out okay, will be sentenced to the 360 days
in the Lancaster County Jail. He’ll be given credit for the 61
days already served.”a fter the hearing, the court entered a
written order, dated June 12, 2008, sentencing Clark to a term
STaTe v.CL ark 	559
Cite as 278 Neb. 557

of 360 days’ imprisonment and granting him 61 days’ credit for
time served.
In its written order, the court posed the issue in this case
as whether the credit for time served is part of the “sentence”
imposed by the court. The court stated:
Often, the formal order of sentence refers merely to “credit
for time served” without specifying the exact number of
days. It is obvious in this case that “361 days credit” was
a mistake. The presentence investigation showed 61 days
credit due and counsel for Clark referred to 61 days in
his comments during the proceeding. Further, no writ-
ten order of sentence or commitment was ever issued by
the court. . . .
Therefore, this court concludes that because [there is]
no written notation or order concerning the credit for time
served, there is no “sentence.” Further, this court finds
that the fixing of credit for time served is not a part of
the “sentence imposed” and could be corrected even if a
written order of sentence had been entered showing the
361 days credit.
Clark appealed. The district court delayed execution of the sen-
tence pending this appeal.
On appeal to the Court ofa ppeals, Clark assigned that the
district court erred in modifying his sentence to reflect the
actual number of days served in jail and that the district court’s
modified sentence was excessive and an abuse of discretion.
The Court ofa ppeals held that the district court had author-
ity to modify and revise Clark’s sentence by removing the
erroneous portion, making the proper finding of previous time
served, and giving Clark credit for such time served by making
the appropriate correction.1
aSSIGNMeNT OFerr Or
Clark argues that the Court ofa ppeals erred in holding that
the district court had jurisdiction to modify a lawfully imposed
and final sentence pronounced by the court.
1 State v. Clark, 17 Neb.a pp. 361, 762 N.W.2d 64 (2009).
560 	278N eBraSka rePOrTS

STaNDarD OFre VIeW
[1] Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclusion
independent of the lower court’s decision.2
aNaLYSIS
Clark argues that the sentence pronounced by the district
court on May 19, 2008, was a valid sentence because it was
within the statutory limits and that thus, the district court erred
when it “corrected” the sentence on June 12. The Court of
appeals concluded that the district court had the authority to
correct its sentence. For slightly different reasons, we agree
with that conclusion. We find that the sentencing pronounce-
ment on May 19 was partially erroneous and that the district
court had authority to correct the erroneous portion.
[2-4] We have said that a sentence validly imposed takes
effect from the time it is pronounced.3a nd when a valid
sentence has been put into execution, the trial court can-
not modify, amend, or revise it in any way, either during or
after the term or session of court at which the sentence was
imposed.4 But it is possible, in limited circumstances, to cor-
rect an inadvertent mispronouncement of a valid sentence.5
These circumstances are limited to those instances in which it
is clear that the defendant has not yet left the courtroom; it is
obvious that the judge, in correcting his or her language, did
not change in any manner the sentence originally intended; and
no written notation of the inadvertently mispronounced sen-
tence was made in the records of the court.6 This rule is meant
to prevent this court from attempting to “‘read the mind of the
sentencing judge’” in cases where an entirely valid sentence
2 Gilbert & Martha Hitchcock Found. v. Kountze, 275 Neb. 978, 751 N.W.2d
129 (2008).
3 State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000).
4 State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006); State v. Schnabel,
supra note 3.
5 See, State v. Schnabel, supra note 3; State v. Foster, 239 Neb. 598, 476
N.W.2d 923 (1991).
6 Id.
STaTe v.CL ark 	561
Cite as 278 Neb. 557

has been pronounced and later amended due to the judge’s
proclaimed inadvertence.7
[5,6] We have explained that pursuant to Neb.r ev. Stat.
§ 47-503 (reissue 2004), a sentencing court is required to
separately determine, state, and grant credit for time served.8
The statute is intended to ensure that defendants receive all the
credit against their sentence of imprisonment at the time of sen-
tencing to which they are entitled—no less, and no more.9 We
explained in State v. Torres10 that pursuant to § 47-503, credit
for time served shall be set forth as part of the sentence at the
time the sentence is imposed.11 But we have not previously
addressed whether an error in announcing the credit for time
served is subject to correction after the sentence is imposed.
We conclude that the statement that credit for time served
should be set forth as “part of the sentence” simply refers to
credit being given in the sentencing order or at the sentencing
hearing, and does not incorporate credit for time served into
the sentence such that, under State v. Schnabel,12 the amount of
credit given cannot be modified, amended, or revised after the
sentence is put into execution.
[7-9]a nd the credit for time served to which a defendant is
entitled is an absolute and objective number that is established
by the record. Therefore, the exact credit for time served to
which a defendant is entitled is objective and not discretionary.
The court has no discretion to grant the defendant more or less
credit than is established by the record.13 Thus, when a court
grants a defendant more or less credit for time served than the
defendant actually served, that portion of the pronouncement of
7 State v. Foster, supra note 5, 239 Neb. at 601, 476 N.W.2d at 925.
8 See, State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999); State v.
Esquivel, 244 Neb. 308, 505 N.W.2d 736 (1993).
9 See, State v. Gass, 269 Neb. 834, 697 N.W.2d 245 (2005); State v. Banes,
268 Neb. 805, 688 N.W.2d 594 (2004).
10 State v. Torres, supra note 8.
11 See, also, State v. Esquivel, supra note 8.
12 State v. Schnabel, supra note 3.
13 See § 47-503.
562 	278N eBraSka rePOrTS

sentence is erroneous and may be corrected to reflect the accu-
rate amount of credit as verified objectively by the record.
Under the facts presented here, we do not have to “read the
mind of the sentencing judge,”14 because the judge was without
discretion to award Clark more credit for time served than he
actually served. The only available credit the court was autho-
rized to grant Clark was 61 days, which was reflected by the
record.15 To the extent that the court gave Clark more credit for
time served than he actually served, that portion of the May
19, 2008, sentencing pronouncement was unauthorized under
law and erroneous.16a ccordingly, we conclude that the district
court had authority to correct the erroneous portion of its sen-
tencing pronouncement by giving Clark the accurate amount of
credit for time served as reflected by the record.
We note that our holding in this case is limited to those
instances in which a sentencing court has made an error in
pronouncing sentence that can be objectively corrected, and is
not intended to afford the sentencing court the opportunity to
reconsider its original pronounced sentence.17
CONCLUSION
In sum, we conclude that to the extent the May 19, 2008,
sentencing pronouncement gave Clark more credit for time
served than reflected by the record, it was erroneous. The dis-
trict court thus had authority to correct the error in its June 12
written sentencing order to reflect the correct number of days
of credit for time served, and the Court ofa ppeals did not err
in affirming the order of the district court.
A ffirmed.
14 See State v. Foster, supra note 5.
15 See State v. Banes, supra note 9.
16 See State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).
17 See State v. Schnabel, supra note 3.
STaTe v.CL ark 	563
Cite as 278 Neb. 557