State v. Clark

with the authority to strike the illegible complaint and hold
the application to proceed in forma pauperis in abeyance until
the applicant provides the court with a legible complaint. Of
course, if an applicant refuses or fails to timely comply, the
application would then be subject to dismissal. See Neb. Rev.
Stat. § 25-601 (Reissue 2008).
CONCLUSION
We conclude that the district court erred in denying Tyler’s
application to proceed in forma pauperis without affording
Tyler an opportunity to file a legible complaint. We therefore
reverse, and remand for further proceedings consistent with
this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
state of nebRaska , appellee , v.
kenneth W. claRk , appellant.
762 N.W.2d 64
Filed February 17, 2009. 	No. A-08-735.
1. Judgments: Appeal and Error. To the extent issues of law are presented, an
appellate court has an obligation to reach independent conclusions irrespective of
the determination made by the court below.
2. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
3. Sentences: Words and Phrases. An invalid sentence is one that is not authorized
by the permissible statutory penalty for the crime and is beyond the sentencing
court’s power to pronounce.
4. Sentences. Credit to any person sentenced to a city or county jail who is eligible
for credit shall be set forth as part of the sentence at the time such sentence
is imposed.
5. ____. If the original sentence is invalid, it is of no effect and the court may then
impose any sentence which could have been validly imposed in the first place.
6. ____. A sentencing judge is required to separately determine, state, and grant the
amount of credit on the defendant’s sentence to which the defendant is entitled.
7. ____. The giving of credit for time served under Neb. Rev. Stat. § 47-503(2)
(Reissue 2004) is part of the sentence.
8. ____. A sentence validly imposed takes effect from the time it is pronounced, and
when a valid sentence has been put into execution, the trial court cannot modify,
STATe v. CLARk 	361
Cite as 17 Neb. App. 361
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

amend, or revise it in any way, either during or after the term or session of court
at which the sentence was imposed.
9. 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.
10. Sentences: Courts. Where a portion of a sentence is valid and a portion is invalid
or erroneous, the court has authority to modify or revise the sentence by remov-
ing the invalid or erroneous portion of the sentence if the remaining portion of the
sentence constitutes a complete valid sentence.
Appeal from the District Court for Lancaster County: J effRe
cheuvRont, Judge. Affirmed.
Dennis R. keefe, Lancaster County Public Defender, Webb
e. Bancroft, and Yohance L. Christie, Senior Certified Law
Student, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
iRWin, sieveRs, and caRlson, Judges.
sieveRs, Judge.
This case presents the question of whether a sentence of
imprisonment pronounced by the district court that gives the
offender more credit for time served than he actually served
before sentencing can be thereafter corrected by the district
court to reflect the correct number of days to be credited
against his jail term. kenneth W. Clark appeals the corrected
sentence, as well as asserting that the period of incarceration
ordered is excessive. Because the sentence results from a no
contest plea, under Neb. Ct. R. App. P. § 2-111(e)(5)(a), we do
not hear oral argument on this case.
FACTUAL BACkGROUND
Pursuant to an amended information, Clark was charged with
third degree sexual assault, a Class I misdemeanor, to which he
pled no contest. The victim, C.C., was spending the night with
Clark’s sister and her children. C.C. awoke early in the morn-
ing of August 9, 2006, to find Clark in bed with her and with
362 	17 NeBRASkA APPeLLATe RePORTS

his hands under her shirt and bra, fondling her breasts. C.C.
attempted to push him away, but he unbuttoned her pants and
fondled her vagina. Clark’s sister entered the room as C.C. was
pushing him away, and C.C. immediately told Clark’s sister
what had occurred. C.C. was 14 at the time, and she did not
consent to the sexual contact. The court accepted Clark’s plea
and found him guilty.
SeNTeNCING
The sentencing hearing was held May 19, 2008. At that sen-
tencing hearing, counsel for the State and for Clark made com-
ments. In the defense counsel’s comments, he noted that Clark
“stand[s] for sentencing today [having] served 61 days in jail.”
Counsel for the State made no mention before sentencing of
time served. The trial court stated on the record: “So it will be
the order of the Court, Mr. Clark, you be sentenced to a period
of 360 days in the Lancaster County Jail, that you pay the costs
of prosecution. You will be given credit for 361 days already
served.” Clark left the courtroom a “free” man.
Two days later, on May 21, 2008, the trial judge arranged
to have counsel and Clark before him again and stated that
although the record reflected that Clark had served 61 days,
“the Court inadvertently gave him credit for 361 days.” The
trial court continued the matter until June 12 to give coun-
sel time to submit authority on the issue of correction of
the sentence.
On June 12, 2008, with Clark and counsel present, the court
received the presentence investigation offered in evidence by
the State over Clark’s objection, which is not assigned as
error. The presentence investigation clearly shows 61 days of
time served before sentencing. The court then noted that no
written order of sentence or commitment ever issued and that
the fixing of credit for time served is not part of the sentence
imposed and can be corrected. Thus, the court sentenced Clark
to 360 days in the Lancaster County jail, with credit for 61
days already served. The court delayed execution of the sen-
tence pending the appeal that Clark indicated he intended to
file. The trial court rendered a written order memorializing
such sentence on June 12, which order was file stamped by
STATe v. CLARk 	363
Cite as 17 Neb. App. 361

the clerk on that date. Clark filed a timely notice of appeal on
June 30.
ASSIGNMeNTS OF eRROR
Clark asserts that the order of June 12, 2008, resentencing
and committing Clark, was done without jurisdiction to modify
a lawfully imposed and final sentence pronounced by the court
on May 19 and that the sentence imposed by the court was
excessive and an abuse of discretion.
STANDARD OF ReVIeW
[1] To the extent issues of law are presented, an appel-
late court has an obligation to reach independent conclusions
irrespective of the determinations made by the court below.
See Union Ins. Co. v. Land and Sky, Inc., 253 Neb. 184, 568
N.W.2d 908 (1997).
[2] A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court. State v. Kinkennon, 275 Neb. 570, 747 N.W.2d
437 (2008).
ANALYSIS
Can Trial Court Correct Mistaken Award
of Credit for Time Served?
[3] Clark’s core argument is that the sentence pronounced
on May 19, 2008, was a valid sentence; it cannot be modified,
amended, or revised in any manner; any attempt to do so is
ineffective; and therefore the original sentence remains in full
force, citing State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699
(2000). A fundamental predicate to this argument is that an
invalid sentence is one that is not authorized by the permissible
statutory penalty for the crime and is beyond the sentencing
court’s power to pronounce and, therefore, can be corrected.
See State v. Wilcox, 239 Neb. 882, 479 N.W.2d 134 (1992).
Accordingly, Clark argues that while the amount of credit for
time served stated on May 19 may have been incorrect, it did
not constitute an invalid sentence, and that therefore, it cannot
be later modified.
[4,5] While the State acknowledges the above holding of
Schnabel, supra, it contends that Clark’s original sentence was
364 	17 NeBRASkA APPeLLATe RePORTS

invalid because Neb. Rev. Stat. § 47-503(2) (Reissue 2004)
provides that “[c]redit to any person sentenced to a city or
county jail who is eligible for credit . . . shall be set forth as
part of the sentence at the time such sentence is imposed.” As
a result, the State argues that because Clark had served only
61 days, the credit of 361 days invalidates the sentence and the
court may reimpose any sentence that could have been validly
imposed in the first place, citing State v. Blankenship, 195 Neb.
329, 331, 237 N.W.2d 868, 869 (1976) (“[t]he general rule is
that if the original sentence is invalid, it is of no effect and the
court may then impose any sentence which could have been
validly imposed in the first place”).
The record is beyond dispute that prior to sentencing, Clark
had been incarcerated for only 61 days, and thus the credit due
him under § 47-503 was 61 days, not 361 days. Therefore, the
question is simply whether the trial court can correct its mis-
take, which depends on whether the flawed original sentence
was invalid, erroneous, or void. A similar factual pattern is
found in State v. Shelby, 194 Neb. 445, 232 N.W.2d 23 (1975),
where the trial court, in addition to a term of years, sentenced
the defendant to the security section of the Lincoln Regional
Center (LRC) for such time as was necessary to be determined
by the director of the LRC, and the court further ordered that
the LRC director would provide such psychiatric, social, and
vocational therapy as was needed. At the time, there was a
statutory provision for presentence evaluation at the LRC, but
no provision for such a term of imprisonment at the LRC as
part of the actual sentence. The trial court realized its mis-
take and recalled counsel and the defendant to appear, as was
done here, and resentenced the defendant to the same period
of incarceration, but without any reference to the LRC. The
Nebraska Supreme Court affirmed the district court’s handling
of the matter, saying:
It is settled law that the District Court has the power to
impose a lawful sentence where the one pronounced was
erroneous or void as being beyond the power of the trial
court to pronounce and where the accused himself has
invoked appellate jurisdiction for the correction of error.
Shelby, 194 Neb. at 447, 232 N.W.2d at 24.
STATe v. CLARk 	365
Cite as 17 Neb. App. 361

We turn to the pertinent statute, § 47-503, which provides in
relevant part:
(1) Credit against a jail term shall be given to any per-
son sentenced 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. . . .
(2) Credit to any person sentenced to a city or county
jail who is eligible for credit pursuant to subsection (1) of
this section shall be set forth as part of the sentence at the
time such sentence is imposed.
(emphasis supplied.)
[6] In State v. Torres, 256 Neb. 380, 381, 590 N.W.2d
184, 185 (1999), the Nebraska Supreme Court applied this
statute in a case where a criminal defendant was sentenced
to 90 days, after which his counsel stated, “‘He was incar-
cerated for 26 days prior to bonding out . . . . We’re hoping
for credit for 26 days.’” The county court said, “‘I took that
into consideration.’” Id. On appeal to the district court, the
district judge indicated that it would have been clearer for the
county judge to state a sentence of 116 days with credit for 26
days served, and the district court affirmed the sentence. On
appeal, the Supreme Court noted its previous cases referenc-
ing Neb. Rev. Stat. § 83-1,106 (Reissue 2008) which hold that
a sentencing judge “is required to separately determine, state,
and grant the amount of credit on the defendant’s sentence to
which the defendant is entitled,” 256 Neb. at 383, 590 N.W.2d
at 185, citing State v. Mantich, 249 Neb. 311, 543 N.W.2d
181 (1996). The court noted that § 83-1,106 contains similar
language to § 47-503, except that the former statute deals
with state correctional facilities, rather than city or county
correctional facilities, as is the case with § 47-503. The court
in Torres, supra, then noted its opinion in State v. Esquivel,
244 Neb. 308, 505 N.W.2d 736 (1993), holding that the
word “shall” in § 83-1,106 required the sentencing court to
separately determine, state, and grant credit for time served.
The Supreme Court reversed the judgment and remanded the
cause in Esquivel, supra, with directions to resentence after
granting credit for time served pursuant to § 83-1,106. The
366 	17 NeBRASkA APPeLLATe RePORTS

Torres court found that its holding in Esquivel extended to
§ 47-503(2) and that because credit for time served “shall be
set forth ‘as part of the sentence at the time such sentence
is imposed,’ . . . the district court sitting as an appellate
court cannot remedy a sentence which was not correctly pro-
nounced in the first instance.” 256 Neb. at 384, 590 N.W.2d
at 186. Thus, in Torres, the Supreme Court remanded to the
district court for that court to remand to the county court to
credit the defendant’s sentence for the time served in jail prior
to sentencing.
[7] Therefore, based on Torres, we find as a matter of law
that in the instant case, the trial judge’s conclusion that the
giving of credit for time served under § 47-503(2) is not part
of the sentence is incorrect. Therefore, the district court had
to determine the amount of time already served, state such,
and give credit against the sentence—and do so as part of the
sentence pronounced. While the trial court did that, the credit
given was obviously erroneous.
[8,9] The Supreme Court has clearly said that a sentence
validly imposed takes effect from the time it is pronounced and
that when a valid sentence has been put into execution, the trial
court cannot modify, amend, or revise it in any way, either dur-
ing or after the term or session of court at which the sentence
was imposed. State v. Schnabel, 260 Neb. 618, 618 N.W.2d
699 (2000); State v. Lotter, 255 Neb. 456, 586 N.W.2d 591
(1998), modified 255 Neb. 889, 587 N.W.2d 673 (1999); State
v. Carlson, 227 Neb. 503, 418 N.W.2d 561 (1988). Schnabel,
supra, also holds that the circumstances under which a judge
may correct 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 nota-
tion of the inadvertently mispronounced sentence was made in
the records of the court. (Citing State v. Foster, 239 Neb. 598,
476 N.W.2d 923 (1991).)
Thus, bearing in mind the holdings of Schnabel, supra, and
State v. Torres, 256 Neb. 380, 590 N.W.2d 184 (1999), the
question for us is whether the trial judge’s original sentence
STATe v. CLARk 	367
Cite as 17 Neb. App. 361

in this case was an “inadvertent mispronouncement of sen-
tence,” which, under Schnabel, cannot be corrected because
Clark had left the courtroom, or whether it is an “invalid
sentence,” which can be corrected, even though Clark had left
the courtroom.
[10] This court has written about the question of when a
sentence is invalid in State v. Wayt, 13 Neb. App. 759, 701
N.W.2d 841 (2005). In Wayt, the defendant was convicted of
a Class IV felony and placed on probation, which he failed.
The district court then sentenced him to a term of 2 to 4 years’
imprisonment. The parties apparently filed a “‘Stipulation and
Consent’” some 3 weeks after the above sentence was pro-
nounced, to correct the minimum term of the indeterminate
sentence because it was greater than that allowed by law. Id. at
760, 701 N.W.2d at 844. As a result, the trial court entered a
“‘Nunc Pro Tunc Journal,’” which was identical in all respects
to the previous sentence, except that the low end of the sen-
tence was changed to not less than 15 months, as required by
the applicable statute, rather than the 2 years previously pro-
nounced. Id. In Wayt, we relied upon McElhaney v. Fenton, 115
Neb. 299, 212 N.W. 612 (1927), and held:
Like the sentence in McElhaney, the 2-year minimum
sentence in this case was erroneous but not void. Where
a portion of a sentence is valid and a portion is invalid
or erroneous, the court has authority to modify or revise
the sentence by removing the invalid or erroneous portion
of the sentence if the remaining portion of the sentence
constitutes a complete valid sentence. State v. McDermott,
200 Neb. 337, 263 N.W.2d 482 (1978). In McDermott, the
Nebraska Supreme Court held that the district court was
correct in determining that the county court should have
modified or revised its original sentence by removing the
erroneous portion. We conclude that under the circum-
stances in the present case, the trial court was empowered
to correct its judgment to enter a valid sentence.
Wayt, 13 Neb. App. at 764, 701 N.W.2d at 846.
In the case before us, Clark was indisputably entitled to only
61 days of credit, but in all other respects, his sentence was
valid for the crime to which he pled. Accordingly, we find that
368 	17 NeBRASkA APPeLLATe RePORTS

the district court had authority to modify and revise the sentence
by removing the erroneous portion thereof, making the proper
finding of previous time served, and giving Clark credit for
such by making the appropriate correction. Just as a criminal
defendant would be entitled to have the court correct an invalid
credit for 61 days of time served when he had actually served
361 days, the State is entitled to have a valid sentence given
to Clark. In other words, the giving of 300 extra days of credit
to Clark makes that portion of the sentence invalid and subject
to correction, because clearly the court is not empowered to
award more credit for time served prior to sentencing than was
actually served. Thus, the court can lawfully make the correc-
tion to reflect that Clark is entitled to credit against his 360-
day sentence for the 61 days served. Accordingly, we find that
the trial court did not err in correcting the sentence and that the
corrected sentence pronounced and entered on June 12, 2008,
is a valid and correct sentence.
Excessive Sentence.
Clark argues that his sentence is excessive because the
trial court wrongfully emphasized the nature and circumstance
of the crime while neglecting the individual characteristics
of Clark. In this regard, Clark cites educational difficulties,
his difficulty in reading and comprehension, his diagnosis of
oppositional defiant disorder, his previous admission to the
LRC for medical treatment, and his depression. On the other
hand, the State points us to the significant benefit to Clark
from a plea agreement that amended his original charge from
a Class IIIA felony, as well as forgoing a number of additional
charges stemming from this incident. The State also directs us
to Clark’s substantial history of criminal behavior, both before
his arrest for the instant offense as well as convictions for carry-
ing a concealed weapon and possession of drug paraphernalia
thereafter, and the fact that when he was sentenced, he was
awaiting trial on charges for third degree domestic assault,
refusing to comply with a police officer’s directive, and operat-
ing a motor vehicle without an operator’s license. In summary,
Clark’s criminal behavior is substantial, the presentence inves-
tigation assessment showed him to be at a high risk to reoffend,
STATe v. CLARk 	369
Cite as 17 Neb. App. 361

and he received an extremely favorable plea bargain. The trial
court’s sentence is not excessive.
CONCLUSION
Clark’s assignments of error are without merit, and therefore
we affirm.
affiRmed.
iRWin, Judge, dissenting.
I dissent from the majority’s conclusion affirming the trial
judge’s procedure in sentencing Clark. That procedure entailed
first sentencing Clark and allowing Clark to leave the court-
room a “free man.” Then the trial judge somehow “arranged”
days later for counsel and Clark to appear in court before
him again. The judge told Clark that he had “inadvertently”
sentenced him before. A month after this, the trial judge
imposed a different sentence resulting in Clark’s being sen-
tenced to incarceration.
The trial court elucidates its procedure by explaining that no
written order of sentence or commitment ever issued and that
the fixing of credit for time served is not part of the sentence
imposed and can be corrected. The majority expounds on this
procedure by characterizing it as an invalid sentence. I disagree
and find that the trial court’s procedure was incorrect and that
this issue should have been presented to an appellate court for
correction, if such correction is warranted.
The trial court’s misstatement concerning the amount of
time previously served is a factual mistake which did not create
an invalid sentence. Additionally, I dissent from the majority’s
decision that the trial court had the authority to modify the
sentence to reflect the actual amount of time previously served.
The sentencing case law does not support the majority’s con-
clusion. As such, even if the sentence was invalid, a conclusion
I do not agree with, the trial court did not have the power to
change the sentence and impose a new one.
Mistake of Fact Versus Mistake of Law—Valid or
Invalid Sentence in Context of Nebraska
Sentencing Jurisprudence.
The first issue presented is whether the trial court’s origi-
nal sentence which mistakenly provided Clark with credit
370 	17 NeBRASkA APPeLLATe RePORTS

for 361 days of previous time served rendered the sentence
invalid. The majority concludes that the sentence was partially
invalid. Specifically, the majority writes, “Clark was indisput-
ably entitled to only 61 days of credit, but in all other respects,
his sentence was valid for the crime to which he pled.” I do
not agree with the characterization of the sentence as “par-
tially invalid.”
The Nebraska Supreme Court has long held that a sentence
is invalid when a sentencing court lacks statutory authority to
impose the sentence. See State v. Wilcox, 239 Neb. 882, 479
N.W.2d 134 (1992). Stated another way, a sentence is invalid
when the sentencing court makes a mistake of law in the impo-
sition of a sentence. The trial court did not make a mistake of
law in sentencing Clark. Rather, the court misstated the amount
of time Clark had previously served. This misstatement is a
mistake of fact, not a mistake of law.
The majority cites to numerous cases where a sentence was
found to be invalid. In each of these cases, the sentencing court
made a mistake in applying the relevant law.
For example, in State v. Shelby, 194 Neb. 445, 447, 232
N.W.2d 23, 24 (1975), the Nebraska Supreme Court found a
sentence to be “unauthorized, not provided for by statute, and
either erroneous or void” when the district court sentenced
the defendant to the security section of the Lincoln Regional
Center for such time as was necessary to be determined by the
director. The Supreme Court held that the district court lacked
the authority to impose such a sentence, because there was no
statutory provision “for treatment or confinement of the defend-
ant in the Lincoln Regional Center under the discretion of the
director.” Id. at 446, 232 N.W.2d at 24.
Most of the cases cited by the majority involve situations
where the trial court imposed a sentence that was not autho-
rized by the permissible statutory penalty for the crime.
In State v. Blankenship, 195 Neb. 329, 237 N.W.2d 868
(1976), a jury found the defendant guilty of second degree
murder. The district court subsequently sentenced the defendant
to “an indeterminate period of not less than 25 years nor more
than 30 years.” Id. at 330, 237 N.W.2d at 869. On appeal, the
Supreme Court held that this sentence was clearly erroneous
STATe v. CLARk 	371
Cite as 17 Neb. App. 361

and invalid because under the currently existing statutes, a trial
court was not authorized to sentence a defendant to an indeter-
minate sentence for a conviction of second degree murder.
In State v. Wilcox, supra, the district court sentenced the
defendant to 6 months’ imprisonment upon his conviction
for first degree assault. On appeal, the State argued that the
sentence was invalid because it was for a term less than the
statutory minimum. The Supreme Court noted that first degree
assault is a Class III felony, punishable by imprisonment
from 1 to 20 years. The court then held that the sentence was
invalid because the district court lacked statutory authority to
impose less than 1 year’s imprisonment for a conviction of first
degree assault.
In State v. Wayt, 13 Neb. App. 759, 701 N.W.2d 841 (2005),
this court found a sentence to be partially invalid when the
minimum term of an indeterminate sentence exceeded the
minimum term permitted by law.
In contrast to the cases cited by the majority, the original
sentence imposed by the trial court in this case is clearly
within the statutory limits. The majority implicitly concludes
that the trial court made a mistake of law when it incorrectly
stated the amount of time Clark had previously served. The
majority states, “[C]learly the court is not empowered to award
more credit for time served prior to sentencing than was actu-
ally served.”
While the trial court clearly erred in determining that Clark
had previously served 361 days in jail, there is no authority to
support the proposition that such an error is a mistake of law,
rather than a mere misstatement or a mistake of fact.
Pursuant to Neb. Rev. Stat. § 47-503 (Reissue 2004), a
court must separately determine the amount of time previously
served and grant the requisite amount of credit for that time
served as a part of the sentence. Section 47-503 provides in
pertinent part:
(1) Credit against a jail term shall be given to any per-
son sentenced 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. . . .
372 	17 NeBRASkA APPeLLATe RePORTS

(2) Credit to any person sentenced to a city or county
jail who is eligible for credit pursuant to subsection (1) of
this section shall be set forth as part of the sentence at the
time such sentence is imposed.
Here, the court adhered to the requirements of the statute.
The trial court did determine the amount of time Clark had
previously served and did set forth the amount of credit as a
part of its sentence, as is required by § 47-503. However, the
court incorrectly stated the time Clark had already served.
The majority does not explain how such a misstatement rises
to the level of a mistake of law, nor does it provide author-
ity supporting the notion that a mistake of fact in sentencing
affects the validity of a sentence.
There is no support for the majority’s conclusion that the
original sentence imposed by the trial court was invalid because
the trial court misstated the amount of time previously served.
Based on the case law in this area and the specific circum-
stances of this case, the court’s error was clearly a mistake of
fact and the sentence was valid.
Trial Court’s Authority to Change Original Sentence
After Defendant Has Left Courthouse.
The trial court did not have the authority to correct its mis-
take of fact. The trial court’s mistake in stating the amount
of time previously served amounts to an inadvertent mispro-
nouncement of a sentence. A trial court lacks authority to cor-
rect or amend such a mispronouncement in its sentencing order
after the defendant leaves the courtroom. See State v. Schnabel,
260 Neb. 618, 618 N.W.2d 699 (2000). Because Clark left not
only the courtroom, but in fact left the courthouse, and days
passed before the court arranged for Clark to be brought back,
the court did not have the authority to later correct Clark’s sen-
tence to reflect the actual amount of time Clark had previously
served. The original sentence should be reinstated.
I write further to address the majority’s reliance on State v.
Wayt, 13 Neb. App. 759, 701 N.W.2d 841 (2005), to support
its ultimate conclusion that a partially invalid sentence can be
modified or revised by a trial court after a defendant has left
the courtroom. I believe State v. Wayt to be incorrectly decided
STATe v. CLARk 	373
Cite as 17 Neb. App. 361

and an inaccurate statement of the controlling law in this area.
Accordingly, I believe that even if the original sentence in this
case was “partially invalid,” the trial court did not have the
authority to alter or revise that sentence in any way.
In State v. Wayt, the defendant was convicted of a Class IV
felony. Subsequently, the district court sentenced the defendant
to 2 to 4 years’ imprisonment. At that time, the minimum term
of a Class IV felony indeterminate sentence could not exceed
one-third of the maximum term allowed by law; that is, the mini-
mum term for a Class IV felony could not exceed 20 months’
imprisonment. 	See 	Neb. 	Rev. 	Stat. 	§ 	29-2204(1)(a)(ii)(A)
(Reissue 2008). After the sentencing hearing, the State and
the defendant submitted a stipulation to the court advising it
that the minimum sentence exceeded that prescribed by law.
In response to the stipulation, the district court entered an
order which was identical to the previous sentencing order
in every respect except that it purported to change the length
of the sentence to 15 months’ to 4 years’ imprisonment. On
appeal, this court found the original sentencing order to be
partially invalid.
The Wayt court discussed whether the trial court had the
authority to alter a partially invalid sentencing order. As a
part of this discussion, the court cited the Nebraska Supreme
Court’s holding in State v. McDermott, 200 Neb. 337, 263
N.W.2d 482 (1978).
In State v. McDermott, the trial court sentenced the defend-
ant to “‘6 months in jail, subject to review in 30 days.’” 200
Neb. at 338, 263 N.W.2d at 483. Upon appeal, the Supreme
Court found that the original sentence pronounced by the trial
court “was not a completely valid and authorized sentence.” Id.
at 339, 263 N.W.2d at 484. The court found that the language,
“‘subject to review in 30 days by the Court,’” was unautho-
rized and that the sentence as pronounced was therefore par-
tially valid and partially invalid or erroneous. Id. The court
went on to state:
The essential part of a sentence is the punishment, includ-
ing the kind and the amount. . . . The addition of a provi-
sion for subsequent review is surplusage. Where a portion
of a sentence is valid and a portion is invalid or erroneous,
374 	17 NeBRASkA APPeLLATe RePORTS

the court has authority to modify or revise the sentence by
removing the invalid or erroneous portion of the sentence
if the remaining portion of the sentence constitutes a com-
plete valid sentence.
Id. essentially, the McDermott court held that a trial court can
modify or revise a sentence by removing any “surplusage” that
is invalid or erroneous, as long as the remaining portion of the
sentence is, by itself, a complete valid sentence.
The circumstances in the Supreme Court’s State v. McDermott
are distinguishable from the circumstances in the Court of
Appeal’s State v. Wayt, 13 Neb. App. 759, 701 N.W.2d 841
(2005). In State v. McDermott, the lower court altered a sen-
tencing order by completely removing an invalid portion, the
surplusage, of the order. The remaining portion of the sentenc-
ing order remained in place. The court did not alter the sen-
tence in any other manner. In contrast, in State v. Wayt, the trial
court did not merely remove an invalid portion of the sentence,
but, rather, modified the sentence by changing the minimum
term of the indeterminate sentence. The trial court changed the
essential part of the sentencing order by altering the length of
the defendant’s sentence. The trial court did not remove mere
“surplusage,” as in State v. McDermott.
Despite this important distinction between State v. McDermott
and State v. Wayt, the Wayt court relied solely on the Supreme
Court’s decision in State v. McDermott when it held that a
trial court was empowered to correct a sentencing order by
altering the minimum term of an indeterminate sentence to
fit within the statutory limits. The Wayt court did not discuss
the difference in the facts of State v. McDermott, nor did the
court specifically state that it was extending the ruling in State
v. McDermott to permit such a revision or alteration of a par-
tially invalid sentence. Rather, it seems that the Wayt court
misconstrued the Supreme Court’s narrow holding in State v.
McDermott. The holding in State v. McDermott permits a par-
tially invalid sentence to be altered only by removing invalid
“surplusage,” as long as the remaining sentence is a complete
valid sentence.
State v. Wayt contains no authority, other than State v.
McDermott, for a trial court’s removal of and replacement to
STATe v. CLARk 	375
Cite as 17 Neb. App. 361

an invalid or erroneous portion of a sentence. Accordingly, I do
not believe the holding in State v. Wayt to be an accurate state-
ment of the controlling law as laid out by the Supreme Court in
State v. McDermott. A trial court does not have the authority to
modify an invalid portion of a sentence by revising, changing,
or amending the terms of the sentence.
The majority herein relies exclusively on the holding in
State v. Wayt to support its conclusion that the trial court herein
had the authority to revise the original sentence to accurately
reflect the amount of time previously served. Because State v.
Wayt was incorrectly decided, the majority’s reliance on this
case is misplaced. Therefore, even if the original sentence in
this case was partially invalid, the trial court did not have the
authority to alter the sentence to reflect the correct amount of
time previously served.
Ultimately, the original sentence in this case contained a
mistake of fact. The trial court mistakenly found that Clark
was entitled to 361 days of time served when, in fact, Clark
was entitled to only 61 days of time served. Because such a
mistake of fact constitutes an inadvertent mispronouncement of
the sentence, the trial court did not have the authority to revise,
modify, or correct the sentence after Clark left the courtroom.
Moreover, even if the court’s mistake invalidated the sentence,
the majority’s reliance on State v. Wayt to support its conclu-
sion that the court could modify the sentence by correcting the
amount of time previously served is misplaced. This court’s
decision in State v. Wayt incorrectly interpreted the Supreme
Court’s decision in State v. McDermott and does not accurately
reflect the state of the law. As such, we should reverse the
judgment and remand the matter to the trial court with instruc-
tions to reinstate the original sentence.
If allowed to stand, the majority opinion adds to the plethora
of permutations of problems that plague the pronouncements of
punishments in Nebraska jurisprudence.
376 	17 NeBRASkA APPeLLATe RePORTS