State v. Nelson

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. NELSON
Cite as 318 Neb. 484
State of Nebraska, appellee, v.
Katrell M. Nelson, appellant.
___ N.W.3d ___
Filed February 28, 2025. 	No. S-23-567.
1. Sentences: Appeal and Error. Whether a defendant is entitled to credit
for time served and in what amount are questions of law, subject to
appellate review independent of the lower court.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the
lower court.
3. Sentences: Statutes. The calculation and application of credit for time
served is controlled by statute, and different statutes govern depending
on whether the defendant is sentenced to jail or prison.
4. Sentences. Neb. Rev. Stat. § 83-1,106(1) (Reissue 2024) mandates
that credit for time served must be given for time spent in custody
on a charge when a prison sentence is imposed for a conviction of
such charge.
5. Sentences: Records. The amount of credit for time served to which a
defendant is entitled is an absolute and objective number that is estab-
lished by the record, and courts have no discretion to grant a defendant
more or less credit than is established by the record.
6. Sentences: Records: Proof. The party advocating for a specific jail
credit calculation has the burden to provide the sentencing court with a
record that establishes such calculation.
7. Sentences: Records: Appeal and Error. When a trial court gives a
defendant more or less credit than he or she is entitled to, that portion
of the pronouncement of sentence is erroneous and may be corrected on
direct appeal to reflect the accurate amount of credit as verified objec-
tively by the record.
8. Sentences. When multiple prison sentences are imposed contempora-
neously, the procedure for applying credit for time served is governed
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. NELSON
Cite as 318 Neb. 484
by the same aggregation principles whether the sentences were ordered
to run consecutively, concurrently, or some combination of the two.
9. ____. When a court imposes multiple sentences contemporaneously,
whether such sentences are ordered to be served consecutively or
concurrently, all available credit for time served under Neb. Rev. Stat.
§ 83-1,106(1) (Reissue 2024) is applied just once, to the aggregate of all
terms imposed.
10. ____. Credit for presentence incarceration under Neb. Rev. Stat.
§ 83-1,106(1) (Reissue 2024) is properly granted only against the aggre-
gate of all terms imposed, and the total length of time to be served under
the sentences is reduced by the time already served before sentencing.
Appeal from the District Court for Douglas County, Timothy
P. Burns, Judge. Affirmed as modified.
Thomas C. Riley, Douglas County Public Defender, and
Mary Mullin Dvorak for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
The primary issue in this appeal is how a sentencing court
should apply available credit for time served under Neb. Rev.
Stat. § 83-1,106 (Reissue 2024) when sentencing a defendant
to concurrent prison terms of identical length. Katrell M.
Nelson was charged, in separate criminal cases, with posses-
sion of a deadly weapon by a prohibited person. He entered
no contest pleas and was sentenced to identical prison terms
in each case, to be served concurrently. In separate sentencing
orders, the court applied all available jail credit to the sentence
in one case and refused Nelson’s request to apply credit in
the other.
Nelson appeals, assigning that the district court erred by
applying all available jail credit to just one of two identical
concurrent sentences. For reasons we will explain, we modify
the award of jail credit and otherwise affirm.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. NELSON
Cite as 318 Neb. 484
I. BACKGROUND
1. Criminal Cases
In 2022, prosecutors in Douglas County filed two separate
criminal cases against Nelson. The first case, docketed as case
No. CR 22-1597 (CR22-1597), arose out of a traffic stop in
April 2022 when officers observed a firearm sticking out from
under the seat of Nelson’s vehicle. Nelson was arrested and
charged with one count of possessing a deadly weapon by a
prohibited person. He was lodged in the Douglas County jail
on that charge and was released on bond 9 days later.
The second case, docketed as case No. CR 22-4477 (CR22-
4477), arose out of a traffic stop in November 2022 while
Nelson was out on bond. During the stop, officers detected
the odor of marijuana and conducted a search of Nelson’s
vehicle. A semiautomatic handgun was discovered underneath
the seat. Nelson was arrested and charged with one count of
possession of a deadly weapon by a prohibited person and
one count of possessing a stolen firearm. He was lodged in
the Douglas County jail on those charges, and his bond in
CR22-1597 was revoked. Thereafter, the parties agree that
Nelson remained in jail on the charges in both CR22-1597
and CR22-4477 for another 232 days.
2. Plea Agreement and
Consolidated Sentencing
Pursuant to a plea agreement, Nelson pled no contest to
the charge of possession of a deadly weapon by a prohib-
ited person in both criminal cases and, in exchange, the
State dismissed the charge of possessing a stolen firearm in
CR22-4477, dismissed an unrelated felony shoplifting charge,
and agreed not to request consecutive sentences. The court
accepted the pleas, received evidence of Nelson’s prior felony
convictions, and found Nelson guilty of two counts of posses-
sion of a deadly weapon by a prohibited person. Both convic-
tions were Class ID felonies, punishable by a maximum of 50
years’ imprisonment and a mandatory minimum of 3 years’

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. NELSON
Cite as 318 Neb. 484
imprisonment. 1 The court ordered preparation of a presentence
investigation report in each case and set the matter for a con-
solidated sentencing hearing.
At the sentencing hearing on June 22, 2023, it was undis-
puted that Nelson had been in custody on the criminal charges
for a total of 241 days. Nine of those days were related only
to the charge for which he was sentenced in CR22-1597, and
232 of those days were related to the charges for which he was
sentenced in both CR22-1597 and CR22-4477.
After 	allocution, 	the 	court 	pronounced 	the 	following
sentences:
[I]t’s the judgment and sentence of the court, that under
CR 22-1597, the offense of possession of a deadly
weapon by a prohibited person, you be sentenced to 6
to 10 years in prison, credit for 241 days already served.
[In] CR 22-4477, I’ll also sentence you to 6 to 10 years
incarceration. Both sentences are to be served under the
supervision of the Nebraska Department of Correctional
Services. I will run those sentences concurrently.
The court’s oral truth-in-sentencing advisement was identi-
cal for both cases. Nelson was advised that assuming he did
not lose any good time, he would be eligible for parole “after
serving four and a half years” and would be mandatorily
discharged “after serving six and a half years.” Both convic-
tions were Class ID felonies that carried mandatory minimum
prison terms, 2 so the court’s truth-in-sentencing advisement
reflected that Nelson would not earn any good time credit
during the mandatory minimum portion of his concurrent
prison terms. 3
Immediately after the sentences were pronounced, the fol-
lowing discussion took place on the record:
1 See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2024).
2 See id.
3 See Neb. Rev. Stat. § 83-1,110 (Reissue 2024). See, also, State v. Russell,
291 Neb. 33, 863 N.W.2d 813 (2015) (explaining good time calculation on
mandatory minimum sentence).

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Nebraska Supreme Court Advance Sheets
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STATE v. NELSON
Cite as 318 Neb. 484
[Defense counsel:] Your Honor, did you give him credit
on CR 22-4477 of the lesser amount, 232 days?
THE COURT: No. I gave him credit for 241 days on
[CR 22-1597] and credit — I don’t give him any credit
for the higher docket because I already gave him credit
for the 241 days on the lower docket. 232 days of that
were the same as the time he was serving on the higher
docket, so he is only entitled to credit once.
The court memorialized these sentences in separate orders.
The order in CR22-1597 imposed a sentence of 6 to 10 years’
imprisonment, to be served concurrently with the sentence
imposed in CR22-4477, and gave Nelson 241 days of credit.
The order in CR22-4477 imposed a sentence of 6 to 10 years’
imprisonment, to be served concurrently with the sentence
imposed in CR22-1597, but did not mention any credit for
time served.
Nelson filed a timely notice of appeal in CR22-4477, chal-
lenging the court’s denial of his request for 232 days of credit
in that case. No appeal was filed in CR22-1597. We moved this
appeal to our docket on our own motion. 4
II. ASSIGNMENT OF ERROR
Nelson assigns, consolidated and restated, that the district
court erred in refusing to apply available jail credit against his
sentence in CR22-4477.
III. STANDARD OF REVIEW
[1] Whether a defendant is entitled to credit for time served
and in what amount are questions of law, subject to appellate
review independent of the lower court. 5
[2] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court. 6
4 See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2022).
5 State v. Castillo-Rodriguez, 313 Neb. 763, 986 N.W.2d 78 (2023).
6 Id.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. NELSON
Cite as 318 Neb. 484
IV. ANALYSIS
[3] In Nebraska, the calculation and application of credit
for time served is controlled by statute, and different statutes
govern depending on whether the defendant is sentenced to
jail or prison. 7 Because Nelson was given prison sentences, his
entitlement to credit for time served is governed by § 83-1,106,
which provides in relevant part:
(1) Credit against the maximum term and any mini-
mum 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 charge is based. This shall specifically
include, but shall not be limited to, time spent in custody
prior to trial, during trial, pending sentence, pending
the resolution of an appeal, and prior to delivery of the
offender to the custody of the Department of Correctional
Services, the county board of corrections, or, in counties
which do not have a county board of corrections, the
county sheriff.
[4] Section 83-1,106(1) mandates that credit for time served
must be given for time spent in custody on a charge when a
prison sentence is imposed for a conviction of such charge. 8
[5-7] The amount of credit for time served to which a
defendant is entitled is an absolute and objective number that
is established by the record, and courts have no discretion to
grant a defendant more or less credit than is established by the
record. 9 The party advocating for a specific jail credit calcu-
lation has the burden to provide the sentencing court with a
record that establishes such calculation. 10 When a trial court
gives a defendant more or less credit than he or she is entitled
7 State v. Rivera-Meister, ante p. 164, 14 N.W.3d 1 (2024).
8 See id.
9 Id.
10 Id.

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Nebraska Supreme Court Advance Sheets
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STATE v. NELSON
Cite as 318 Neb. 484
to, that portion of the pronouncement of sentence is erroneous
and may be corrected on direct appeal to reflect the accurate
amount of credit as verified objectively by the record. 11
In this appeal, the record established, and the parties agree,
that Nelson was in custody for a combined total of 241 days
as a result of the criminal charges for which he was sentenced
on June 22, 2023. Nine of those 241 days were related exclu-
sively to the charge in CR22-1597, and 232 of those days were
related to the charges in both CR22-1597 and CR22-4477.
But Nelson and the State disagree about how a sentenc-
ing court should apply available credit for time served under
§ 83-1,106(1) when a court imposes concurrent prison sen-
tences of identical length. To address their arguments, we
begin with an overview of the appellate cases construing
§ 83-1,106(1) and describing the procedure sentencing courts
should follow when applying available credit to consecutive
and concurrent sentences.
1. Cases Construing § 83-1,106
The current provisions of § 83-1,106 were enacted in 1993, 12
and in 1994, the Nebraska Court of Appeals was the first appel-
late court to construe those provisions in State v. Sanchez. 13
Because Sanchez established several foundational principles
that have influenced the development of our case law in this
area, we address it in some detail.
(a) State v. Sanchez
The defendant in Sanchez was convicted of robbery and
assault and was sentenced to consecutive prison terms of 16
to 50 years, and 6 to 20 years, respectively. Before sentenc-
ing, the defendant had been in custody on both cases for a
11 See id.
12 See 1993 Neb. Laws, L.B. 113, § 4.
13 State v. Sanchez, 2 Neb. App. 1008, 520 N.W.2d 33 (1994).

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Nebraska Supreme Court Advance Sheets
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STATE v. NELSON
Cite as 318 Neb. 484
collective total of 218 days. The sentencing court awarded
all 218 days of credit to the robbery sentence and none to the
assault sentence.
On direct appeal, the defendant in Sanchez claimed the
sentencing court’s application of jail credit was erroneous.
He claimed that he should have received 218 days of credit
against each sentence, reasoning that § 83-1,106(1) required
courts to grant credit “for time spent in custody as a result of
the criminal charge for which a prison sentence is imposed.”
The Court of Appeals rejected that argument, explaining:
Courts in other states, construing statutes similar to
§ 83-1,106, have uniformly held that when consecutive
sentences are imposed for two or more offenses, peri-
ods of presentence incarceration may be credited only
against the aggregate of all terms imposed: an offender
who receives consecutive sentences is entitled to credit
against only the first sentence imposed, while an offender
sentenced to concurrent terms in effect receives credit
against each sentence. 14
Sanchez observed that these principles supported the purpose
of mandatory jail credit statutes like § 83-1,106(1), reasoning:
The purpose of statutes which require the granting of
credit for presentence incarceration is to assure that the
equal protection rights of indigent defendants who can-
not afford to post bond are not violated. Without credit
for time served, the total period of confinement served
by an indigent defendant would be more than that of a
defendant who could afford to post bond. However, once
credit has been granted [to the aggregate sentence], there
is no additional constitutional purpose to be served by
granting a second or double credit against a later con-
secutive sentence. 15
14 Id. at 1012-13, 520 N.W.2d at 36 (internal quotation marks omitted).
15 Id. at 1013, 520 N.W.2d at 37 (internal quotation marks omitted).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. NELSON
Cite as 318 Neb. 484
Sanchez also observed that if § 83-1,106(1) were construed
to require that all available credit must be granted against each
consecutive sentence, it “would actually penalize those who
could afford to post bail” by giving “double credit” to those
who remained in custody. 16 The court in Sanchez reasoned
that by applying all available credit just once, to the aggregate
of consecutive prison sentences, the purpose of the jail credit
statute was accomplished because those who could not afford
to post bail would be treated no better, or worse, than those
who could afford to post bail.
Sanchez thus announced the general rule that when consecu-
tive prison sentences are imposed, “[c]redit for presentence
incarceration is properly granted only against the aggregate of
all terms imposed[, and the] total length of time to be served
under the sentences is reduced by the time already served
before sentencing.” 17 But in dicta addressing how the general
rule should be applied to concurrent sentences, Sanchez stated:
Where concurrent sentences are given, credit is, in effect,
applied against each sentence. This must be done because
the term of the longest sentence determines the total
length of time the person is held. However, the end result
is the same as in the consecutive sentence situation where
credit is applied against only the first sentence. 18
Although Sanchez described seemingly different procedures
for applying credit depending on whether the court imposed
consecutive or concurrent prison sentences, both procedures
required the sentencing court to consider “[t]he total time to be
served under the sentences” imposed, and then reduce that “by
the time served before sentencing.” 19
16 Id. at 1014, 520 N.W.2d at 37 (emphasis in original).
17 Id. (emphasis in original).
18 Id.
19 Id.

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Nebraska Supreme Court Advance Sheets
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STATE v. NELSON
Cite as 318 Neb. 484
(b) State v. Banes
In 2004, this court generally endorsed both the reasoning
and holding of Sanchez in State v Banes. 20 Banes involved
concurrent prison sentences imposed contemporaneously in
two separate criminal cases. The first case was a felony, and
the defendant was sentenced to imprisonment for 20 months
to 4 years. The second case was a misdemeanor, and he was
sentenced to a concurrent prison term of 1 year. Prior to
sentencing, the defendant was detained in jail for 29 days
on only the felony case, for 6 days on only the misdemeanor
case, and for 246 days on both cases. At sentencing, the court
gave the defendant credit for 29 days against the sentence in
the felony case and applied all remaining credit to the sen-
tence in the misdemeanor case.
The Court of Appeals reversed the sentencing order and
remanded the cause with directions to award the defendant
an additional 246 days of credit on the felony case, reasoning
that he was entitled to such credit against each of the con-
current sentences. We granted the State’s petition for further
review. Although we ultimately affirmed the Court of Appeals
decision to reverse the sentencing order and remand the cause,
we disagreed that the defendant was entitled to the 246 days
of credit in both cases. We reasoned:
Under our statutes, an offender shall be given credit
for time served as a result of the charges that led to the
sentences; however, presentence credit is applied only
once. § 83-1,106(1) and (4). In State v. Sanchez, . . . the
Court of Appeals recognized that when credit is calcu-
lated for concurrent sentences, the longest sentence deter-
mines the offender’s actual length of time in prison, and
credit is “in effect” given to each sentence. Thus, when
concurrent sentences are imposed, the credit is applied
20 State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004).

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STATE v. NELSON
Cite as 318 Neb. 484
once, and the credit applied once, in effect, is applied
against each concurrent sentence. 21
We concluded in Banes that although 246 days of credit
was available in both cases, “[c]redit is to be given to only
one sentence in one case, although we recognize that when an
offender has received concurrent sentences, the ‘effect’ is that
credit is applied against each sentence.” 22
(c) State v. Wills and State v. Wines
In the 2013 case of State v. Wills, 23 we summarized the appli-
cable principles from Sanchez and Banes this way: “[W]ith
consecutive sentences, periods of presentence incarceration
are credited against the aggregate of all terms imposed. And
with concurrent sentences, such periods are credited against
the longest sentence, but are, in effect, applied against all
the sentences.”
And most recently, in the 2021 case of State v. Wines, 24 we
reiterated that “‘when concurrent sentences are imposed, the
credit is applied once, and the credit applied once, in effect, is
applied against each concurrent sentence.’”
But our published opinions have not yet discussed the pro-
cedure for applying available credit to concurrent sentences of
equal length. 25 We moved this appeal to our docket to address
that question, and we turn to it now.
21 Id. at 811-12, 688 N.W.2d at 599 (emphasis supplied).
22 Id. at 813, 688 N.W.2d at 599-600.
23 State v. Wills, 285 Neb. 260, 266-67, 826 N.W.2d 581, 587 (2013)
(emphasis in original).
24 State v. Wines, 308 Neb. 468, 475, 954 N.W.2d 893, 898 (2021), quoting
Banes, supra note 20.
25 But see State v. Nunez, No. A-16-364, 2016 WL 5746622 at *4 (Neb. App.
Oct. 4, 2016) (selected for posting to court website) (unpublished opinion
addressing application of jail credit to identical concurrent sentences and
holding that because “[t]he 597 days’ credit can only be applied once[,] it
is irrelevant whether it is applied against one count or the other, since once
applied, it is in effect applied against the other concurrent sentence”).

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Nebraska Supreme Court Advance Sheets
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STATE v. NELSON
Cite as 318 Neb. 484
2. Applying Available Credit to Identical
Concurrent Sentences
As the foregoing cases illustrate, Nebraska appellate courts
have construed § 83-1,106 to require sentencing courts to
apply all available credit, but only once. 26 To accomplish this
when two or more sentences are imposed contemporaneously,
our cases describe seemingly different procedures, depending
on whether the court has imposed consecutive or concurrent
sentences. For consecutive sentences, all available periods of
presentence custody are credited just once, against the aggre-
gate of all terms imposed. 27 And for concurrent sentences, all
available periods of presentence custody are credited once,
against the longest sentence, which “in effect” applies the
credit against each concurrent sentence. 28
The statutory language of § 83-1,106(1) does not expressly
mandate any particular procedure for applying available jail
credit. But our cases have explained that when multiple sen-
tences are imposed contemporaneously, these procedures are
designed to “effectuate the objective of § 83-1,106(1)” 29 by
ensuring that “all credit available due to presentence incar-
ceration [is] applied, but only once. 30 These procedures also
ensure that the total period of confinement served by an indi-
gent defendant is neither more, nor less, than would be served
by a defendant who receives the same sentence but who could
afford to post bond. 31 And we presume the Legislature has
26 Banes, supra note 20.
27 See Wills, supra note 23. See, also, State v. Williams, 282 Neb. 182, 802
N.W.2d 421 (2011); Banes, supra note 20. But see Sanchez, supra note 13,
2 Neb. App. at 1013, 520 N.W.2d at 36 (noting all available credit should
be applied against aggregate of all consecutive terms by crediting “‘only
the first sentence imposed’”).
28 Id.
29 Banes, supra note 20, 268 Neb. at 810, 688 N.W.2d at 598.
30 Id. at 811, 688 N.W.2d at 599.
31 See Sanchez, supra note 13.

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STATE v. NELSON
Cite as 318 Neb. 484
acquiesced in our construction of § 83-1,106 because the stat-
ute has not been amended in response to any of our opinions
reciting these procedures. 32
That said, the procedure we have endorsed for applying
credit to concurrent sentences necessarily assumes that the
longest concurrent sentence will dictate how much time is
actually served, and it is not clear how to apply that procedure
when identical concurrent sentences are imposed. When the
endorsed procedure requires that all available credit be applied
just once, to the longest concurrent sentence, what happens
when there is no longest sentence?
The State suggests the existing procedure for applying jail
credit to concurrent sentences, as described in Banes and
Wines, 33 can still generally be followed even when identical
concurrent sentences are imposed. The State observes that the
“aggregate of two concurrent 6 to 10 year imprisonment sen-
tences is 6 to 10 years” and contends that “giving 241 days
[of] credit in one case, in effect, applies the credit to both con-
current sentences.” 34 We understand the State to suggest that
when identical concurrent sentences are imposed, all available
jail credit will “in effect” 35 be applied to the aggregate of both
sentences, even if the court’s sentencing order expressly states
that all credit is applied to only one sentence.
Nelson, on the other hand, argues that because the court’s
separate sentencing orders applied all available jail credit to
the sentence in CR22-1597, and none to the identical concur-
rent sentence in CR22-4477, those orders must be followed
32 See, e.g., State v. Muratella, 314 Neb. 463, 470, 991 N.W.2d 25, 31 (2023)
(“[w]here a statute has been judicially construed and that construction has
not evoked an amendment, it will be presumed that the Legislature has
acquiesced in the court’s determination of the Legislature’s intent”).
33 See, Wines, supra note 24; Banes, supra note 20.
34 Brief for appellee at 12.
35 Id.

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STATE v. NELSON
Cite as 318 Neb. 484
and the jail credit cannot be applied differently. 36 And he
argues that under those sentencing orders, he has not been
given any jail credit in CR22-4477 and thus “will serve every
day” of that sentence without receiving “a single day of credit
that he spent in pretrial detention on that case.” 37 According
to Nelson, the result will be that on the day he completes the
6-to-10-year sentence in CR22-1597, he will still have 241
days left to serve on the sentence in CR22-4477. He argues the
only way to ensure that he gets all the jail credit to which he is
entitled is to apply the available credit in both cases.
We are not persuaded that the procedure advocated by
either party can be squared with the provisions and purpose of
§ 83-1,106, or our precedent on applying available credit. The
State’s procedure would effectively require the Department
of Correctional Services (DCS) to ignore the plain language
of the sentencing order in CR22-4477 when calculating how
much time a defendant will serve, and instead decide for
itself how to apply the available credit when identical concur-
rent sentences have been imposed. But as we recognized in
Schaeffer v. Gable, 38 “DCS does not have authority to deter-
mine how time served is to be credited and instead must fol-
low court orders crediting such time.” Schaeffer also observed
that the jail credit statute “does not authorize DCS to elect the
sentence to which time served should be credited when it is
determining a prisoner’s tentative release date.” 39
The procedure urged by Nelson must also be rejected.
Applying all available jail credit to multiple concurrent sen-
tences would be contrary to the settled principle that available
36 See, e.g., Schaeffer v. Gable, 314 Neb. 524, 537, 991 N.W.2d 661,
670 (2023) (noting that sentencing order determining jail credit under
§ 83-1,106 must be followed and Department of Correctional Services has
no authority “to elect the sentence to which time served should be credited
when it is determining a prisoner’s tentative release date”).
37 Brief for appellant at 9.
38 Schaeffer, supra note 36, 314 Neb. at 536, 991 N.W.2d at 669.
39 Id. at 537, 991 N.W.2d at 670.

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STATE v. NELSON
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credit under § 83-1,106 is to be applied only once. 40 And such
an order could result in awarding more days of credit than
were actually served on the charges for which the defendant
was sentenced. This would frustrate, rather than advance, the
goal of ensuring that the total period of confinement served
by an indigent defendant is neither more, nor less, than would
be served by a defendant who receives the same sentence but
who could afford to post bond. 41
Rather than endorsing the procedures urged by either party,
we choose instead to reexamine what we meant in Banes
when we said: “When concurrent sentences are imposed, the
credit is applied once, and the credit applied once, in effect, is
applied against each concurrent sentence.” 42
Banes observed that “concurrent sentences obviously com-
mence at the same time and in a functional effect result in
one term of imprisonment represented by the longest of the
concurrent sentences imposed.” 43 Although our prior cases
directed courts to consider the aggregate of all terms only
when applying available credit to consecutive sentences, a
careful review of our reasoning in concurrent sentencing cases
shows we have been applying aggregation principles in those
cases too, just using different terminology.
By instructing courts to apply all available presentence
credit against the longest concurrent sentence, and by acknowl-
edging that doing so “in effect” applies the credit to all con-
current sentences, Nebraska appellate courts have, as a prac-
tical matter, endorsed a procedure that applies all available
credit to the aggregate term of all concurrent sentences. This is
so because concurrent sentences commence at the same time,
40 See, Wines, supra note 24; Banes, supra note 20.
41 See Sanchez, supra note 13.
42 Banes, supra note 20, 268 Neb. at 812, 688 N.W.2d at 599. See, also,
Sanchez, supra note 13.
43 Banes, supra note 20, 268 Neb. at 812, 688 N.W.2d at 599 (internal
quotation marks omitted).

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concurrent sentences run at the same time, and the term of the
longest concurrent sentence effectively determines the amount
of time the defendant will spend in prison. 44
[8] We acknowledge the language used in our prior cases
to describe the procedure for applying credit, and particularly
our use of the phrase “in effect,” may have caused confusion.
Returning to original principles, we take this opportunity to
clarify that when multiple prison sentences are imposed con-
temporaneously, the procedure for applying credit for time
served under § 83-1,106 is governed by the same aggregation
principles whether the sentences were ordered to run consecu-
tively, concurrently, or some combination of the two.
[9,10] We now hold that when a court imposes multiple
sentences contemporaneously, whether such sentences are
ordered to be served consecutively or concurrently, all avail-
able credit for time served under § 83-1,106(1) is applied just
once, to the aggregate of all terms imposed. This procedure
is in full accord with the foundational principle first recited
by the Court of Appeals in Sanchez more than 30 years ago:
“Credit for presentence incarceration is properly granted only
against the aggregate of all terms imposed[, and the] total
length of time to be served under the sentences is reduced
by the time already served before sentencing.” 45 We continue
to adhere to this principle, but we no longer see a reason
to endorse different procedures for applying credit under
§ 83-1,106(1), depending on whether consecutive or concur-
rent sentences are imposed. With the benefit of hindsight, we
think a uniform procedure for applying available jail credit
to multiple sentences will be simpler to use, will be easier to
understand, and may help reduce confusion when calculating
the total amount of time a defendant will serve on contempo-
raneously imposed sentences.
44 See id.
45 Sanchez, supra note 13, 2 Neb. App. at 1014, 520 N.W.2d at 37 (emphasis
in original).

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We also clarify that when a court applies all available credit
against the aggregate of all sentences imposed contemporane-
ously, there is no reason to mechanically attach such credit
to any particular sentence. 46 The formality of identifying just
one sentence to receive all available credit is neither accurate,
nor necessary, when all available credit is being applied to the
aggregate of all terms imposed.
Finally, for the sake of completeness, we emphasize that
although courts use aggregation principles when applying
available jail credit, precision is still required when identi-
fying how many days a defendant spent in custody, and on
which charges, for purposes of calculating available credit
under § 83-1,106(1). In criminal cases, a judge is 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). 47 Sentencing courts have no discretion
to grant a defendant credit for more or less time, in terms
of total days served, than is established by the record, 48 and
the party advocating for a specific jail credit calculation has
the burden to provide the sentencing court with a record that
establishes such calculation. 49 Similarly, sentencing courts are
encouraged to make a clear record of the jail credit calcula-
tion, including how much time was spent in custody and on
46 See, e.g., Wills, supra note 23, 285 Neb. at 267, 826 N.W.2d at 587
(when concurrent sentences are imposed, periods of pretrial custody “are
credited against the longest sentence, but are, in effect, applied against all
the sentences”); State v. Williams, supra note 27, 282 Neb. at 199, 802
N.W.2d at 434 (when consecutive sentences are imposed, court should
give all available credit “against only the first count, thereby crediting [it]
against the aggregate of the minimum and the aggregate of the maximum
sentences imposed”); Sanchez, supra note 13, 2 Neb. App. at 1013, 520
N.W.2d at 36 (suggesting all available credit should be applied against
aggregate of all consecutive terms by crediting “‘only the first sentence
imposed’”).
47 See State v. Barnes, 303 Neb. 167, 927 N.W.2d 64 (2019).
48 See Rivera-Meister, supra note 7.
49 Id.

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which charges, so the court’s calculation of available credit
is clear in the event of an appeal or if one of the sentences
is later set aside. 50 And it goes without saying that all com-
mitments should precisely reflect the court’s sentencing pro-
nouncements and accompanying sentencing orders, including
credit for time served.
Having clarified the procedure to be followed when apply-
ing available credit to multiple sentences imposed contempora-
neously, we now apply that procedure to the record in this case.
3. Nelson’s Credit
The record establishes that Nelson was in custody for 9
days on the charge for which he was sentenced in CR22-1597
and for 232 days on the charge for which he was sentenced in
both CR22-1597 and CR22-4477, for a total of 241 days of
available credit under § 83-1,106(1). In each case, Nelson was
sentenced to an indeterminate prison sentence of 6 to 10 years,
and the sentences were ordered to be served concurrently.
Nelson had a total of 241 days of available credit under
§ 83-1,106(1). That credit must be applied, just once, to the
aggregate of all terms imposed. It appears from the court’s
oral truth-in-sentencing advisement that this is the outcome the
court intended, but its oral pronouncement, and the terms of
the separate sentencing orders, said something different.
The order in CR22-1597 imposed a prison sentence of 6 to
10 years, ordered that sentence to run concurrently with the
sentence in CR22-4477, and gave Nelson credit for 241 days
previously served.
The order in CR22-4477 imposed a prison sentence of 6
to 10 years, ordered that sentence to run concurrently with
the sentence in CR22-1597, but made no reference at all to
credit for time served. The sentencing order directed that a
commitment was to issue accordingly, and although the record
on appeal does not include a commitment, we assume it was
50 See § 83-1,106(3).

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issued using language that mirrored the sentencing order and
therefore did not reference any credit for time served.
When a trial court gives a defendant more or less credit than
he or she is entitled to, that portion of the pronouncement of
sentence is erroneous and may be corrected on direct appeal
to reflect the accurate amount of credit as verified objectively
by the record. 51 We therefore modify the sentencing order
in CR22-4477 to state that “Nelson is entitled to 241 days
of credit for time served against the aggregate of all terms
imposed in CR22-4477 and CR-22-1597.” 52 And we direct the
district court, upon spreading the mandate, to modify the com-
mitment accordingly using the same language.
V. CONCLUSION
For the foregoing reasons, we modify the sentencing order
to correct the award of credit for time served, and otherwise
affirm the judgment.
Affirmed as modified.
Heavican, C.J., not participating in the decision.
51 See Rivera-Meister, supra note 7.
52 See Williams, supra note 27, 282 Neb. at 199, 802 N.W.2d at 434
(modifying sentencing order to clarify that all available jail credit was
awarded “against the aggregate of the minimum and the aggregate of the
maximum sentences” of imprisonment imposed).