Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/26/2024 09:08 AM CST
- 290 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. VENCES
Cite as 33 Neb. App. 290
State of Nebraska, appellant, v.
Fernando J. Vences, appellee.
___ N.W.3d ___
Filed December 17, 2024. No. A-24-280.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
that does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.
2. Criminal Law: Judgments: Records. A court has inherent power in a
criminal case to correct its records to reflect the “truth,” nunc pro tunc.
3. Judgments: Records. The purpose of an order nunc pro tunc is to correct a record which has been made so that it will truly record the action
had, which through inadvertence or mistake was not truly recorded.
4. ____: ____. It is not the function of an order nunc pro tunc to change or
revise a judgment or order, or to set aside a judgment actually rendered,
or to render an order different from the one actually rendered, even
though such order was not the order intended.
5. Judgments. Clerical errors may be corrected by an order nunc pro tunc,
but judicial errors may not.
6. Judgments: Jurisdiction. If a court has jurisdiction and authority to
enter a second order, its incorrect characterization as an order nunc pro
tunc is of no consequence.
7. Sentences: Time. A sentence validly imposed takes effect from the time
it is pronounced.
8. 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.
9. Sentences: Judges: Records. 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;
- 291 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. VENCES
Cite as 33 Neb. App. 290
and no written notation of the inadvertently mispronounced sentence
was made in the records of the court.
10. Sentences. The location of the sentence is a substantive part of a sentencing order.
Appeal from the District Court for Lincoln County: Cindy R.
Volkmer, Judge. Reversed and vacated, and cause remanded
with directions.
Kortnei Smith, Deputy Lincoln County Attorney, for
appellant.
No appearance by appellee.
Riedmann, Chief Judge, and Moore and Welch, Judges.
Welch, Judge.
INTRODUCTION
The State of Nebraska has been granted leave to appeal the
resentencing of Fernando J. Vences following the imposition of
valid sentences via an order nunc pro tunc. For the reasons set
forth herein, we reverse the district court’s decision, vacate its
order nunc pro tunc, and remand the cause with directions for
the district court to reinstate Vences’ original sentences.
STATEMENT OF FACTS
Pursuant to a plea in November 2022, Vences was convicted
of two counts of negligent child abuse, both Class I misdemeanors. In December, Vences was sentenced to 24 months’
probation on count I and 18 months’ probation on count II to
be served consecutively.
In April 2023, the State filed a motion to revoke Vences’
probation. In November, Vences entered an admission to the
motion to revoke that was accepted by the court. Thereafter,
on January 23, 2024, the court resentenced Vences to concurrent terms of 270 days’ imprisonment in the Lincoln County
jail with credit for 16 days served. The sentences were ordered
to be served consecutively to the sentence in Lincoln County
District Court case No. CR23-162, in which he had been
- 292 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. VENCES
Cite as 33 Neb. App. 290
convicted of a felony and which sentence was imposed the
same day. In case No. CR23-162, Vences was sentenced to 2
years’ to 2 years’ imprisonment with the Nebraska Department
of Correctional Services (DCS).
On February 8, 2024, Vences filed a motion to modify his
sentences, claiming that the court’s sentence requiring him to
serve 270 days at the Lincoln County jail consecutively to his
2-year term at DCS made him ineligible for work release. As
such, Vences requested that the court modify his sentences to
change the facility at which he was required to serve the sentences, which he argued would resolve the problem. Vences
argued that the modification “wouldn’t actually change his
sentence[s], it would only change the facility at which he is
serving his sentence[s].”
The court granted Vences’ motion and issued an order nunc
pro tunc that changed the court’s prior order to provide that
Vences was sentenced to DCS instead of the Lincoln County
jail. Pursuant to
Neb. Rev. Stat. § 29-2315.01 (Cum. Supp.
2022), this court granted the State’s request for leave to appeal
the district court’s resentencing of Vences via an order nunc
pro tunc.
ASSIGNMENT OF ERROR
The State contends that the district court erred in entering
an order nunc pro tunc that granted Vences’ motion to modify
his sentences.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion independent of the lower court’s decision. State v. Melton, 308 Neb.
159,
953 N.W.2d 246 (2021).
ANALYSIS
We first address the State’s claim that the district court
erred in modifying Vences’ sentences utilizing an order nunc
pro tunc.
- 293 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. VENCES
Cite as 33 Neb. App. 290
[2-5] As the Nebraska Supreme Court stated in State v. Bol,
288 Neb. 144, 159,
846 N.W.2d 241, 254-55 (2014):
A court has inherent power in a criminal case to correct its records to reflect the “truth,” nunc pro tunc. The
purpose of an order nunc pro tunc is to correct a record
which has been made so that it will truly record the action
had, which through inadvertence or mistake was not truly
recorded. It is not the function of an order nunc pro tunc
to change or revise a judgment or order, or to set aside
a judgment actually rendered, or to render an order different from the one actually rendered, even though such
order was not the order intended. Clerical errors may be
corrected by an order nunc pro tunc, but judicial errors
may not.
[6] Here, the district court’s use of an order nunc pro tunc
was to revise sentences that had already been rendered, not
correct an error by a scrivener. Thus, the court’s order that
modified its prior sentencing order cannot properly be termed
an order nunc pro tunc. “But if the court had jurisdiction and
authority to enter the second order, its incorrect characterization as an order nunc pro tunc is of no consequence.” State
v. Bol, 288 Neb. at 160, 846 N.W.2d at 255. Thus, we turn to
the question of whether the district court had jurisdiction and
authority to enter the second order, modifying the location
where Vences would serve his sentences for the two counts of
negligent child abuse—from the Lincoln County jail to DCS.
[7-9] In State v. Lessley, 301 Neb. 734, 744,
919 N.W.2d
884, 891 (2018), the Nebraska Supreme Court stated:
A sentence validly imposed takes effect from the time
it is pronounced. 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. Any
attempt to do so is of no effect, and the original sentence remains in force. The circumstances under which
a judge may correct an inadvertent mispronouncement of
- 294 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. VENCES
Cite as 33 Neb. App. 290
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.
Here, the district court imposed valid sentences for Vences’
misdemeanor negligent child abuse convictions. We recognize
that Neb. Rev. Stat. § 28-106(2) (Reissue 2016) provides, in
pertinent part:
Sentences of imprisonment in misdemeanor cases shall be
served in the county jail, except that such sentences may
be served in institutions under the jurisdiction of [DCS] if
the sentence is to be served concurrently or consecutively
with a term for conviction of a felony and the combined
sentences total a term of one year or more.
(Emphasis supplied.) However, this language is permissive.
Thus, although the district court originally had the option to
order Vences’ sentences to be served under the jurisdiction of
DCS, the court’s order provided that Vences’ sentences were
to be served at the Lincoln County jail. Thereafter, the district
court, in a subsequent order, attempted to modify the location
where Vences’ sentences were to be served. Because the court’s
original sentences imposed upon Vences were validly imposed,
the only remaining question is whether the location at which
a sentence is ordered to be served is a substantive part of the
sentence. If it is, under existing law, the court is not at liberty
to modify, amend, or reverse the sentence in any way.
During the hearing governing Vence’s motion to modify his
sentences, Vences conceded that if the location of the sentences
is considered a substantive part of the sentencing order, the
district court was not authorized to modify the order. However,
Vences argued that although the term of the sentence is a substantive component of a sentencing order, the location where
the sentence is ordered to be served is not. We disagree.
- 295 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. VENCES
Cite as 33 Neb. App. 290
[10] In determining that the location of a sentence is a
part of a sentencing order, we rely on three prior Nebraska
Supreme Court decisions: State v. Becker,
304 Neb. 693,
936
N.W.2d 505 (2019); State v. Wilcox,
239 Neb. 882,
479 N.W.2d
134 (1992); and State v. Sabala,
210 Neb. 304,
313 N.W.2d
700 (1981). In State v.
Becker, supra, the Nebraska Supreme
Court analyzed whether plain error occurred in connection
with a district court’s failure to announce the location where
the defendant’s sentences would be served. The court held that
because sentencing was governed by § 28-106(2), which statutorily required the sentences to be served in the county jail, the
location was inherent in the order and there was no plain error
in failing to explicitly state it in the court’s order. Conversely,
in State v.
Wilcox, supra, where the applicable sentencing
statute required a minimum term of 1 year in an institution
under the jurisdiction of DCS, the Nebraska Supreme Court
found that the district court committed plain error in sentencing the defendant to a term of less than 1 year in the county
court detention center. Finally, in State v.
Sabala, supra, the
Nebraska Supreme Court affirmed the sentence of the district
court that modified a county court order that had originally
sentenced the defendant to serve his sentence in the county
jail. In modifying the sentence, the district court found that the
county court erred in not requiring the sentence to be served
in an institution under the jurisdiction of DCS as required by
statute and modified the sentence for the term of incarceration
to be served in the statutorily required location. We find that
these cases all stand for the proposition that the location of the
sentence is a substantive part of a sentencing order.
Because the district court in this case had the discretion
under § 28-106(2) to order Vences’ misdemeanor sentences to
be served under the jurisdiction of DCS but did not do so in its
original order, the court’s later attempt to modify the original
validly imposed sentences was of no effect and Vences’ original sentences remain in force.
- 296 -
Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. VENCES
Cite as 33 Neb. App. 290
CONCLUSION
For the reasons stated above, we reverse the district court’s
decision, vacate its order nunc pro tunc, and remand the cause
with directions to reinstate the original sentences imposed.
Reversed and vacated, and cause
remanded with directions.
