State v. Harms
934 N.W.2d 850
Neb.2019Background:
- In 2015 Harms was convicted in Dawson County and received 40–120 months in DCS custody; he was paroled in March 2018.
- On May 28, 2018 Harms was arrested in Seward County for possession of burglar’s tools and initially jailed; bond was set and later converted to personal recognizance so Harms could return to DCS custody after his parole was revoked.
- Harms pled no contest to attempted possession of burglar’s tools (Class I misdemeanor).
- On November 19, 2018 the Seward County court sentenced Harms to 1 year in the county jail and credited him with 23 days served pretrial.
- Harms requested additional credit for 150 days he spent in DCS custody after bonding out; the court denied the additional credit and Harms appealed, also arguing the 1-year sentence was excessive.
- The Nebraska Supreme Court moved the case to its docket and affirmed the district court’s judgment.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Credit for time served | State: Credit governed by §47-503; only jail time "as a result of the charge" counts | Harms: Entitled to 173 days (23 jail + 150 DCS) because parole revocation resulted from Seward conduct | Court: Only 23 days credit; time in DCS on separate sentence not creditable against county jail term; later sentence runs consecutively absent express concurrency |
| Whether sentence was excessive | State: 1-year term within statutory limit and supported by Harms’ extensive record and high risk to reoffend | Harms: Record does not justify maximum sentence; court abused discretion | Court: No abuse of discretion; judge considered relevant factors and articulated reasons; affirmed 1-year sentence |
Key Cases Cited
- State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (Neb. 2009) (§47-503 intent: ensure defendants receive jail credit they are entitled to, no more or less)
- State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (Neb. 2018) (defendant serving sentence on one conviction is not entitled to credit on unrelated offense)
- State v. McNerny, 239 Neb. 887, 479 N.W.2d 454 (Neb. 1992) (a later-imposed sentence is consecutive unless court expressly orders concurrency)
- State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (Neb. 2019) (framework for appellate review of alleged excessive sentences)
- State v. Bree, 285 Neb. 520, 827 N.W.2d 497 (Neb. 2013) (distinguishing statutory schemes governing jail credit vs. prison credit)