This is not the first time, however, that we have been presented with an argument that under § 83-1,106(1), a defendant should have credit for time spent in custody applied to multiple concurrent sentences. In State v. Banes , 268 Neb. 805, 688 N.W.2d 594 (2004), we held that the Court of Appeals erred when it found that a defendant was entitled to have credit for the same time period in custody applied to two different concurrent sentences. The defendant in Banes had been arrested on one charge, released on bond for that charge, and then arrested on an unrelated charge after which the district court allowed a refund of the bond money posted in the first case.
We have stated that because of the mandatory "shall" language used in § 83-1,106, the statute 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. State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). We further stated in Banes that § 83-1,106(4) was to be read "as requiring that such credit shall be given which has not otherwise been applied, and the import of this subsection is that all credit available due to presentence incarceration shall be applied, but only once."
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). An abuse of discretion in imposing a sentence occurs when a sentencing court's reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result.
We have stated that because of the mandatory "shall" language used in § 83-1,106, the statute 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. State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). We further stated in Banes that § 83-1,106(4) was to be read "as requiring that such credit shall be given which has not otherwise been applied, and the import of this subsection is that all credit available due to presentence incarceration shall be applied, but only once."
We hold that "time spent in custody under the former charge," as found in § 83-1,106(4), refers to jail time and not to prison time. State v. Banes, 268 Neb. 805, 811, 688 N.W.2d 594, 598 (2004) (emphasis supplied). Id. See, also, State v. Carngbe, supra note 1.
See, 2010 Neb. Laws, L.B. 712, § 40; Neb.Rev.Stat. § 47–502 (Reissue 2010); State v. Atkins, 250 Neb. 315, 549 N.W.2d 159 (1996); Williams v. Hjorth, 230 Neb. 97, 430 N.W.2d 52 (1988). See, e.g., State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). We conclude that the court erred in crediting all 498 days to Wills' 1–year sentence.
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. In State v. Banes, 268 Neb. 805, 811–12, 688 N.W.2d 594, 599 (2004), we stated that under § 83–1,106, “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.” The Nebraska Court of Appeals has noted:
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). 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).State v. Torres, supra note 8.
Certain exceptions from this general rule are permitted by statute, but because such statutes are penal statutes, they are to be strictly construed against the government. See State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). In the instant case, the State appealed the district court's decision under § 29-2315.
Pursuant to Neb. Rev. Stat. § 83-1,106(1) (Reissue 1999), a court must give credit for time served on a charge when a prison sentence is imposed for that charge. See State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004). In this case, the sentence originally pronounced is the sentence imposed in this case.