State of Nebraska v. Fernando J. Vences

Lincoln, Nebraska criminal defense lawyer represented the Defendant charged with negligent child abuse.



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 [33 Neb.App. 292] 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.



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CRIMINAL LAW. NUNC PRO TUNC ORDERS. The case concerns the improper use of an order nunc pro tunc by a district court to modify previously imposed sentences, where the appellate court had to determine whether the court could modify the location of incarceration after valid sentences were put into execution.



CRIMINAL PROCEDURE. JURISDICTION OF SENTENCING COURT. The legal issue addressed whether a district court had jurisdiction and authority to alter the substantive terms of a sentence by changing the location of imprisonment after a sentence had been validly pronounced and executed.



Key Phrases Order nunc pro tunc. Negligent child abuse. Valid sentences. Misdemeanor cases. Sentencing order.

Reversed and remanded.