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State v. Jackson

Supreme Court of Nebraska

October 2, 2015

STATE OF NEBRASKA, APPELLEE,
v.
KENA G. JACKSON, APPELLANT

Page 134

Appeal from the District Court for Lancaster County: JODI NELSON, Judge.

Jerry L. Soucie for appellant.

Jon Bruning, Attorney General, and James D. Smith for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. STEPHAN, J., not participating in the decision.

OPINION

Page 135

[291 Neb. 909] McCormack, J.

NATURE OF CASE

A parolee appeals from the district court's arrest and commitment warrant that was issued ex parte after the Nebraska Department of Correctional Services (the Department) alerted the court that it had erroneously discharged him before his mandatory release date. The parolee attacks the subject matter jurisdiction of the district court to issue the order for an arrest and commitment warrant. Alternatively, the parolee asserts that the lack of notice and a hearing violated procedural due process and his right to counsel. We dismiss the appeal for lack of a final, appealable order.

BACKGROUND

Kena G. Jackson was convicted of possession of a controlled substance with enhancement pursuant to the habitual [291 Neb. 910] criminal statute.[1] On June 9, 2004, Jackson was sentenced by the district court to 10 to 15 years' imprisonment, with 196 days credit for time served.

The Department erroneously discharged Jackson from custody on November 11, 2013. With the 196 days' credit, Jackson had served only 3,650 days at the time of his discharge. This would correspond to his 10-year mandatory minimum sentence under the habitual criminal statutes. However, Jackson's discharge date should have been calculated upon serving 12 1/2 years of his sentence.[2] Jackson's parole eligibility date was calculated upon serving 10 years of his sentence.[3]

On June 26, 2014, the State filed a motion in the district court, under the same

Page 136

docket number as the original conviction and sentence, asking that the court issue a warrant for Jackson's arrest and commitment, so that he could serve the remainder of the June 9, 2004, sentence. The State filed an accompanying affidavit in which the director of the Department averred that by deducting good time credit from Jackson's mandatory minimum sentence, the Department had erroneously released Jackson before his mandatory discharge date. Thus, at the time Jackson was erroneously released, he still had 2 years 6 months to serve on his sentence before mandatory discharge. Jackson was not notified of the State's motion, and no hearing was held on the motion.

The court issued an order on June 26, 2014, finding that Jackson had not served the entirety of his sentence and that he had been prematurely and erroneously released. The court ordered that an arrest and commitment warrant be issued. The court concurrently issued the arrest and commitment warrant. Upon his return to custody, the Department released Jackson on parole. The Department has indicated that other similarly [291 Neb. ...


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