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Evans v. Frakes

Supreme Court of Nebraska

April 1, 2016

THOMAS EVANS, APPELLANT,
v.
SCOTT R. FRAKES, DIRECTOR, NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, ET AL., APPELLEES

Page 627

[Copyrighted Material Omitted]

Page 628

Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.

Gerald L. Soucie for appellant.

Douglas J. Peterson, Attorney General, and George R. Love for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ.

OPINION

Page 629

[293 Neb. 254] Wright, J.

NATURE OF CASE

This is an appeal from the denial of a petition for a writ of habeas corpus. The petitioner, Thomas Evans, was found to be a habitual criminal and was sentenced to a mandatory minimum of from 10 to 15 years' imprisonment.

Evans was erroneously discharged before serving the required sentence. Upon discovery of the error, the State sought an arrest and commitment warrant for the return of Evans to the Nebraska Department of Correctional Services (Department).

The district court ordered Evans recommitted to serve the remainder of his sentence. Evans filed an amended petition for writ of habeas corpus, which was dismissed with prejudice. Evans appeals. We affirm.

[293 Neb. 255] BACKGROUND

Evans was convicted of burglary and determined to be a habitual criminal. His sentence carried a mandatory minimum of 10 years' imprisonment due to the habitual criminal enhancement.[1] He was sentenced to 10 to 15 years' imprisonment with 269 days' credit for time served.

On November 19, 2013, Evans was erroneously discharged by the Department prior to completing his lawful sentence. At the time of discharge, he had served the 10-year mandatory minimum sentence, but still had 2 1/2 years remaining before he would be eligible for mandatory discharge.

Upon discovery of the error in June 2014, the State sought an arrest and commitment warrant for the return of Evans to the Department to serve the remainder of his sentence. The State's motion was supported by the affidavit of Michael Kenney, the then director of the Department, which affidavit stated that the Department " erroneously released [Evans] from custody prior to his mandatory discharge date by erroneously deducting good time credit from [Evans'] mandatory minimum sentence." The district court issued an arrest and commitment warrant on June 26, 2014, and Evans was taken back into custody on June 29. He has since been paroled and is projected to be released from parole on May 19, 2016.

Evans petitioned for a writ of habeas corpus in the district court for Lancaster County, Nebraska, challenging the Department's continuing exercise of custody. During the hearing on the ...


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