Ballheim v. Settles

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
Trever Ballheim, appellant, v. Shaun Settles, warden,
Tecumseh State Correctional Institution, and Rob
Jeffreys, director, Nebraska Department
of Correctional Services, appellees.
___ N.W.3d ___
Filed May 2, 2025. 	No. S-24-673.
1. Habeas Corpus: Appeal and Error. Whether the allegations in an
application for a writ of habeas corpus are sufficient to warrant dis-
charge is a matter of law that an appellate court reviews de novo.
2. Habeas Corpus: Collateral Attack. An action for habeas corpus is a
collateral attack on a judgment of conviction.
3. Habeas Corpus: Prisoners. In the case of a prisoner held pursuant to
a judgment of conviction, habeas corpus is available as a remedy only
upon a showing that the judgment, sentence, and commitment are void.
4. Judgments: Collateral Attack. A judgment that is not void, even if
erroneous, cannot be collaterally attacked.
5. Habeas Corpus: Courts. Once an application for writ of habeas cor-
pus is filed, the next procedural step requires the court to determine,
sua sponte and based on the allegations of the application, if the writ
should issue.
6. ____: ____. If the application or petition for writ of habeas corpus sets
forth facts which, if true, would entitle the petitioner to discharge, then
the writ is a matter of right and the petitioner should be produced and
a hearing held thereon to determine the question of fact presented, after
which the court may either recommit, bail, or discharge the petitioner.
7. Habeas Corpus: Courts: Proof. If the application or petition for writ
of habeas corpus alleges mere conclusions of law, or if the facts alleged
in the application or petition do not show the petitioner is entitled to
the relief of habeas corpus, then the writ will be denied, for it would
be useless to go through the procedure of granting the writ and having
the party brought before the court merely to be remanded back to the
custody out of which he or she seeks to be discharged.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:16 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
8. Judgments. It is the general rule that a judgment is no longer open to
amendment, revision, modification, or correction after the term at which
it was rendered; however, that rule does not apply where the purpose is
to correct or amend clerical or formal errors so as to make the record
entry speak the truth and show the judgment which was actually ren-
dered by the court.
9. ____. A nunc pro tunc order operates to correct a clerical error or a
scrivener’s error, not to change or revise a judgment or order, or to set
aside a judgment actually rendered, or to render an order different from
the one actually rendered, even if such order was not the order intended.
10. ____. A nunc pro tunc order reflects now what was actually done before,
but was not accurately recorded.
11. ____. An order nunc pro tunc differs from an order substantively amend-
ing or vacating a court’s prior order.
12. ____. An order nunc pro tunc cannot be used to enlarge the judgment as
originally rendered or to change the rights fixed by it.
13. ____. An order nunc pro tunc cannot be employed where the fault in the
original judgment is that it is wrong as a matter of law, and it cannot be
employed to allow the court to review and reverse its action with respect
to what it formerly did or refused to do.
14. Criminal Law: Habitual Criminals. The habitual criminal statute is
not a criminal offense, but, rather, provides an enhancement of the pen-
alty for each count committed by one found to be a habitual criminal.
15. Habitual Criminals: Jurisdiction. There is no jurisdiction over the
offense of being a habitual criminal, because no such offense exists.
16. Habitual Criminals: Sentences. A separate sentence for the nonexistent
crime of being a habitual criminal is void.
17. ____: ____. A sentence for the underlying crime that was not enhanced
upon a finding of being a habitual criminal is merely erroneous.
18. Habeas Corpus: Sentences: Appeal and Error. Habeas is not a sword
against the petitioner imprisoned on a void sentence to gain resentencing
and correct an error on a fully served sentence that the petitioner is not
challenging and that the State failed to challenge in a direct appeal as
excessively lenient.
19. Habeas Corpus: Sentences. Permitting a greater punishment to fol-
low from a writ of habeas corpus when the petitioner has already fully
served an erroneously unenhanced sentence for the underlying crime
would result in multiple punishments for the same offense.
20. Double Jeopardy: Sentences. Where a defendant has a legitimate
expectation of finality, then an increase in his or her sentence in a sec-
ond proceeding violates the prohibition of the Double Jeopardy Clause
against multiple punishments for the same offense.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
Appeal from the District Court for Johnson County: Ricky
A. Schreiner, Judge. Reversed and remanded with directions.
Gerald L. Soucie for appellant.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellees.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Freudenberg, J.
INTRODUCTION
An inmate appeals from a district court’s denial, without
a hearing, of his petition for a writ of habeas corpus. The
attachments to the petition showed the original sentencing
order had imposed two different sentences on two different
charges—count 1, possession of a controlled substance (2 to 2
years’ imprisonment), and count 5, “[h]abitual criminal” (10 to
11 years’ imprisonment). The convictions and sentences were
not appealed. After the end of the court’s term and more than
6 months after the judgment, the district court entered an order
nunc pro tunc changing the judgment to impose one sentence
of 10 to 11 years’ imprisonment on a singular conviction of
possession of a controlled substance. The inmate alleges he
has served his sentence of 2 to 2 year’s imprisonment origi-
nally imposed on the possession conviction. We agree with
the inmate that the district court’s order nunc pro tunc chang-
ing the minimum sentence for the possession conviction to 10
to 11 years’ imprisonment is a nullity and that the judgment
sentencing him to the nonexistent crime of being a habitual
criminal is void. Therefore, the inmate alleged sufficient facts
to warrant issuance of a writ and a hearing on his petition. We
reverse the order of the district court and remand the cause
with directions.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
BACKGROUND
According to the allegations of and attachments to his peti-
tion for a writ of habeas corpus, Trever Ballheim was convicted
in the Scotts Bluff County District Court, pursuant to a plea
agreement, of possession of a controlled substance, a Class IV
felony, and of being a habitual criminal. He was sentenced on
December 6, 2019.
Original Written Sentencing Order
A written order attached to the petition for a writ of
habeas corpus states that Ballheim was originally sentenced
on December 6, 2019, with two different sentences on two
different convictions—possession of a controlled substance
and “[h]abitual criminal.” Under a section of the order titled
“Enhancement,” the court stated: “Count [5] is found to have
[two] valid and useable prior convictions and [Ballheim] will
be sentenced as a habitual criminal.” The order then described
the sentence as follows:
SENTENCE: IT IS THE JUDGMENT AND SEN-
TENCE OF THE COURT that [Ballheim] is sentenced:
On Count No.: 1
. . . to imprisonment and committed to an institution
under the jurisdiction of the Nebraska Department of
Correctional Services for a period of not less than 2 years,
nor more than 2 years, with 120 days credit for time
served before sentencing[.]
On Count No.: 5
. . . to imprisonment and committed to an institu-
tion under the jurisdiction of the Nebraska Department
of Correctional Services for a period of not less than
MANDATORY MINIMUM 10 years, nor more than
11 years, with 120 days credit for time served before
sentencing,
. . . to pay court costs of $137.00 to the clerk of this
court,
. . . sentence is concurrent to Count 1.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
Oral Pronouncement
The court’s oral pronouncement, as reflected in the judge’s
notes attached to the petition, was similar:
[Ballheim] is sentenced on Count 1 to imprisonment
and committed to an institution under the jurisdiction of
the Nebraska Department of Correctional Services for a
period of not less than 2 years, nor more than 2 years,
with 120 days credit for time served before sentencing;
on Count 5 sentenced to imprisonment and committed
to an institution under the jurisdiction of the Nebraska
Department of Correctional Services for a period of not
less than 10 years, nor more than 11 years, with 120
days credit for time served before sentencing. Count 5
has a mandatory minimum of 10 years. Costs taxed to
[Ballheim].
Nunc Pro Tunc
No direct appeal was filed. According to the petition for
a writ of habeas corpus, the district court granted the State’s
motion for nunc pro tunc, which was filed on August 3, 2020,
almost 8 months after the district court’s judgment was entered
on December 6, 2019, and after the end of the term. 1
The State asserted in the motion for nunc pro tunc that the
sentence of 2 to 2 years’ imprisonment for possession of a con-
trolled substance was void because, once found to be a habitual
criminal, Ballheim was sentenced to a mandatory minimum
sentence of 10 years’ imprisonment.
The signed journal entry on sentencing nunc pro tunc was
attached to the petition for a writ of habeas corpus. It is dated
August 4, 2020, and set forth, as in the original order, that
the “charge[s] sentenced on” were count 1, possession of a
controlled substance, and count 5, “[h]abitual criminal.” It
also set forth, similarly to the original order, that “Count 5
is found to have [two] valid and useable prior convictions
1 See Rules of Dist. Ct. of 12th Jud. Dist. 12-0 (rev. 2010).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
and [Ballheim] will be sentenced as a habitual criminal on
Count 1.” The order then stated the sentence, describing only
count 1:
SENTENCE: IT IS THE JUDGMENT AND SEN-
TENCE OF THE COURT that [Ballheim] is sentenced:
On Count No.: 1
To imprisonment and committed to an institution under
the jurisdiction of the Nebraska Department of Correctional
Services for a period of not less than MANDATORY
MINIMUM ten years, nor more than 11 years, with 120
days credit for time served before sentencing,
To pay court costs of $137.00 to the clerk of this court.
Under a section of the order titled “Other,” the court stated:
“Count 1 includes a mandatory minimum of 10 years.”
Ballheim alleged in his petition he was not present at the
hearing on the State’s motion for nunc pro tunc, but he was
represented by counsel. Ballheim alleged he was not aware of
the hearing until September 3, 2020. He did not appeal.
Ballheim alleged in his petition that, with good time credit,
he completed his originally imposed sentence on the posses-
sion charge in September 2020. Without good time credit, he
alleged he completed that sentence in September 2021.
Petition for Writ of Habeas Corpus
Ballheim asserted in his petition for a writ of habeas corpus
that the second sentence, pursuant to the motion for nunc pro
tunc, was a nullity because Ballheim was not present at the
motion hearing and that the court did more than simply correct
a clerical error.
Ballheim conceded an appellate court would have likely
recognized the first sentence was plain error and remanded
the cause for resentencing, if the sentence had been directly
appealed. But the sentence had not been appealed and, there-
fore, was not subject to revision. Ballheim asserted the sentence
of 2 to 2 years’ imprisonment for the possession conviction
was the only valid sentence imposed, and it had been served.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
The district court, sua sponte and without a hearing, dis-
missed the petition for a writ of habeas corpus. In so doing,
it cited to Childs v. Frakes 2 for the proposition that a writ
of habeas corpus will not lie to discharge a person from a
sentence of penal servitude where the court imposing the
sentence had jurisdiction of the offense and the person of the
defendant, and the sentence was within the power of the court
to impose.
ASSIGNMENTS OF ERROR
On appeal from the court’s dismissal, Ballheim assigns that
the district court erred as a matter of law in dismissing the peti-
tion on the grounds that he had not shown habeas corpus relief
was appropriate, citing solely to Childs, and in failing to issue
the writ so the State could then show cause why he should
not be released, in violation of Neb. Rev. Stat. § 29-2801 et
seq. (Reissue 2016 & Cum. Supp. 2024), Meyer v. Frakes, 3
Kuwitzky v. O’Grady, 4 Gamron v. Jones, 5 In re Jones, 6 and
their progeny.
STANDARD OF REVIEW
[1] Whether the allegations in an application for a writ of
habeas corpus are sufficient to warrant discharge is a matter
of law that an appellate court reviews de novo. 7
ANALYSIS
[2-4] Under Nebraska law, an action for habeas corpus is
a collateral attack on a judgment of conviction. 8 A collateral
attack on a judgment is where the judgment is attacked in a
2 Childs v. Frakes, 312 Neb. 925, 981 N.W.2d 598 (2022).
3 Meyer v. Frakes, 294 Neb. 668, 884 N.W.2d 131 (2016).
4 Kuwitzky v. O’Grady, 135 Neb. 466, 282 N.W. 396 (1938).
5 Gamron v. Jones, 148 Neb. 645, 28 N.W.2d 403 (1947).
6 In re Jones, 35 Neb. 499, 53 N.W. 468 (1892).
7 Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018).
8 Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
way other than a proceeding in the original action to have it
vacated, reversed, or modified, or a proceeding in equity to
prevent its enforcement. 9 In the case of a prisoner held pursu-
ant to a judgment of conviction, habeas corpus is available as
a remedy only upon a showing that the judgment, sentence,
and commitment are void. 10 The writ will not lie upon the
ground of mere errors and irregularities in the judgment or
sentence rendering it not void, but only voidable. 11 Stated dif-
ferently, a judgment that is not void, even if erroneous, cannot
be collaterally attacked. 12
[5,6] The procedure for habeas corpus is set forth in
§§ 29-2801 to 29-2824. Once an application for writ of habeas
corpus is filed, the next procedural step requires the court
to determine, sua sponte and based on the allegations of the
application, if the writ should issue. 13 If the application or
petition for writ of habeas corpus sets forth facts which, if
true, would entitle the petitioner to discharge, then the writ
is a matter of right and the petitioner should be produced
and a hearing held thereon to determine the question of fact
presented, 14 after which the court may either recommit, bail,
or discharge the petitioner. 15
[7] If, on the other hand, the application or petition for
writ of habeas corpus alleges mere conclusions of law, or if
the facts alleged in the application or petition do not show
the petitioner is entitled to the relief of habeas corpus, then the
writ will be denied, for it would be useless to go through the
procedure of granting the writ and having the party brought
9 Id.
10 Id.
11 Childs v. Frakes, supra note 2.
12 Id.
13 Id. See, also, § 29-2801.
14 Childs v. Frakes, supra note 2. See, also, §§ 29-2802 to 29-2806.
15 See § 29-2805.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
before the court merely to be remanded back to the custody out
of which he or she seeks to be discharged. 16
The district court relied on Childs v. Frakes 17 in support
of its decision to deny the writ without a hearing and dismiss
Ballheim’s petition. In Childs, we held that the district court
did not err in dismissing the petition for writ of habeas cor-
pus without a hearing because none of the allegations would
render the judgment, sentence, and commitment void. The
allegations in Childs were that the inmate was denied counsel
of his choice, his plea was not intelligently entered because
he received ineffective assistance of counsel, the prosecutor
recited the factual basis of the plea without personal knowl-
edge thereof, and the inmate was compelled to participate
in a presentence investigation without a knowing and intel-
ligent waiver of his right to remain silent. We said that a
writ of habeas corpus will not lie to discharge a person from
a sentence of penal servitude where the court imposing the
sentence had jurisdiction of the offense and the person of the
defendant, and the sentence was within the power of the court
to impose. 18
The allegations in Childs are vastly different from those pre-
sented in Ballheim’s petition. By setting forth that he is being
held under a sentence imposed for a nonexistent crime of being
a habitual criminal, Ballheim’s petition for writ of habeas
corpus sets forth facts which, if true, render the judgment,
sentence, and commitment void. A trial court lacks jurisdiction
over a nonexistent offense, and it is not within the power of a
court to impose a sentence for a nonexistent crime. 19
[8] First, as the State appears to concede, the order nunc
pro tunc that was entered more than 6 months after the origi-
nal sentencing order and changed the sentence on Ballheim’s
16 Childs v. Frakes, supra note 2. See, also, § 29-2801.
17 See Childs v. Frakes, supra note 2.
18 Id.
19 See Meyer v. Frakes, supra note 3.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
conviction of possession of a controlled substance is void. It is
the general rule that a judgment is no longer open to amend-
ment, revision, modification, or correction after the term at
which it was rendered; however, that rule does not apply where
the purpose is to correct or amend clerical or formal errors so
as to make the record entry speak the truth and show the judg-
ment which was actually rendered by the court. 20
Neb. Rev. Stat. § 25-2001 (Reissue 2016) gives the district
courts power to vacate or modify their judgments or orders
as follows:
(1) The inherent power of a district court to vacate
or modify its judgments or orders during term may also
be exercised after the end of the term, upon the same
grounds, upon a motion filed within six months after the
entry of the judgment or order.
(2) The power of a district court under its equity juris-
diction to set aside a judgment or an order as an equitable
remedy is not limited by this section.
(3) Clerical mistakes in judgments, orders, or other
parts of the record and errors therein arising from over-
sight or omission may be corrected by the court by an
order nunc pro tunc at any time on the court’s initiative or
on the motion of any party and after such notice, if any, as
the court orders. During the pendency of an appeal, such
mistakes may be so corrected before the case is submitted
for decision in the appellate court, and thereafter while
the appeal is pending may be so corrected with leave of
the appellate court.
(4) A district court may vacate or modify its own judg-
ments or orders after the term at which such judgments
or orders were made (a) for mistake, neglect, or omission
of the clerk, or irregularity in obtaining a judgment or
order; (b) for fraud practiced by the successful party in
obtaining the judgment or order; (c) for newly discovered
20 See State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).

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Nebraska Supreme Court Advance Sheets
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BALLHEIM v. SETTLES
Cite as 318 Neb. 873
material evidence which could neither have been discov-
ered with reasonable diligence before trial nor have been
discovered with reasonable diligence in time to move
for a new trial; (d) for erroneous proceedings against
an infant or person of unsound mind if the condition of
such defendant does not appear in the record of the pro-
ceedings; (e) for the death of one of the parties before
the judgment in the action; (f) for unavoidable casualty
or misfortune, preventing the party from prosecuting or
defending; and (g) for taking judgments upon warrants of
attorney for more than was due to the plaintiff when the
defendant was not summoned or otherwise legally noti-
fied of the time and place of taking such judgment.
[9,10] A nunc pro tunc order operates to correct a clerical
error or a scrivener’s error, not to change or revise a judgment
or order, or to set aside a judgment actually rendered, or to
render an order different from the one actually rendered, even
if such order was not the order intended. 21 The term “nunc pro
tunc” is a Latin phrase that means “now for then.” 22 A nunc
pro tunc order reflects now what was actually done before, but
was not accurately recorded. 23
[11-13] An order nunc pro tunc differs from an order sub-
stantively amending or vacating a court’s prior order. 24 An
order nunc pro tunc cannot be used to enlarge the judgment
as originally rendered or to change the rights fixed by it. 25 An
order nunc pro tunc cannot be employed where the fault in the
original judgment is that it is wrong as a matter of law, and it
cannot be employed to allow the court to review and reverse
21 Bevard v. Kelly, 15 Neb. App. 960, 739 N.W.2d 243 (2007). See State v.
Sims, supra note 20.
22 In re Interest of Luz P. et al., 295 Neb. 814, 825, 891 N.W.2d 651, 660
(2017) (internal quotation marks omitted).
23 Id.
24 Id.
25 In re Interest of Luz P. et al., supra note 22.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
BALLHEIM v. SETTLES
Cite as 318 Neb. 873
its action with respect to what it formerly did or refused
to do. 26
By changing the minimum sentence imposed for the crime,
the district court enlarged the judgment that was originally
rendered. It did not correct or amend clerical or formal errors
to make the record entry show the judgment that was actu-
ally rendered. Also concerning is Ballheim’s allegation that he
was not given notice of the hearing. Regardless, because the
order nunc pro tunc was not authorized by the court’s inherent
authority or § 25-2001, it is void. 27
This leaves the judgment of December 6, 2019, which sen-
tenced Ballheim concurrently to 2 to 2 years’ imprisonment
for possession of a controlled substance (already served) and
10 to 11 years’ imprisonment for being a habitual criminal.
In several cases, including Meyer v. Frakes, 28 we have held
that a trial court’s concurrent sentence of 10 years for a sepa-
rate count of being a habitual criminal was void; accordingly,
where the inmate had fully served the unenhanced sentence
imposed separately for the underlying crime, the inmate was
being unlawfully held on a void sentence for being a habitual
criminal and was entitled to habeas relief.
[14-16] As we have explained, the habitual criminal statute
is not a criminal offense, but, rather, provides an enhancement
of the penalty for each count committed by one found to be
a habitual criminal. 29 We said in Meyer, “Habitual criminal-
ity is a state, not a crime. There is no such offense as being
a habitual criminal.” 30 Thus, there is “no jurisdiction over the
26 See id.
27 See, Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d
1 (2008); Hargleroad Bulk Carriers, Inc. v. Ruan Transp. Corp., 173 Neb.
151, 112 N.W.2d 743 (1962); O’Grady v. Volcheck, 148 Neb. 431, 27
N.W.2d 689 (1947).
28 Meyer v. Frakes, supra note 3. See, also, Kuwitzky v. O’Grady, supra
note 4.
29 See, Meyer v. Frakes, supra note 3; Kuwitzky v. O’Grady, supra note 4.
30 Meyer v. Frakes, supra note 3, 294 Neb. at 674, 884 N.W.2d at 136-37.

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BALLHEIM v. SETTLES
Cite as 318 Neb. 873
offense of being a habitual criminal, because no such offense
exists.” 31 A separate sentence for the nonexistent crime of
being a habitual criminal is void. 32
We have thereby rejected any theory that the petitioner
could continue to be lawfully detained by virtue of the fact that
there was a finding that the petitioner was a habitual criminal
and the underlying sentence failed to impose the mandatory
minimum required by the habitual criminal statute. 33 We have
also repeatedly rejected the theory that a habitual criminal
sentence and an unenhanced sentence for the underlying crime
should be construed as but one sentence. 34
[17] Finally, we have rejected the contention that the peti-
tioner was not being unlawfully detained because the sentence
for the underlying crime should have been as a habitual crimi-
nal enhancement. 35 This is because a sentence for the under-
lying crime that was not enhanced upon a finding of being
a habitual criminal is merely erroneous. Such a sentence is
facially lawful and not void, so long as the sentence for the
underlying crime complies with the statutory sentencing range
for that underlying crime without a habitual criminal enhance-
ment. For instance, in Meyer, the unenhanced sentence of 2
to 4 years’ imprisonment for burglary was a facially lawful
sentence because it complied with the statutory confines for a
conviction of burglary, and the sentencing court had jurisdic-
tion over the petitioner and over the crime of burglary.
[18] Further, as we explained in Meyer, failing to grant
habeas relief for an inmate who has served the unenhanced
sentence for the underlying crime but not the sentence to
the separate, nonexistent crime of being a habitual criminal
“would run afoul of principles of double jeopardy and the
31 Id. at 682, 884 N.W.2d at 142.
32 Meyer v. Frakes, supra note 3.
33 See id.
34 See id.
35 See id.

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BALLHEIM v. SETTLES
Cite as 318 Neb. 873
fundamental scope of Nebraska’s habeas relief as a means
of redress for the unlawfully detained.” 36 Habeas relief is a
special civil proceeding that provides a summary remedy to
persons illegally detained; it does not contemplate a coun-
terclaim by the State to obtain greater punishment. Habeas
is not “a sword against the petitioner imprisoned on a void
sentence to gain resentencing and correct an error on a fully
served sentence that the petitioner is not challenging and that
the State failed to challenge in a direct appeal as excessively
lenient.” 37
[19,20] Permitting a greater punishment to follow from a
writ of habeas corpus when the petitioner has already fully
served an erroneously unenhanced sentence for the underly-
ing crime would result in multiple punishments for the same
offense. 38 Where a defendant has a legitimate expectation of
finality, then an increase in his or her sentence in a second
proceeding violates the prohibition of the Double Jeopardy
Clause against multiple punishments for the same offense. 39 A
defendant may acquire a legitimate expectation of finality in
an erroneous sentence if the sentence has been substantially
or fully served, unless the defendant was on notice that the
sentence might be modified. 40 The expectation of finality for
purposes of the Double Jeopardy Clause includes knowledge
of the State’s ability to file a direct appeal and, thus, does not
prevent a remand for resentencing in a direct appeal challeng-
ing the void sentence for one’s being a habitual criminal. 41
But a defendant who has substantially or fully served a sen-
tence that was not erroneously enhanced under the habitual
criminal statute, see Neb. Rev. Stat. § 29-2221 (Cum. Supp.
36 Id. at 680, 884 N.W.2d at 140.
37 Id. at 680, 884 N.W.2d at 140-41.
38 See Meyer v. Frakes, supra note 3.
39 Id.
40 Id.
41 See id.

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BALLHEIM v. SETTLES
Cite as 318 Neb. 873
2024), and has long since been final, acquires a legitimate
expectation of finality therein. 42
Under Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2018), the
maximum sentence for a Class IV felony is 2 years’ imprison-
ment and 12 months’ post-release supervision, or a $10,000
fine, or both. There is no minimum sentence. Ballheim’s sen-
tence of 2 to 2 years’ imprisonment for possession of a con-
trolled substance complied with the statutory sentencing range
for that crime. Ballheim alleges that he has fully served this
sentence. Under the principles discussed above, the conviction
and sentence for the nonexistent crime of being a habitual
criminal is void and Ballheim had a legitimate expectation of
the finality of his sentence of 2 to 2 years’ imprisonment for
possession of a controlled substance.
Relying on State v. Davis, 43 however, the State suggests
Ballheim’s minimum sentence for possession of a controlled
substance automatically defaulted to the mandatory minimum
applicable under § 29-2221, if enhanced under the habitual
criminal statute. Thus, the State argues that, albeit for different
reasons than those expressed by the district court, its decision
to deny the writ of habeas corpus was correct. The State does
not address double jeopardy.
We find that the State’s argument relying on Davis lacks
merit. In Davis, we vacated the district court’s resentencing
order following remand under an order in a postconviction
action that vacated the defendant’s sentence of 20 to 20 years’
imprisonment for first degree arson. The postconviction court
had vacated the sentence on the grounds that the minimum
term was not less than the maximum term, as required by
Neb. Rev. Stat. § 29-2204(1)(a) (Cum. Supp. 2024). Section
29-2204(1)(a) and (b), as amended by 2015 Neb. Laws, L.B.
605, § 60, provides:
42 See id.
43 State v. Davis, 317 Neb. 59, 8 N.W.3d 247 (2024).

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(1) Except when a term of life imprisonment is required
by law, in imposing a sentence upon an offender for any
class of felony other than a Class III, IIIA, or IV felony,
the court shall fix the minimum and the maximum terms
of the sentence to be served within the limits provided
by law. The maximum term shall not be greater than the
maximum limit provided by law, and:
(a) The minimum term fixed by the court shall be any
term of years less than the maximum term imposed by the
court; or
(b) The minimum term shall be the minimum limit
provided by law.
We held that the sentence of 20 to 20 years’ imprison-
ment was not void. Therefore, it could not be collaterally
attacked through the motion for postconviction relief, and the
district court lacked the power to resentence the defendant.
We explained that since § 29-2204(1)(b) dictates that “[t]he
minimum term shall be the minimum limit provided by law,”
and, under § 28-105(1), the minimum sentence for a Class II
felony is 1 year’s imprisonment, the minimum sentence for the
defendant’s arson conviction was 1 year. Because the initial
sentence was not void, the trial court could not modify, amend,
or revise it in any way, either during or after the term or session
of court at which the sentence was imposed. 44 Furthermore,
matters relating to sentences imposed within statutory limits
are not a basis for postconviction relief. 45
We then applied to the merely erroneous sentence for arson
the law governing a sentencing court’s silence as to the
minimum term of incarceration, which holds that if a mini-
mum term is not set forth, an indeterminate sentence will be
imposed by operation of law. We expanded the application of
this case law to instances when a sentencing court imposes an
indeterminate sentence with a minimum term that is the same
44 See id.
45 Id.

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as the maximum term and is thus contrary to § 29-2204(1)(a).
We said that in both the situation where the minimum term has
not been set forth and where the minimum fails to comply with
§ 29-2204(1)(a), the minimum sentence should default to the
minimum provided by law, by operation of law. 46
As explained in our recent opinion in State v. Jones, 47 in
Davis, we “carve[d] out an answer to fit” 48 “a sentencing
challenge in a peculiar procedural posture.” 49 “Our holding
was intended to be limited to the unique circumstances of
Davis.” 50 We expressly limited our holding in Davis to “what
should be a rare confluence of events,” namely (1) the pro-
nouncement and written confirmation of an invalid minimum
term under § 29-2204(1) is not raised to the sentencing court
or to an appellate court, or otherwise addressed before the
sentence becomes final; (2) a postconviction court errone-
ously finds the sentence to be void; (3) no appeal is taken
from that erroneous finding; and (4) the postconviction court
then purports to impose a new sentence. 51 The facts here pre-
sented are not like the “rare confluence of events” in Davis.
Ballheim’s petition for writ of habeas corpus sets forth
facts that, if true, would entitle him to discharge. The district
court erred by failing to issue the writ for habeas corpus and
conduct a hearing to determine if Ballheim should be dis-
charged from custody.
We reverse the order and remand the cause with directions
for the court forthwith to issue the writ and hold a hear-
ing as described by § 29-2805. As set forth in § 29-2806,
if the court, upon a hearing, is “satisfied that the person is
46 See id.
47 State v. Jones, ante p. 840, ___ N.W.3d ___ (2025).
48 Id. at 850, ___ N.W.3d at ___.
49 Id. at 849, ___ N.W.3d at ___.
50 Id. at 850, ___ N.W.3d at ___.
51 Id.

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unlawfully imprisoned or detained, he shall forthwith dis-
charge such prisoner from confinement.”
CONCLUSION
For the foregoing reasons, we reverse the district court’s
denial of the writ of habeas corpus and its dismissal of
Ballheim’s petition. We remand the cause with directions
to issue the writ and proceed as mandated by §§ 29-2801
to 29-2824.
Reversed and remanded with directions.