State v. Leatherwood

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LEATHERWOOD
Cite as 320 Neb. 242
State of Nebraska, appellee, v. Jason M.
Leatherwood, appellant.
___ N.W.3d ___
Filed October 31, 2025. 	No. S-24-919.
1. Sentences: Appeal and Error. Whether a defendant is entitled to credit
for time served and in what amount are questions of law, subject to
appellate review independent of the lower court.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the
lower court.
3. Sentences: Statutes. The calculation and application of credit for time
served is controlled by statute, and different statutes govern depending
on whether the defendant is sentenced to jail or prison.
4. Sentences. Due to the mandatory “shall” language used in Neb. Rev.
Stat. § 83-1,106(1) (Cum. Supp. 2024), 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.
5. Sentences: Records. The amount of credit for time served to which a
defendant is entitled is an absolute and objective number that is estab-
lished by the record, and courts have no discretion to grant a defendant
more or less credit than is established by the record.
6. Sentences: Records: Appeal and Error. When a trial court gives a
defendant more or less credit for time served than he or she is entitled
to, that portion of the pronouncement of sentence is erroneous and may
be corrected to reflect the accurate amount of credit as verified objec-
tively by the record.
7. Sentences: Records: Proof. The party advocating for a specific jail
credit calculation has the burden to provide the sentencing court with a
record that establishes such calculation.
8. Foreign Judgments: Sentences: Time. Because credit under Neb.
Rev. Stat. § 83-1,106(1) (Cum. Supp. 2024) can only be given once,
an offender who is in custody as a result of a Nebraska charge, but
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 01:00 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LEATHERWOOD
Cite as 320 Neb. 242
who is also in custody serving an unrelated sentence, is not entitled
to credit under § 83-1,106(1) for time that has been credited toward
the sentence.
Appeal from the District Court for Lancaster County: Jodi
L. Nelson, Judge. Affirmed.
Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for
appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Funke, C.J.
INTRODUCTION
The only matter for review and decision in this case is
whether, under a writ of habeas corpus ad prosequendum, a
prisoner who is “borrowed” from federal custody for purposes
of prosecution and sentencing in the prisoner’s state case is
entitled to receive credit on the state charges for the time
during which he or she is borrowed from federal custody.
We determine that, under such circumstances, it is the charge
associated with the primary jurisdiction holder that receives
credit and not the charge associated with the borrowing juris-
diction. Accordingly, we affirm the order of the district court
in this case.
BACKGROUND
Prior to the events leading to this case, Jason M. Leatherwood
was on federal supervised release for a previous crime. He had,
however, absconded from supervised release, and a federal
warrant was issued for his arrest. When Leatherwood was
located in Lincoln, Nebraska, he was arrested on the federal
warrant. During Leatherwood’s arrest, officers located drugs
and drug paraphernalia. A subsequent search of Leatherwood’s

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320 Nebraska Reports
STATE v. LEATHERWOOD
Cite as 320 Neb. 242
vehicle uncovered additional drugs. As a result, Leatherwood
was charged with one count of possession of a controlled sub-
stance with the intent to deliver.
Custody Transfers
Immediately 	following 	his 	arrest, 	Leatherwood 	was
lodged at the Lancaster County jail. On September 19, 2022,
Leatherwood was “[r]eleased to [an] outside agency” and trans-
ferred to another jail under federal custody. On November 14,
Leatherwood was charged with the state drug-related offense,
and an arrest warrant was issued shortly thereafter. Because
Leatherwood was already in federal custody, the State sub-
sequently filed an application for a writ of habeas corpus ad
prosequendum on January 20, 2023, requesting temporary
physical custody of Leatherwood from the federal government
so that he could be prosecuted for his state charge. That same
day, the writ was issued by a judge of the Lancaster County
Court, directing that Leatherwood be transported accordingly.
As such, Leatherwood was transported to, and held in, the
Lancaster County jail from February 15, 2023, until he was
sentenced in his state case on November 14, 2024, which
totaled 638 days.
Sentencing in State Case
Prior to sentencing, counsel for Leatherwood sent a letter
to the district court explaining that Leatherwood was also fac-
ing federal charges for violating his supervised release and
that he was currently being borrowed from federal custody.
Counsel admitted that he did not know whether Leatherwood’s
time served was applicable to his state or federal claims.
Attached to counsel’s letter were several email communica-
tions between the U.S. Marshals Service, an assistant federal
public defender, and Leatherwood’s state defense counsel. The
emails reflected uncertainty as to whether Leatherwood was in
state or federal custody and whether his time served should be
applied to his state or federal case.

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Nebraska Supreme Court Advance Sheets
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STATE v. LEATHERWOOD
Cite as 320 Neb. 242
At sentencing, the district court acknowledged receipt of
counsel’s letter and noted that it would be incorporated into
the presentence investigation report. Defense counsel requested
that Leatherwood receive credit for time served. However,
because neither counsel nor the district court could confidently
determine a basis for such an award to be made, the court
opted not to grant any credit for time served. In making this
decision, the court, referring to the presentence investigation
report, stated, “[O]ur jail says that . . . Leatherwood has been
borrowed from the federal system, and claims there is no credit
to . . . Leatherwood. I don’t have anything else that tells me
that he has credit that is attributable exclusively to this case
that I can use.”
Leatherwood was ultimately sentenced in state court to a
term of 12 to 15 years’ imprisonment. No credit for time served
was awarded. Leatherwood’s sentence was ordered to run con-
secutively to any other sentences being served.
Leatherwood 	appealed, 	and 	we 	moved 	the 	matter 	to
our docket. 1
ASSIGNMENT OF ERROR
Leatherwood assigns that the district court erred in failing
to give him credit for the 638 days he served in the Lancaster
County jail.
STANDARD OF REVIEW
[1] Whether a defendant is entitled to credit for time served
and in what amount are questions of law, subject to appellate
review independent of the lower court. 2
[2] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court. 3
1 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
2 State v. Nelson, 318 Neb. 484, 16 N.W.3d 883 (2025).
3 Id.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LEATHERWOOD
Cite as 320 Neb. 242
ANALYSIS
Judicial Notice
We first address a request for judicial notice. Specifically,
the State requests that we take judicial notice of the proceed-
ings in Leatherwood’s federal case following his sentencing
in the state case. The State indicates that “Leatherwood’s
pending federal matter was put on hold until after resolu-
tion of his state case,” 4 but that following the imposition of
the state sentence, Leatherwood was sentenced in his federal
case, as well. The State further claims that because credit for
time served was not awarded on the state charges, the federal
court awarded the credit at the time of its sentencing. Based
on this information, the State contends that although the issue
of whether Leatherwood should receive credit in his state case
may, at one point, have been unclear, such uncertainty no
longer exists, because the later award of credit for time served
in the federal case means the same credit cannot be given in
the state case.
We see no need to take judicial notice of the federal pro-
ceedings because the law governing the issue in this case is
clear, and resolution is reached without taking such judicial
notice. Accordingly, we decline the State’s invitation.
Credit for Time Served
We now turn to address Leatherwood’s assertion that the
district court erred in declining to award him credit for time
served. Leatherwood argues that he should receive 638 days of
credit, which is the amount of time he spent in the Lancaster
County jail while being borrowed from federal authorities for
the purpose of awaiting trial on his state charges. The State
makes no argument on this point beyond its contention that
credit should not be awarded because it was, purportedly,
awarded in the later federal sentence.
4 Brief for appellee at 6.

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Nebraska Supreme Court Advance Sheets
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STATE v. LEATHERWOOD
Cite as 320 Neb. 242
The specific question at issue here is what impact a writ of
habeas corpus ad prosequendum has on our analysis of credit
for time served. “A writ of habeas corpus ad prosequendum is
a common-law writ issued by a court, ordering the immediate
removal of a prisoner from incarceration so that he [or she] can
be brought to another jurisdiction to stand trial on charges for
crimes committed within that jurisdiction.” 5
We 	last 	commented 	on 	this 	question 	in 	State 	v.
Castillo-Rodriguez. 6 There, the defendant was arrested and
charged with state crimes. Upon executing an appearance
bond, the defendant was released from custody and subse-
quently arrested by federal officials and placed in custody.
A writ of habeas corpus ad prosequendum was then issued
requesting that the state be allowed to borrow the defendant
for prosecution on the state charges. The parties disputed
whether the subsequent time served should be credited to the
state or federal proceedings.
In that case, however, a determination as to the significance
of the writ was not necessary for the resolution of the matter.
As such, we simply stated, “[t]his court has not yet addressed
the legal effect, if any, a writ of habeas corpus ad prosequen-
dum has on a defendant’s entitlement to . . . credit [and] this
case does not afford us a meaningful opportunity to explore
that question . . . .” 7
That opportunity, however, is now squarely before us, and
we take the occasion to address the matter. In doing so, we
determine that, because the federal authorities had primary
jurisdiction over Leatherwood, and because the State was
merely borrowing Leatherwood for purposes of prosecution
and sentencing, any credit for time served is attributable only
to his federal case.
5 State v. Williams, 253 Neb. 619, 626-27, 573 N.W.2d 106, 111 (1997).
6 State v. Castillo-Rodriguez, 313 Neb. 763, 986 N.W.2d 78 (2023).
7 Id. at 775, 986 N.W.2d at 86.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
STATE v. LEATHERWOOD
Cite as 320 Neb. 242
The principles upon which we rely are not of recent origin.
These are the principles traditionally guiding determinations
of credit for time served and the principles of comity, which
have previously been utilized in this jurisdiction, 8 as well as
in many others. We review them now.
[3–7] In Nebraska, the calculation and application of credit
for time served is controlled by statute, and different statutes
govern depending on whether the defendant is sentenced to jail
or prison. 9 For purposes of this case, the governing statute is
Neb. Rev. Stat. § 83-1,106(1) (Reissue 2024), which provides
as follows:
Credit against the maximum term and any minimum term
shall be given to an offender for time spent in custody
as a result of the criminal charge for which a prison sen-
tence is imposed or as a result of the conduct on which
such a charge is based. This shall specifically include,
but shall not be limited to, time spent in custody prior to
trial, during trial, pending sentence, pending the resolu-
tion 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.
Due to the mandatory “shall” language used in § 83-1,106(1),
the statute mandates that credit for time served must be given
for time spent in custody on a charge when a prison sen-
tence is imposed for a conviction of such charge. 10 We have
explained that under § 83-1,106, a court is required to award
all available presentence credit, but only once. 11 The amount
of credit for time served to which a defendant is entitled is
an absolute and objective number that is established by the
record, and courts have no discretion to grant a defendant
8 See Castillo-Rodriguez, supra note 6.
9 State v. Rivera-Meister, 318 Neb. 164, 14 N.W.3d 1 (2024).
10 Id.
11 See Nelson, supra note 2.

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Nebraska Supreme Court Advance Sheets
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STATE v. LEATHERWOOD
Cite as 320 Neb. 242
more or less credit than is established by the record. 12 When
a trial court gives a defendant more or less credit for time
served than he or she is entitled to, that portion of the pro-
nouncement of sentence is erroneous and may be corrected to
reflect the accurate amount of credit as verified objectively by
the record. 13 The party advocating for a specific jail credit cal-
culation has the burden to provide the sentencing court with a
record that establishes such calculation. 14
However, this calculation of time served shifts slightly when
the situation involves two different sovereigns. In one of its
leading cases on the matter, the U.S. Supreme Court explained
as much in Ponzi v. Fessenden, 15 saying:
We live in the jurisdiction of two sovereignties, each
having its own system of courts to declare and enforce
its laws in common territory. It would be impossible for
such courts to fulfil their respective functions without
embarrassing conflict unless rules were adopted by them
to avoid it. . . . The situation requires, therefore, not only
definite rules fixing the powers of the courts in cases of
jurisdiction over the same persons and things in actual lit-
igation, but also a spirit of reciprocal comity and mutual
assistance to promote due and orderly procedure.
We have before commented on the application of these
“rules” more specifically, saying that when separate sover-
eigns have jurisdiction over a person, the doctrine of pri-
mary jurisdiction allows the tribunal and sovereign that first
obtained jurisdiction to continue jurisdiction until the first
sovereign’s jurisdiction is exhausted. 16 We further stated that
the law of comity is such that the two sovereigns may decide
between themselves which shall have custody of a convicted
12 Id.
13 Id.
14 Rivera-Meister, supra note 9.
15 Ponzi v. Fessenden, 258 U.S. 254, 259, 42 S. Ct. 309, 66 L. Ed. 607 (1922).
16 State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988).

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Nebraska Supreme Court Advance Sheets
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STATE v. LEATHERWOOD
Cite as 320 Neb. 242
prisoner; however, the sovereign having prior jurisdiction
need not waive its right to custody. 17
Practically speaking, primary jurisdiction is acquired by
the sovereign who first obtains custody of or arrests the
individual, 18 and that sovereign typically maintains such juris-
diction, to the exclusion of all others, unless one of four events
occurs: “1) release on bail, 2) dismissal of charges, 3) parole,
or 4) expiration of sentence.” 19 Even without such an occur-
rence, however, it is possible for another sovereign to simulta-
neously pursue charges against that same individual. 20 One of
the ways to accomplish this is through a writ of habeas corpus
ad prosequendum, as was done in this case. 21 When a defendant
is transferred to another jurisdiction to face a charge, primary
jurisdiction is not lost, but, rather, the defendant is considered
to be “‘on loan’” to the other sovereign. 22 The same applies
between state and federal sovereigns. 23 While the individual
is on loan, the borrowing jurisdiction has the authority to
prosecute and sentence that individual, but any credit for time
served does not belong to that sentence. 24
[8] Section 83-1,106(1) explicitly mandates that credit for
time served be awarded only “as a result of the criminal
charge for which a prison sentence is imposed or as a result
of the conduct on which such a charge is based.” In explain-
ing this language in the context of a preexisting sentence,
we have stated that because credit under § 83-1,106(1) can
only be given once, an offender who is in custody as a result
17 Id.
18 See Ponzi, supra note 15. See, also, U.S. v. Cole, 416 F.3d 894 (8th Cir.
2005); In re Liberatore, 574 F.2d 78 (2d Cir. 1978).
19 Cole, supra note 18, 416 F.3d at 897.
20 See Ponzi, supra note 15.
21 State v. Castillo-Rodriguez, supra note 6.
22 Cole, supra note 18, 416 F.3d at 897.
23 Id.
24 See id.

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STATE v. LEATHERWOOD
Cite as 320 Neb. 242
of a Nebraska charge, but who is also in custody due to an
unrelated sentence, is not entitled to credit under § 83-1,106(1)
for time that has been credited toward the other sentence. 25 In
the same way, as it pertains to situations such as the one at
bar, credit for time served is unavailable when the presentence
incarceration is the result of a charge other than that for which
the individual is being sentenced. 26
Our case law involving similar factual situations is built on,
and reflects, these principles. For example, in State v. Leahy, 27
we determined that the defendant was not entitled to credit
for time served on his Nebraska sentence, even though he was
detained and awaiting trial in Nebraska, because he had been
borrowed from Colorado, where he was serving a separate
sentence. Specifically, we stated that “what matters in the
credit for time served analysis is not whether [the defendant]
was detained in Nebraska and awaiting trial and sentencing on
Nebraska charges, but, rather, whether he was forced to be in
custody because of those charges.” 28 In that case, because the
defendant was in custody for his Colorado sentence, we held
that it could not be said that he was in custody because of the
Nebraska charges. 29
In State v. Rivera-Meister, 30 however, we held that credit
for time served should have been awarded for the days the
defendant was in custody in Guatemala while awaiting extra-
dition to Nebraska, because there were no charges pending
against him in Guatemala. Accordingly, the defendant was in
custody only as a result of the Nebraska charges. 31
25 See Rivera-Meister, supra note 9.
26 See, Nelson, supra note 2; Rivera-Meister, supra note 9; State v. Leahy,
301 Neb. 228, 917 N.W.2d 895 (2018).
27 Leahy, supra note 26.
28 Id. at 235, 917 N.W.2d at 900-901.
29 Leahy, supra note 26.
30 Rivera-Meister, supra note 9.
31 Id.

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STATE v. LEATHERWOOD
Cite as 320 Neb. 242
Though the above cases are similar and comport with the
governing rules of comity and primary jurisdiction, cases from
other jurisdictions provide even better comparators.
For example, the Missouri Supreme Court addressed this
issue in Harkins v. Lauf. 32 In that case, the defendant had
been arrested on a state charge but released on bond. While
on bond, the defendant was arrested for a federal crime and
remained in custody. Under a writ of habeas corpus ad prose-
quendum, the state subsequently borrowed the defendant from
the federal authorities for purposes of prosecution and sen-
tencing. After sentencing in the state case, the defendant was
returned to federal custody, where he remained for 31 months.
After that time, the federal charges were dismissed, and the
defendant argued that the 31 months spent in federal custody
should be credited to his state sentence. The court disagreed.
Instead, it concluded that the time served could only have been
attributable to the federal charges, because the defendant was
in custody for the federal charges. In doing so, the court noted
that at the time the state sentence was imposed, the state did
not have exclusive control over or custody of the defendant,
because such primary jurisdiction belonged to the federal sys-
tem. The court also disregarded any arguments regarding the
fairness of the fact that there was no longer any federal sen-
tence to which the time served could be applied, saying such
arguments were unpersuasive since the “federal confinement
was not related to the same offense for which appellant was
sentenced in the state court.” 33
In yet another case, Sweeney v. State, 34 the Indiana Supreme
Court reached the same conclusion. There, the defendant was
arrested and charged in state court. After posting bond, he
was convicted of another crime and incarcerated in federal
prison. When, under a writ of habeas corpus ad prosequendum,
32 Harkins v. Lauf, 532 S.W.2d 459 (Mo. 1976).
33 Id. at 463.
34 Sweeney v. State, 704 N.E.2d 86 (Ind. 1998).

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STATE v. LEATHERWOOD
Cite as 320 Neb. 242
the defendant was tried and sentenced in the state case and
requested that the time he served in federal court be cred-
ited against his state case, the Indiana Supreme Court held
that such credit was not available because he was, in fact, in
custody because of the federal charges. As Indiana appellate
courts have explained in subsequent cases on the same issue,
a writ of habeas corpus ad prosequendum functions only as a
“‘transport order’” and not a basis upon which an individual
can accrue credit for time served. 35 Combined, the above
cases 36 stand for the proposition that, for purposes of calculat-
ing credit for time served, when a prisoner is borrowed from
another jurisdiction on a writ of habeas corpus ad prosequen-
dum, the time served should be credited to the sovereign with
primary jurisdiction, and not to the borrowing jurisdiction.
Applying those principles here, we cannot conclude that
Leatherwood was entitled to any credit for time served on
35 See Alvarez v. State, 147 N.E.3d 374, 376 (Ind. App. 2020).
36 See, Ruggliano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002), superseded
by statute as stated in Blood v. Bledsoe, 648 F.3d 203 (3d Cir. (2011)
(“[f]or the purposes of computing [the defendant’s] sentence . . . the time
spent in federal custody pursuant to a writ ad prosequendum is credited
toward his state sentence, not his federal sentence” (emphasis omitted));
Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir. 1992) (“[a] prisoner
is not even in custody for purposes of [calculating credit for time served]
when he appears in federal court pursuant to a writ ad prosequendum; he
is merely ‘on loan’ to federal authorities” (emphasis omitted)); State v.
Esposito, 2023 WL 1830386 (Ariz. App. Feb. 9, 2023) (defendant was not
entitled to credit for time served on state charges because federal charges
were but-for cause of defendant’s incarceration); In re Habeas Corpus of
Yoder, 298 P.2d 1083 (Okla. Crim. App. 1956) (court concluded defendant
was not wrongly returned to federal authorities after issuance of his state
sentence subject to writ of habeas corpus ad prosequendum, because writ
had not deprived federal authorities of jurisdiction and he was, therefore,
rightly returned immediately after imposition of his state sentence); Tucker
v. Beard, 2011 WL 10841269 at *2 (Pa. Commw. Jan. 4, 2011) (“[f]or the
purpose of calculating the prisoner’s sentence, the time spent in the receiv-
ing sovereign on a writ ad prosequendum is credited to the sentence of the
sending sovereign” (emphasis omitted)).

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STATE v. LEATHERWOOD
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his state charges. In this case, Leatherwood was arrested and
detained because of the outstanding federal warrant. He was
taken into custody based on that warrant, meaning the federal
system was the primary jurisdiction holder. Although a state
warrant was subsequently issued and a charge was filed for
Leatherwood based on the drug-related crime, none of those
events terminated the primary jurisdiction of the federal sys-
tem. Instead, as in the cases discussed above, the State filed
a writ of habeas corpus ad prosequendum, requesting that
it be permitted to borrow Leatherwood for purposes of his
state prosecution and sentencing. Upon receiving custody of
Leatherwood, the State became the borrowing jurisdiction,
empowered only with the limited purpose of prosecuting
and sentencing Leatherwood. As such, throughout the course
of his time in the Lancaster County jail, Leatherwood was
still in custody because of the federal charges and not the
state charges. The federal charges served as the basis for his
detention, and had the state charges been dismissed, it would
be the federal charges that would have ensured he remained
incarcerated. Accordingly, accrued credit is attributable only
to Leatherwood’s federal sentence.
In 	opposing 	this 	conclusion, 	Leatherwood 	points 	to
§ 83-1,106(4) and to our holding in State v. Mueller 37 to argue
that because there was not yet a sentence imposed in his fed-
eral case, the credit must be applied to the case at hand. In
making this argument, however, Leatherwood undervalues the
key differences between his case and Mueller.
In Mueller, we held that the defendant was entitled to
credit on his Nebraska sentence for 91 days of time served
in Wyoming. The first distinction between Mueller and the
present case, however, is that in Mueller, Nebraska had filed
a hold, or a detainer, on the prisoner to be effectuated once
Wyoming had exhausted its remedy. We have previously
37 State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018), modified on
denial of rehearing 302 Neb. 51, 921 N.W.2d 584 (2019).

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explained that a detainer is not equivalent to, and has a dif-
ferent legal effect from, a writ of habeas corpus ad prose-
quendum. 38 Second, in Mueller, the State did not object to the
defendant’s receipt of credit for the 91 days spent in custody
in Wyoming. That is not the case here.
CONCLUSION
For the foregoing reasons, we determine that the district
court did not err in declining to award credit for time served in
Leatherwood’s state case. Accordingly, we affirm.
Affirmed.
38 See Williams, supra note 5.