State v. Bosak

Nebraska Supreme Court

State v. Bosak

300 N.W.2d 201, 207 Neb. 693, 1981 Neb. LEXIS 715

CourtNebraska Supreme Court

DecidedJanuary 9, 1981

Docket43690

StatusPublished

Cited by3 cases

This text of 300 N.W.2d 201 (State v. Bosak) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Bosak, 300 N.W.2d 201, 207 Neb. 693, 1981 Neb. LEXIS 715 (Neb. 1981).

Pincite

Opinion

Per Curiam.

The defendant herein pleaded guilty to a charge of possession of lysergic acid diethylamide in violation of Neb. Rev. Stat. § 28-416(1)(a) (Reissue 1979). Lysergic acid diethylamide is a nonnarcotic Schedule I drug. Neb. Rev. Stat. § 28-405 (Reissue 1979). As such, it is a Class IV felony. Neb. Rev. Stat. § 28-416(2)(b) (Reissue 1979). Punishment for a Class IV felony is a maximum sentence of 5 years imprisonment or $10,000 fine, or both, with no minimum. Neb. Rev. Stat. § 28-105 (Reissue 1979). The trial court sentenced the defendant to a term of imprisonment for not less than 2 years and not more than 5 years. On appeal, the State concedes that where an indeterminate sentence is pronounced, the minimum limit fixed by the court shall not be less *694 than the minimum provided by law nor more than one-third of the maximum term. Neb. Rev. Stat. § 83-1,105 (1) (Reissue 1976).

Insofar as any other errors, except the sentence, are concerned, no motion for new trial was filed in this case; therefore, the only issue before us is whether the sentence was excessive. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979). The presentence report indicates that the trial court did not abuse its discretion when imposing imprisonment in lieu of probation. We have frequently held that, absent an abuse of discretion by the trial court in sentencing within statutory limits, this court will not disturb the action of the trial court on appeal. State v. Hortman, ante p. 393, 299 N.W.2d 187 (1980); State v. Tweedy, 197 Neb. 851, 251 N.W.2d 380 (1977). In view of the fact that the sentence was more than one-third of the maximum term, however, it must be reduced. The sentence is modified to provide that the defendant shall be confined to the Nebraska Penal and Correctional Complex for a term of not less than 1 year 8 months and not more than 5 years.

Affirmed as modified.

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Per Curiam.

The defendant herein pleaded guilty to a charge of possession of lysergic acid diethylamide in violation of Neb. Rev. Stat. § 28-416(1)(a) (Reissue 1979). Lysergic acid diethylamide is a nonnarcotic Schedule I drug. Neb. Rev. Stat. § 28-405 (Reissue 1979). As such, it is a Class IV felony. Neb. Rev. Stat. § 28-416(2)(b) (Reissue 1979). Punishment for a Class IV felony is a maximum sentence of 5 years imprisonment or $10,000 fine, or both, with no minimum. Neb. Rev. Stat. § 28-105 (Reissue 1979). The trial court sentenced the defendant to a term of imprisonment for not less than 2 years and not more than 5 years. On appeal, the State concedes that where an indeterminate sentence is pronounced, the minimum limit fixed by the court shall not be less *694 than the minimum provided by law nor more than one-third of the maximum term. Neb. Rev. Stat. § 83-1,105 (1) (Reissue 1976).

Insofar as any other errors, except the sentence, are concerned, no motion for new trial was filed in this case; therefore, the only issue before us is whether the sentence was excessive. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979). The presentence report indicates that the trial court did not abuse its discretion when imposing imprisonment in lieu of probation. We have frequently held that, absent an abuse of discretion by the trial court in sentencing within statutory limits, this court will not disturb the action of the trial court on appeal. State v. Hortman, ante p. 393, 299 N.W.2d 187 (1980); State v. Tweedy, 197 Neb. 851, 251 N.W.2d 380 (1977). In view of the fact that the sentence was more than one-third of the maximum term, however, it must be reduced. The sentence is modified to provide that the defendant shall be confined to the Nebraska Penal and Correctional Complex for a term of not less than 1 year 8 months and not more than 5 years.

Affirmed as modified.

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Bluebook (online)

300 N.W.2d 201, 207 Neb. 693, 1981 Neb. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bosak-neb-1981.

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