State v. Brumfield

Nebraska Supreme Court

State v. Brumfield

324 N.W.2d 407, 212 Neb. 605, 1982 Neb. LEXIS 1259

CourtNebraska Supreme Court

DecidedSeptember 24, 1982

Docket81-904

StatusPublished

Cited by1 cases

This text of 324 N.W.2d 407 (State v. Brumfield) 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. Brumfield, 324 N.W.2d 407, 212 Neb. 605, 1982 Neb. LEXIS 1259 (Neb. 1982).

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Opinion

Caporale, J.

This appeal challenges the right of a trial court *606 which has imposed a fine, together with imprisonment up to the maximum period permissible, to peremptorily direct satisfaction of the fine by crediting pretrial custody time against it. We hold a trial court may not so do and remand this case for re-sentencing of the defendant.

During the late evening hours of May 16, 1981, defendant-appellant, William M. Brumfield, and others met the victim at a Lincoln bar. After some drinking, the victim, the defendant, and the others went to the victim’s apartment where they continued to drink and listen to music. During the early morning hours of May 17, 1981, defendant struck the victim with a wooden stick which was approximately 30 inches long and 1 inch in diameter. As a result the victim suffered a painful laceration to the back, of his head.

Following a plea of no contest, the defendant was found guilty of second degree assault, a Class IV felony. Defendant was sentenced to serve a term of not less than 20 months nor more than 5 years in an institution under the jurisdiction of the Department of Correctional Services. The court also imposed a $5,000 fine to cover the costs of prosecution. The defendant was given credit for the 182 days he spent in custody prior to sentencing, and said credit was ordered applied to the fine at the rate of $25 per day. A Class IV felony authorizes a maximum penalty of 5 years’ imprisonment, a $10,000 fine, or both such imprisonment and fine.

The defendant argues that the trial court erred in applying the time spent in pretrial custody to the partial satisfaction of the fine.

The issue presented is controlled by State v. Holloway, ante p. 426, 322 N.W.2d 818 (1982). Where a fine has been imposed as part of a penalty which authorizes imprisonment up to the maximum period permissible, a court may not peremptorily direct that the fine be satisfied by crediting the pretrial *607 custody time against it. The defendant must he afforded an opportunity to pay the fine in accordance with law.

Accordingly, the cause is remahded to the Nebraska Third Judicial District Court, Lancaster County, for resentencing in accordance with the principles enunciated herein.

In view of the foregoing determination, we do not address defendant’s claim that his sentence was excessive.

Reversed and remanded.

Clinton, J., participating on briefs.

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Caporale, J.

This appeal challenges the right of a trial court *606 which has imposed a fine, together with imprisonment up to the maximum period permissible, to peremptorily direct satisfaction of the fine by crediting pretrial custody time against it. We hold a trial court may not so do and remand this case for re-sentencing of the defendant.

During the late evening hours of May 16, 1981, defendant-appellant, William M. Brumfield, and others met the victim at a Lincoln bar. After some drinking, the victim, the defendant, and the others went to the victim’s apartment where they continued to drink and listen to music. During the early morning hours of May 17, 1981, defendant struck the victim with a wooden stick which was approximately 30 inches long and 1 inch in diameter. As a result the victim suffered a painful laceration to the back, of his head.

Following a plea of no contest, the defendant was found guilty of second degree assault, a Class IV felony. Defendant was sentenced to serve a term of not less than 20 months nor more than 5 years in an institution under the jurisdiction of the Department of Correctional Services. The court also imposed a $5,000 fine to cover the costs of prosecution. The defendant was given credit for the 182 days he spent in custody prior to sentencing, and said credit was ordered applied to the fine at the rate of $25 per day. A Class IV felony authorizes a maximum penalty of 5 years’ imprisonment, a $10,000 fine, or both such imprisonment and fine.

The defendant argues that the trial court erred in applying the time spent in pretrial custody to the partial satisfaction of the fine.

The issue presented is controlled by State v. Holloway, ante p. 426, 322 N.W.2d 818 (1982). Where a fine has been imposed as part of a penalty which authorizes imprisonment up to the maximum period permissible, a court may not peremptorily direct that the fine be satisfied by crediting the pretrial *607 custody time against it. The defendant must he afforded an opportunity to pay the fine in accordance with law.

Accordingly, the cause is remahded to the Nebraska Third Judicial District Court, Lancaster County, for resentencing in accordance with the principles enunciated herein.

In view of the foregoing determination, we do not address defendant’s claim that his sentence was excessive.

Reversed and remanded.

Clinton, J., participating on briefs.

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324 N.W.2d 407, 212 Neb. 605, 1982 Neb. LEXIS 1259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brumfield-neb-1982.

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