State v. Cohen

243 N.W.2d 782, 196 Neb. 523, 1976 Neb. LEXIS 824

• Court: Nebraska Supreme Court
• Decided: July 14, 1976
• Docket: No. 40520
• Status: Published

Opinion

McCown, J.

Defendant pleaded guilty to a felony charge of second offense petit larceny and was sentenced to 1 year imprisonment. The only issue on appeal is whether or not the sentence was excessive.

The statutory penalty for petit larceny second offense is imprisonment for not less than 1 year nor more than 2 years. See § 28-512, R. S. Supp., 1974. The only alternative disposition is probation. Although the stolen property involved in the specific charge here was of comparatively small value, there were prior convictions, both in this state and elsewhere, on petit larceny charges. In this case also, as a result of plea bargaining, another petit larceny charge was dismissed.

The defendant’s criminal record dates back to 1961, when the defendant was convicted of assault and battery on a deputy sheriff. His record includes a federal conviction in 1968 for selling sealed grain, for which he was sentenced to 4 months imprisonment and placed on probation for 3 years. His record also includes numerous check charges and includes an extensive number of alcohol related offenses. He had also been committed to the Lincoln Regional Center in 1971 and again in 1972.

The record establishes that the defendant was not a fit subject for probation. The trial court recognized the difficulties involved in the limitation of sentencing alternatives and imposed the statutory minimum sentence.

A sentence within statutory limits will not be disturbed on appeal unless there is an abuse of discretion. State v. Braasch, ante p. 240, 242 N. W. 2d 119. There was no abuse of discretion here.

Affirmed.