State v. Hopper

259 N.W.2d 31, 199 Neb. 403, 1977 Neb. LEXIS 819

• Court: Nebraska Supreme Court
• Decided: November 9, 1977
• Docket: No. 41273
• Status: Published

Opinion

White, C. J.

Defendant originally was charged with robbery. This charge was amended to one of assault with intent to commit robbery. Defendant entered a plea of guilty to the amended charge and was sentenced by the District Court to a term of 2 to 4 years imprisonment in the Nebraska Penal and Correctional Complex. Defendant appeals.

Defendant’s contention on appeal is that his sentence is excessive and that he should have received probation.

An order or sentence of the trial court which denies probation will not be overturned by this court on appeal unless there has been an abuse of discretion. State v. Leal, 198 Neb. 233, 252 N. W. 2d 167 (1977).

The record and presentence report show that defendant came to the victim’s apartment door and represented himself as a repairman sent by the manager of the apartment complex to work on some electricial wiring in the victim’s apartment. After working on an electrical box for a few minutes he asked the victim for a screwdriver. The victim indicated that she did not have a screwdriver, but offered to give the defendant a kitchen knife. After the victim had given the defendant the knife, the defendant came up behind her and held the knife to her throat, demanding money and a car. The victim told defendant that she had no money, but that her roommate had a bicycle. The defendant then ordered the victim to undress. After she had undressed, defendant pushed her toward the bedroom. No sexual assault, however, took place. The defendant then demanded the bicycle and left the premises on it.

We find no abuse of discretion by the District Court in concluding that the defendant should be incarcerated instead of receiving probation.

Defendant’s sentence was within statutory limits and as such will not be disturbed on appeal absent an abuse of discretion. State v. Gillham, 196 Neb. 563, 244 N. W. 2d 177 (1976).

The above narrative of this violent crime is sufficient to lay rest to the contention that defendant received an excessive sentence.

The judgment and sentence of the District Court are correct and are affirmed.

Affirmed.