State v. Kennedy

293 N.W.2d 71, 206 Neb. 404, 1980 Neb. LEXIS 865

Opinion

Per Curiam.

Upon motion for rehearing, the opinion previously adopted by this court, appearing at 205 Neb. 714, 289 N.W.2d 765 (1980), is hereby modified by deleting therefrom the last sentence of the first full paragraph on page 718, “Defendant did not perfect a direct appeal,” and substituting therefor “Although defendant filed a notice of appeal and argued excessiveness of his sentence, he did not include such argued excessiveness of his sentence within his assignment of errors.”

The opinion is further modified by adding on page 719, immediately preceding the final sentence of the opinion announcing the decision of the court, the following: “The charge of shooting with intent to kill, wound, or maim did not arise out of the same incident which formed the basis for the earlier charge of assault with intent to rob. Accordingly, there is no legitimate reason why the two sentences should not have been made to run consecutively. Defendant has a history of criminal and violent conduct going back to 1967, including at least two previous periods of incarceration at the Nebraska Penal and Correctional Complex. The shooting was directed at two police officers who were approaching the defendant to question him about a burglary and felonious assault and was not precipitated by any action of the officers. At the time of the offense, Neb. Rev. Stat. § 28-410 (Reissue 1975) provided for a sentence of from 1 to 50 years. The sentence imposed here did riot constitute an abuse of discretion, and, being within the limits of the statute, it must be affirmed. State v. Crouch, 205 Neb. 781, 290 N.W.2d 207 (1980).” The motion for rehearing is overruled.

Motion for rehearing overruled .