State v. Redwine

223 N.W.2d 488, 192 Neb. 638, 1974 Neb. LEXIS 767

• Court: Nebraska Supreme Court
• Decided: November 27, 1974
• Docket: No. 39515
• Status: Published

Opinion

Boslaugh, J.

The defendant was sentenced to 3 months imprisonment in the city jail upon a plea of guilty to unlawful possession of amphetamines. After he had been sentenced, the defendant made application for work release privileges. His application was overruled and he has appealed.

Work release privileges may be granted to persons sentenced to a city or county jail upon conviction for a misdemeanor or nonpayment of any fine or forfeiture. § 47-401, R. R. S. 1943.

The penalty prescribed for unlawful possession of amphetamines is imprisonment for 1 to 2 years in the Nebraska Penal and Correctional Complex, or a fine of not more than $500, or imprisonment in the county jail for not more than 6 months, or both a fine and imprisonment. §§ 28-4,117, 28-4,125(3), R. S. Supp., 1972.

When an offense is not designated by the statute creating it as either a felony or a misdemeanor, the grade of the offense is determined by the maximum punishment authorized by the statute. § 29-102, R. R. S. 1943; Case v. State, 177 Neb. 774, 131 N. W. 2d 191; Carr v. State, 152 Neb. 248, 40 N. W. 2d 677; Goedert v. Jones, 150 Neb. 783, 36 N. W. 2d 119; Rains v. State, 142 Neb. 284, 5 N. W. 2d 887; Bright v. State, 125 Neb. 817, 252 N. W. 386. Thus, possession of amphetamines is a felony because it may be punished by imprisonment in the Nebraska Penal and Correctional Complex.

Gandy v. State, 10 Neb. 243, 4 N. W. 1019, cited by the defendant, involved an interpretation of federal law. The Nebraska statutes are controlling here. The defendant was not eligible to receive work release privileges because he had been convicted of a felony.

The application was properly overruled. The judgment of the District Court is affirmed.

Affirmed.

White, C. J., not participating.