Thomas v. State

670 P.2d 111, 99 Nev. 757, 1983 Nev. LEXIS 533

Opinion

OPINION

Per Curiam:

This is an appeal from a judgment of conviction for burglary and grand larceny. Appellant Thomas contends that the evidence was insufficient to support his conviction, and that the district court abused its discretion in determining his sentence. We disagree with the first contention, but agree with the second. We therefore affirm Thomas’ conviction, but reverse and remand as to the sentence.

After Thomas was convicted, the Department of Parole and Probation recommended that the district court place him on probation. Relying on the fact that Thomas continued to maintain his innocence, however, the court rejected this recommendation and instead sentenced Thomas to concurrent four year terms. The court stated:

I am a little surprised at the recommendation of the [Probation] Department. This man still stands before this Court claiming his innocence. He was seen by neighbors at the scene of the crime. Furniture was removed from the house and left on the front lawn. He still tells us, however, that he just happened to be there with these other persons who were having a bad influence upon him.

If he were man enough to admit his guilt, that might be one thing, but he was given a fair trial. . . .

Thomas contends, and we agree, that in relying on the fact that Thomas refused to admit guilt, the district court abused its discretion in determining a sentence. See Bushnell v. State, 97 Nev. 591, 637 P.2d 529 (1981). The sentence therefore cannot stand.

We have also considered Thomas’ contentions concerning the sufficiency of the evidence, and we conclude that they are without merit. See Merryman v. State, 95 Nev. 648, 601 P.2d 53 (1979); People v. Zallar, 553 P.2d 756 (Colo. 1976). Accordingly, we affirm his conviction.

We affirm that part of the judgment finding Thomas guilty of burglary and grand larceny. We reverse that part of the judgment sentencing Thomas to concurrent four-year terms, and we remand this case for resentencing.