State v. Overstreet

Full title: STATE OF NEBRASKA, APPELLEE, v. RHUDOLPH OVERSTREET, APPELLANT

Court: Supreme Court of Nebraska

Date published: Feb 9, 1977

250 N.W.2d 246 (Neb. 1977)

250 N.W.2d 246

Opinion

No. 40843.

Filed February 9, 1977.

Criminal Law: Sentences: Appeal and Error. A sentence imposed within statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of discretion.

Appeal from the District Court for Lancaster County: SAMUEL VAN PELT, Judge. Affirmed.

Healey, Healey, Brown Wieland, for appellant.

Paul L. Douglas, Attorney General, and John R. Thompson, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

SPENCER, J.

Defendant, Rhudolph Overstreet, appeals his sentence of 1 to 5 years in the Nebraska Penal and Correctional Complex on the claim that the sentence imposed on him is excessive. We affirm.

Defendant pled guilty to a charge of shooting with intent to kill, wound, or maim his ex-wife. The court accepted the plea and referred him to the Penal Complex for psychological testing and evaluation. His psychological report recommended a structured probation. The probation officer recommended against probation. The trial judge in sentencing the defendant stated that he had given consideration to probation, out considering the seriousness of the case was imposing what he considered to be a minimal type sentence.

The facts in this case reveal no abuse of discretion on the part of the trial court. The defendant went to his ex-wife's residence with a loaded gun. Without provocation, when she insisted she needed child support. he aimed the gun at her head and shot twice. He missed once but hit the side of her head the second time. While the evaluation team recommended a highly structured probation, the judge is not bound to follow such recommendation.

Defendant could have been sentenced to a term of not less than 1 year nor more than 50 years in the Nebraska Penal and Correctional Complex. We agree with the trial judge. The sentence imposed was a minimal one. Defendant was given credit on the sentence for the time spent undergoing psychological testing.

Our law is well settled. A sentence imposed within statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of discretion. State v. McFall, 197 Neb. 136, 247 N.W.2d 60 (1976). There is no abuse of discretion herein. The judgment is affirmed.

AFFIRMED.