Opinion
No. 40818.
Filed February 16, 1977.
Criminal Law: Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion.
Appeal from the District Court for Lancaster County: SAMUEL VAN PELT, Judge. Affirmed.
T. Clement Gaughan and Richard L. Goos, for appellant.
Paul L. Douglas, Attorney General, and Melvin K. Kammerlohr, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
The defendant was originally charged with burglary and receiving stolen property. The defendant entered a plea of no contest to the burglary charge. Pursuant to a plea bargain, the charge of receiving stolen property was dismissed. On January 26, 1976, the District Court ordered the defendant committed to the Nebraska Penal and Correctional Complex for a 90-day evaluation. On April 16, 1976, the District Court sentenced the defendant to a term of 2 to 4 years, and was given credit for 80 days served in custody prior to sentencing, in the Nebraska Penal and Correctional Complex.
The defendant argues on appeal that under the facts his sentence is excessive. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. State v. Holloman, ante p. 139, 248 N.W.2d 15 (1976). The defendant contends that the District Court abused its discretion when it failed to follow the recommendation of the Nebraska Penal and Correctional Complex evaluation team that the defendant be placed on a highly structured program of probation, and instead sentenced him to a term of 2 to 4 years in the Nebraska Penal and Correctional Complex.
The District Court also heard a report from an officer of the adult probation office recommending against probation in this case. The record shows that the defendant was arrested, detained, or fined for: Receiving stolen property in May 1971; burglary in June 1971, for which he was placed on 2 years' probation; larceny in November 1971; petit larceny in December 1971, for which he was fined $50 and costs; burglary in 1972, which was amended to petit larceny, for which he was sentenced to 30 days in the county jail; and petit larceny in June 1974, for which he was fined $65.
It is clear from the record that the District Court carefully considered, weighed, and analyzed all the relevant evidence before making its determination that incarceration was preferable over probation in this case.
The judgment and sentence of the District Court are correct and are affirmed.
AFFIRMED.