Opinion
Nos. 86-460, 86-461.
Filed October 31, 1986.
Appeal from the District Court for Richardson County: ROBERT T. FINN, Judge. Affirmed as modified.
Steven R. Brott, for appellant.
Robert M. Spire, Attorney General, and Lynne R. Fritz, for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
The appellant, John David Andreas, was charged in case No. 86-460 with theft by receiving stolen property in violation of Neb. Rev. Stat. § 28-517 (Reissue 1985). In a second count he was charged with carrying a concealed weapon in violation of Neb. Rev. Stat. § 28-1202(1) (Reissue 1985). He was further charged in case No. 86-461 with assault in the second degree in violation of Neb. Rev. Stat. § 28-309(1) (Reissue 1985). As part of a plea agreement, Andreas pled guilty to all three charges. The district court then sentenced Andreas. On count I in case No. 86-460, he was sentenced to imprisonment for a term of 20 years and fined $25,000. On count II, carrying a concealed weapon, he was sentenced to imprisonment for a term of 5 years and fined $10,000, the sentence to be consecutive to the sentence on count I. In case No. 86-461 he was sentenced to imprisonment for a term of 5 years and fined $10,000, the sentence to be consecutive to the sentences previously imposed in case No. 86-460.
Andreas, in his appeal to this court, does not maintain that the prison terms were excessive, but maintains only that the imposition of the fines was excessive and should be reduced. We have reviewed the record, and we find no abuse of discretion. We have consistently held that a sentence imposed within statutory limits will not be modified absent an abuse of discretion on the part of the sentencing judge. State v. Pearson, 215 Neb. 339, 338 N.W.2d 445 (1983). Being unable to find any abuse of discretion, we do not believe that there is any basis to modify the sentences on that ground.
The Attorney General, however, has called our attention to one matter which does require us to modify one of the sentences. In 1984 the Legislature of the State of Nebraska amended the penalty for the crime of carrying a concealed weapon. Prior to the amendment, the crime of carrying a concealed weapon was a Class IV felony, punishable by up to 5 years' imprisonment and a fine of $10,000. However, by reason of the amendment to 28-1202, carrying a concealed weapon, first offense, is now a Class I misdemeanor, punishable by imprisonment up to 1 year and a fine not to exceed $1,000. In view of the fact that the sentence was clearly in excess of the court's authority, we are compelled to modify that portion of the sentence. We believe no purpose will be served by returning the case to the district court for sentencing, but, rather, we simply reduce the sentence on count II in case No. 86-460 to imprisonment for a period of 1 year and a fine of $1,000, the sentence to be served consecutively to the sentence imposed in count I in case No. 86-460. In all other respects the sentences of the district court are affirmed.
AFFIRMED AS MODIFIED.