State v. Betts

Full title: STATE OF NEBRASKA, APPELLEE, v. GERALD L. BETTS, APPELLANT

Court: Supreme Court of Nebraska

Date published: Oct 12, 1977

258 N.W.2d 136 (Neb. 1977)

258 N.W.2d 136

Opinion

No. 41226.

Filed October 12, 1977.

Criminal Law: Sentences: Restitution. At the time of pronouncing sentence a trial court may reserve for determination at a later date the matter of fixing the amount of restitution to be made by the defendant.

Appeal from the District Court for Merrick County: C. THOMAS WHITE, Judge. Affirmed.

Philip T. Morgan of Morgan Morgan, for appellant.

Paul L. Douglas, Attorney General, and Harold Mosher, for appellee.

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

BOSLAUGH, J.

The defendant, Gerald L. Betts, was charged in separate informations with two counts of grand larceny. Upon pleas of guilty to both counts the defendant was, on September 2, 1975, placed on 3 years probation and ordered to make restitution in an amount which was later determined to be $4,145.

On July 26, 1976, the defendant's probation was revoked and he was sentenced to 1 years imprisonment in the Nebraska Penal and Correctional Complex, the sentence to run concurrently with another sentence imposed in Hall County, Nebraska. The trial court further ordered that a hearing be held to determine the amount of restitution to be paid by the defendant. A further hearing was held and on November 10, 1976, the amount of restitution was fixed at $4,145 to be paid by the defendant within 90 days.

The defendant has appealed and contends the order of November 10, 1976, was invalid because the defendant was serving the sentence imposed on July 26, 1976, at the time the order of November 10, 1976, was made and entered. The defendant relies on the rule that the District Court has no authority to set aside, modify, amend, or revise a valid sentence after the sentence has been put into execution by commitment of the prisoner. See State v. Adamson, 194 Neb. 592, 233 N.W.2d 925.

The order of November 10, 1976, was not a modification, amendment, or revision of the sentence of July 26, 1976, within the meaning of the rule stated above. At the time the sentence of imprisonment was pronounced the trial court reserved the matter of the amount of restitution to be paid for later determination. We find no error in this procedure and there was no prejudice to the defendant. Restitution was a part of the sentence imposed on July 26, 1976, and the order of November 10, 1976, merely fixed the amount.

The judgment of the District Court is affirmed.

AFFIRMED.