State v. Haverkamp

Full title: STATE OF NEBRASKA, APPELLEE, v. JAMES HAVERKAMP, APPELLANT

Court: Supreme Court of Nebraska

Date published: Oct 31, 1986

395 N.W.2d 570 (Neb. 1986)

395 N.W.2d 570

Opinion

Nos. 86-472, 86-473.

Filed October 31, 1986.

Appeal from the District Court for Richardson County: ROBERT T. FINN, Judge. Affirmed as modified.

Curtis L. Maschman of Kotouc, Fankhauser Maschman, for appellant.

Robert M. Spire, Attorney General, and Lynne R. Fritz, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

Appellant pled guilty to each of three counts filed in two informations: theft by receiving stolen property (Neb. Rev. Stat. § 28-517 (Reissue 1985)), a Class III felony; carrying a concealed weapon (Neb. Rev. Stat. § 28-1202(1) (Reissue 1985)), a Class I misdemeanor if the offense is a first offense; and assault in the second degree (Neb. Rev. Stat. § 28-309(1) (Reissue 1985)), a Class IV felony.

The trial court sentenced the appellant to 20 years' imprisonment (effectively 1 to 20 years) and ordered him to pay a $25,000 fine on count I. He was sentenced to a term of 5 years' imprisonment on count II and ordered to pay a $10,000 fine. The trial court sentenced appellant to a term of 5 years' imprisonment (effectively 0 to 5 years) and ordered him to pay a $10,000 fine on count III. All terms of incarceration were ordered to run consecutively, and credit was given for 315 days of jail time awaiting sentence.

The sentences for counts I and III are well within the statutory limits and are not excessive, nor are they an abuse of the trial court's discretion, and are therefore affirmed.

As to count II, the sentence of 5 years' imprisonment and a $10,000 fine must be modified. In 1984 the Legislature amended the penalty for carrying a concealed weapon, changing a first offense for this crime from a Class IV felony to a Class I misdemeanor. 1984 Neb. Laws, L.B. 1095. The penalty imposed by the district court exceeds the statutory limits for a Class I misdemeanor and is hereby reduced to a term of 1 year. The appellant is further ordered to pay a $1,000 fine. See, Neb. Rev. Stat. § 29-2308 (Reissue 1985), State v. Goham, 187 Neb. 34, 187 N.W.2d 305 (1971).

AFFIRMED AS MODIFIED.