Opinion
No. 39365.
Filed May 23, 1974.
Criminal Law: Presentence Reports: Sentences. Unless it is impractical to do so, when an offender has been convicted of a felony, the court shall not impose sentence without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation.
Appeal from the District Court for Dakota County: JOSEPH E. MARSH, Judge. Affirmed in part, and in part reversed and remanded for resentencing.
Don A. Fitch, for appellant.
Clarence A. H. Meyer, Attorney General, Warren D. Lichty, Jr., and Gary R. Welch, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
Defendant pled guilty to manslaughter on October 12, 1973. He was sentenced the same day to imprisonment for 10 years. He perfected an appeal, alleging three assignments of error. The second assignment alleges the trial court abused its discretion in sentencing the defendant without the benefit of a presentence investigation. We affirm the judgment of conviction, and remand for resentencing.
Defendant was originally charged with first-degree murder but the charge was reduced to second-degree murder upon his agreement to testify for the State in a murder trial against another charged with killing the same individual. Defendant entered a plea of guilty to the reduced charge and a presentence investigation was ordered by the court. The other person was subsequently acquitted. Defendant was then allowed to withdraw his former plea and to enter a plea of guilty to manslaughter. The presentence investigation ordered by the court had not yet been completed. Defendant was sentenced without the benefit of a presentence report. A report was filed several days after the sentence was pronounced.
Section 29-2261, R. S. Supp., 1972, so far as material herein, provides: "(1) Unless it is impractical to do so, when an offender has been convicted of a felony, the court shall not impose sentence without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation." (Emphasis supplied.) This provision, which came into our law in 1971, makes it mandatory, unless impractical to do so, to require a written presentence investigation of all felony offenders. This provision was not followed herein. We vacate the sentence and remand the cause for resentencing according to law.
In view of our action herein we do not consider the other assignments of error set out by defendant.
The judgment of conviction is affirmed and the cause is remanded for resentencing in compliance with section 29-2261, R. S. Supp., 1972.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR RESENTENCING.