State v. Klinkacek

Full title: STATE OF NEBRASKA, APPELLEE, v. LOUIE KLINKACEK, APPELLANT

Court: Supreme Court of Nebraska

Date published: May 25, 1973

207 N.W.2d 524 (Neb. 1973)

207 N.W.2d 524

Opinion

No. 38836.

Filed May 25, 1973.

Criminal Law: Sentences: Intoxicating Liquors: Motor Vehicles. sentence to 3 years' imprisonment for driving while intoxicated was not excessive where the defendant had six previous convictions for the same offense, had violated his probation order, and had failed to continue with treatment for alcoholism.

Appeal from the District Court for Hall County: DONALD H. WEAVER, Judge. Affirmed.

Joseph D. Martin, for appellant.

Clarence A. H. Meyer, Attorney General, and Harold S. Salter, for appellee.

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

BOSLAUGH, J.

The defendant pleaded guilty to third offense operating a motor vehicle while under the influence of alcoholic liquor. On June 1, 1972, the District Court placed the defendant on probation for 3 years. The order provided that the defendant should abstain from the use of alcoholic beverages and not drive an automobile during the period of probation.

Thereafter an application to revoke the order of probation was filed alleging the defendant had not abstained from the use of alcoholic liquor and had driven a car. At the hearing on the application on September 25, 1972, the defendant admitted he had violated the probation order as alleged. The order of probation was revoked and the defendant was sentenced to imprisonment for 3 years. The defendant contends the sentence was excessive.

The defendant is 50 years of age, divorced, and has no children. He has been employed as a farm and ranch laborer. He has been found guilty of driving while intoxicated six times before the offense charged in this case. He has been sentenced to jail on three occasions. He has no prior felony convictions.

When the defendant was placed on probation he was receiving treatment for alcoholism. The trial court directed the defendant to continue with the treatment. The defendant stopped taking antibuse about 60 days after he had been placed on probation and commenced drinking about 30 days later.

The sentence imposed is the maximum permitted by the statute. 39-727, R. S. Supp., 1971. Although an indeterminate sentence would have been appropriate in this case, the sentence imposed was not excessive under the facts and circumstances.

The judgment of the District Court is affirmed.

AFFIRMED.