Opinion
No. 37984.
Filed October 29, 1971.
1. Sentences: Statutes: Courts: Appeal and Error. Section 29-2308, R.R.S. 1943, provides that this court may reduce the sentence rendered by the district court against an accused when in its opinion the sentence is excessive, in which event it renders such sentence as may be warranted by the evidence. 2. ___: ___: ___: ___. Where the punishment of an offense created by statute is left to the discretion of the district court to be exercised within certain prescribed limits, a sentence imposed within such limits will not ordinarily be disturbed where there is no abuse of such discretion.
Appeal from the district court for Buffalo County: S. S. SIDNER, Judge. Affirmed.
Jeffrey L. Orr, for appellant.
Clarence A. H. Meyer, Attorney General, and Ralph H. Gillan, for appellee.
Heard before SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
Appellant appeals from a 15-year sentence in the Nebraska Penal and Correctional Complex for the offense of sodomy. The only question raised in the appeal is whether under the circumstances the sentence was excessive. We affirm.
The record would indicate that the offense was forcefully perpetrated on a teen-age boy while both parties were confined in the Buffalo County jail. Appellant at the time was waiting trial on two separate felony offenses, one of which involved assault on a 12-year-old boy. The presentence investigation is a part of the record herein. It indicates that appellant has previously been confined in the Nebraska Penal and Correctional Complex. Under order of the Buffalo County district court on the assault charge, a psychiatric evaluation was made of appellant. The report indicates appellant was considered dangerous and homicidal.
Section 29-2308, R.R.S. 1943, provides that this court may reduce the sentence rendered by the district court against an accused when in its opinion the sentence is excessive, in which event it renders such sentence as may be warranted by the evidence. We have said that where the punishment of an offense created by statute is left to the discretion of the district court to be exercised within certain prescribed limits, a sentence imposed within such limits will not ordinarily be disturbed where there is no abuse of such discretion. See State v. Whitaker, 185 Neb. 57, 173 N.W.2d 397.
In view of appellant's past record and the presentence information available to the district court, we cannot say that an abuse of discretion has been shown herein. Judgment affirmed.
AFFIRMED.