State v. Moore

Full title: STATE OF NEBRASKA, APPELLEE, v. JOE LOUIS MOORE, APPELLANT

Court: Supreme Court of Nebraska

Date published: Apr 4, 1974

216 N.W.2d 748 (Neb. 1974)

216 N.W.2d 748

Opinion

No. 39243.

Filed April 4, 1974.

Criminal Law: Sentences. Where the punishment of an offense created by statute is left to the discretion of the court, to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of such discretion.

Appeal from the District Court for Lancaster County: HERBERT A. RONIN, Judge. Affirmed.

T. Clement Gaughan and Richard L. Goos, for appellant.

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

Heard before WHITE, C. J., BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and COLWELL and WARREN, District Judges.

COLWELL, District Judge.

On pleas of guilty to a two-count information defendant was adjudged guilty of the crimes of escape under section 28-736, R.R.S. 1943, and to theft under section 28-522, R.R.S. 1943. On the crime of escape defendant was sentenced to imprisonment to a term of not less than 1 year nor more than 2 years. On the crime of theft defendant was sentenced to a term of imprisonment of 2 years. The sentences imposed were to run consecutively to each other and consecutively to the term of imprisonment being served by the defendant at the time of his escape. The statutory limit of punishment for each crime is a minimum of 1 year and a maximum of 10 years. The issue on this appeal is the excessiveness of the sentences.

The defendant, aged 37 years, was represented by the public defender during all these proceedings and this appeal. We affirm.

The presentence investigation report is a part of the appeal record. Defendant, a trusty, escaped from the Nebraska Penal and Correctional Complex on June 27, 1970, with another prisoner. During the escape a guard was threatened and restrained with ropes. Following the escape a state-owned motor vehicle was stolen by the defendant and abandoned at Omaha, Nebraska. Defendant was apprehended in April 1973, at Sioux City, Iowa. Where the punishment of an offense created by statute is left to the discretion of the court, to he exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of such discretion. State v. Williams, 187 Neb. 708, 193 N.W.2d 570.

A review of the record does not show any abuse of discretion by the trial court. The sentences imposed were not excessive.

AFFIRMED.