Opinion
No. 44292.
Filed December 18, 1981.
Appeal from the District Court for Scotts Bluff County: ALFRED J. KORTUM, Judge. Affirmed as modified.
James T. Hansen and Jonathan Pratter for appellant.
No appearance for appellee State.
Submitted without oral argument. KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant was convicted by a jury on a charge of possession with intent to distribute marijuana and sentenced to not less than 2 years' nor more than 4 years' imprisonment. The sole issue on appeal is whether or not the sentence was excessive.
The defendant was 49 years old at the time of the offense on October 22, 1980. He was single and lived by himself in a small two-room house on the rear of a residential lot where he had lived for several years. The police obtained a search warrant and searched the house and found several sacks of marijuana which weighed 9 pounds at the time of the search and weighed 6 1/2 pounds at the time it was examined by a chemist sometime later. None of the paraphernalia of trading in marijuana or other drugs was found in defendant's house. A witness testified that the quantity of marijuana found was more than would be required for the personal use of an individual. The defendant testified that he was not a user of marijuana or of other drugs, and also testified he knew nothing about the marijuana in his house but that he had given several friends permission to stay in the house. No one was present in the house when it was searched, but on the following morning the defendant went to the police station when he found the search inventory fastened on his door, identified himself to the police, and inquired what the inventory was about. At that time he was arrested and charged.
The defendant had lived in Scottsbluff for the past 46 years and had a misdemeanor record involving largely convictions and fines for intoxication or related offenses. His only jail sentence was in 1974 when he was sentenced to 30 days in the county jail for obtaining money under false pretenses. The defendant had worked at the Great Western sugar factory in season for the preceding 25 years, and at the time of the offense here was temporarily employed on a ranch some distance out of Scottsbluff.
The District Court, in sentencing the defendant, stated that to grant probation to the defendant would depreciate the seriousness of the crime. We accept that finding but are convinced that the circumstances do not warrant more than a minimum sentence. We, therefore, affirm the conviction but reduce the sentence to 1 year in an institution under the jurisdiction of the Department of Correctional Services. Defendant is to be given credit for time, if any, spent in custody pending trial and sentence.
AFFIRMED AS MODIFIED.