State v. Swift

Full title: STATE OF NEBRASKA, APPELLEE, v. LARRY H. SWIFT, APPELLANT

Court: Supreme Court of Nebraska

Date published: Oct 9, 1975

233 N.W.2d 572 (Neb. 1975)

233 N.W.2d 572

Opinion

No. 39996.

Filed October 9, 1975.

Criminal Law: Sentences. A sentence within the statutory limits will not be disturbed on appeal unless an abuse of discretion appears.

Appeal from the District Court for Sarpy County: RONALD E. REAGAN, Judge. Affirmed.

Paul E. Watts and George R. Sornberger, for appellant.

Paul L. Douglas, Attorney General, and Melvin K. Kammerlohr, for appellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and KUNS, Retired District Judge.

WHITE, C. J.

The only assignment of error in this case is the excessiveness of the defendant's sentences. The defendant was originally charged with three counts of felony motor vehicle homicide. As a result of a plea bargain, two of the felony counts were reduced to charges of misdemeanor motor vehicle homicide. The defendant entered a plea of no contest to these two misdemeanor charges. The third felony count was then dismissed.

The District Court imposed the maximum sentence of imprisonment provided by law for each count. The defendant was sentenced to serve 6 months in the county jail on each count, the sentences to run consecutively.

The charges against the defendant arose out of an automobile accident on March 23, 1974, in Sarpy County. Three people lost their lives in this accident. While the defendant would only admit to driving 35 to 40 miles per hour, the District Court was convinced by the evidence that the defendant was going over 85 miles per hour at the time of the accident. There was also evidence in the presentence report that the defendant had been drinking prior to the accident.

The rule is well established that when a sentence is within the statutory limits, this court will not disturb it, unless the District Court clearly abused its discretion. State v. Johnson, 191 Neb. 54, 213 N.W.2d 716 (1974).

We have carefully reviewed the record, and there was no abuse of discretion by the District Court in imposing the sentence that it did under the circumstances as revealed by the record.

The judgment of the District Court is correct and is affirmed.

AFFIRMED.