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State v. Ward

Supreme Court of Nebraska
Nov 6, 1987
415 N.W.2d 151 (Neb. 1987)

Opinion

No. 87-511.

Filed November 6, 1987.

Homicide: Sentences. Under the provisions of Neb. Rev. Stat. 28-105 and 28-304(2) (Reissue 1985) a court is not authorized to sentence one convicted of second degree murder to an indeterminate sentence but must sentence such a person to imprisonment either for life or for a definite term of not less than 10 years.

Appeal from the District Court for Scotts Bluff County: ALFRED J. KORTUM, Judge. Sentence vacated, and cause remanded for resentencing.

Charles F. Fitzke, Scotts Bluff County Public Defender, for appellant.

Robert M. Spire, Attorney General, and LeRoy W. Sievers, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, D.J., Retired.


Defendant, Kevin J. Ward, was adjudged guilty of second degree murder and ordered to "serve an indeterminate sentence of thirteen to sixteen years" at the Nebraska Penal and Correctional Complex. He appeals and assigns that sentence as error, which the State has confessed by filing a motion to correct the same.

Neb. Rev. Stat. § 28-304(2) (Reissue 1985) defines murder in the second degree as a Class IB felony. The penalty authorized by Neb. Rev. Stat. § 28-105 (Reissue 1985) for such a felony is "Maximum — life imprisonment Minimum — ten years imprisonment." We have therefore held that a court is not authorized to sentence one convicted of second degree murder to an indeterminate sentence, but must sentence such a person to imprisonment either for life or for a definite term of not less than 10 years. State v. Moss, 219 Neb. 327, 363 N.W.2d 367 (1985); State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974).

As the sentence imposed upon the defendant is clearly invalid, defendant's assignment of error is sustained. Accordingly, the sentence is vacated and the cause remanded to the district court for resentencing.

SENTENCE VACATED, AND CAUSE REMANDED FOR RESENTENCING.


Summaries of

State v. Ward

Supreme Court of Nebraska
Nov 6, 1987
415 N.W.2d 151 (Neb. 1987)
Case details for

State v. Ward

Case Details

Full title:STATE OF NEBRASKA, APPELLEE, v. KEVIN J. WARD, APPELLANT

Court:Supreme Court of Nebraska

Date published: Nov 6, 1987

Citations

415 N.W.2d 151 (Neb. 1987)
415 N.W.2d 151

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