*1 785 mаy differ as to whether minds reasonable Where supporting can conclusion the ultimate inference an grant- judgment summary not be drawn, should Pfeifer, 2d 451 238 N. W. Pfeifer v. ed. (1976). could differ as minds find that reasonable
We the evidence this from inferences to be drawn plaintiff therefore, or is and, to whether is case Accordingly, plaintiff totally is not not disabled. judgment summary judgment and the entitled to pro- remanded further and the cause reversed ceedings. and remanded.
Reversed Cory appellee, Behrens, Nebraska, State appellant. 2d 513 N. W. 20, 1979. No. 42661.
Filed November аppellant. Peetz, Forrest F. Douglas, Attorney General,
Paul L. and Harold appellee. Mosher, for J., Boslaugh, McCown, Heard before Krivosha, C. *2 and JJ.
Clinton, Brodkey, White, Hastings, J. Clinton, charged Thе defendant was in the District Court County, Nebraska, for Holt with the crime of assault great bodily injury. with intent to inflict He was by jury guilty tried and found of the lesser offense battery. of assault and He received a sentence of 2 years probation, subject, among others, to the fol- (a) lowing conditions: He shall be confined the County jail prior Holt time in for 90 with no credit for confinement, (b) He shall refrain from fre- quenting disreputable places unlawful or or consort- ing disreputable persons, with and he shall consume public appear public no alcohol after con- suming Any peace probation alcohol. officer offi- having cer reasonable cause to believe the defend- may provision ant have violated this shall forthwith bring hearing him before the court for a on said vio- (c) lation. He shall make restitution of the fruits of his crime in the amount of $160.50 Western Insur- Company ance for medical bills and the amount of pain to Dr. Julian suffering, $500 Pickens for and and court costs. appeal On court, assigns this the defendant and
argues (1) following the sentence, errors: cluding 90-day jail term, the par- and, is excessive tiсular, the court giving abused its discretion in not “prior jail (2) credit for time.” It was an abuse of discretion for the court to that the defendant not public be allowed to consume alcohol in nor be appear public having allowed to after consumed (3) alcohol. The court abused its discretion in re- quiring probation, that, as a condition of the defend- pаy ant as to the victim of the assault the sum of $500
compensation suffering. We affirm. assignment, support In the defendant his first (1) arguments: not several Jail is advances an authorized condition in misdemеanor (2) penalty In cases. cases where maximum im- of a misdemeanor conviction position 90-day jail together term, of a with tion, the maximum sentence authorized exceeds (3) holding of this court in State law. Nuss, Under the 755, 212 N. 2d confinement W. (4) If not be made a condition the conditions of the defendant should violate his to the he could be sentenced battery. In term of 6 months for assault event, the total exceed the maximum would (5) by law. The sentence sentence authorized excessive under the circumstances. is argument first is ill-founded. It The defendant’s apparent expressly contemplate that the statutes described in authorized conditions sec- *3 applicable 1943, 29-2262, R. S. are tion R. misde- (2), Section 29-2260 R. R. S. meanor convictions. prоvides part: 1943, “Whenever court considers convicted of either a misde- sentence for an offender felony, meanor or a of the court withhold sentence statute, That unlеss.....” (4), then authorizes a sentence of subsection imprisonment. 29-2262, Section R. tion lieu of R. expressly jail 1943, time as a condition S. authorizes part are of the The two statutes same together. act and must be construed We hold that 1943, 29-2262,R. R. S. authorizes confinement section county condition of in the as a a misdemeanor. of a conviction of case (4) (2) hypothetiсal. Arguments above are and battery The for assault and days, together The time of 90 with months. probation, not exceed the maxi- the sentence of does question posed by ar- mum authorized law. The (4) gument only violates if the defendant will arise then receives a sen- the terms of his tence. The problem simply not before us raised is (3), argument holding in at this time. As to our supra, applicable. Nuss, v. is not The 1975 State 29-2262, 1943, R. R. S. author- amendment section izing jail time as a condition of was the legislative response supra. specific Nuss, to State v. argument, fifth we note As tо defendant’s exceptions there was no bill of filed in this case. We do not know the details and circumstances of the as- Any assignment requires of error sault. which an prevail ap- of the on examination evidence cannot peal exceptions. in the absence of a bill of Hanson Hanson, 675, 699; 198 Neb. 254 N. W. 2d State v. Griger, 405, However, 208 N. 2d 672. W. presentence investigation inis the record before us. report, An examination of that which includes infor- past record, mation as to the defendant’s criminal clearly indicates the court did not abuse its discrе- imposing tion the sentence it did.
The defendant’s claim that the court abused its restricting discretion in the defendant’s use of alco- clearly presentence hol is vestigation unmeritоrious. conclusively
indicates the abuse of al- major contributing is a cohol factor to the defend- ant’s unsocial conduct. requiring
The contention that the court erred in pay the defendant to the victim of his assault compensation suffering sum of $500 for. imposition is not sustainable. The tion comes within the terms of condition of such a condi-
(j) of sec- provides part: 29-2262, tion R. R. S. which reparation “. . . to make such as the court deter- appropriate damage mines to be for the loss *4 caused” the crime. Appeals Washington,
The Court of of the State of answering virtually in a similar contention under a statutory provision, pro- identical viding held that a statute suspension that, sentence, as a condition to of
789 may require person to res- make a a conviсted court any person persons have suffered to who titution damage by of the of commission reason the loss question, empowered court, trial as a in the crime upon suspending a of sentence conviction condition degree, in the of third to restitution assault suffering, in to addition for the victim expenses wages, and there no and lost was medical impоsing condition. State in such of discretion abuse 1973). (Wash. App., Morgan, 1195 In the 504 P. 2d exceptions cannot, course, of of a bill we absence of judgment any that the amount is excessive. make Affirmed. dissenting concurring part J., McCown, in part. holdings generally of the ma-
I concur
with the
portion
jority opinion,
I
from that
of
but
dissent
opinion
impliedly
sanctions
disallowance
which
awaiting
spent
any
for
sentence
of
credit
time
90-day jail
against
confinement
the maximum
probation.
imposed in a
of
to be
authorized
specifically
of
case the sentеnce
In this
provided,
a
of
that
the de-
as
condition
County jail
the Holt
was
be confined
fendant
past
period
90
“with no credit
a
of
County
spent
Holt
Jail.”
record reflects
said
spеnt
days
county
the defendant had
charges
on
on the
he was released
bail
before
By denying any
time,
here.
credit
volved
imposed
period
of
Court has
a
the District
county jail
imprisonment
probation.
condition of
that, in the
of stat-
absence
There can
no doubt
any
impose
period
power
of
ute,
the court has no
State v.
as a condition
(1973).
755,
A
Nuss,
212 W. 2d 565
stаtute
190Neb.
N.
authorizing imprisonment
as a condition
adopted
29-
in 1975. Section
tion
in Nebraska
was
provides
1943,
a condition
R. R. S.
that as
*5
probation
any
may
case,
of
a sentence
rеquire
court
county jail
the offender to be confined
days.”
for “not to exceed 90
This court has held that where
maximum term
statutory
of a sentence of
is the
maxi-
jail
previously
offense,
mum for the
credit for
given.
Blazek,
served must be
See State v.
466,
as a condition of Rea- concepts justice require sonable that credit jail previously given served must be whenever statutory period the posed of confinement is im- any
as a condition on sentence any us, In the case now before defendant who had jail been not prior confined in for failure to furnish bail sentencing required to trial and could not be days any serve more than 90 under including actually pronounced. the one required here, however, The defendant will be days ap- serve 133 under the sentence now proved by simрly this court because he could not period days. bail for a raise fendant of 43 To a de- poor spend weeks, who is more defendant, months in than a rich who receives simply crime, an identical sentence for the identical poor because the defendant who is cannot raise the money injustice bail, any constitutes rank under civilized standard of mеasurement. To sanction sentencing contrary such cepts to the fundamental con- pro- justice.
of even-handed The sentence of by granting bation here should be modified credit of spent jail awaiting sentencing. for time