State v. PaulState v. Paul
- Reporters:
- , ,
- Before:
- Yeager
This is a criminal action prosecuted in the name of *669 thе State of Nebraska, plaintiff, in the district court for Lancaster Cоmity, Nebraska, on information filed by William D. Blue, chief deputy county attоrney, charging that Michael Paul, defendant, appellant herein, was guilty of the offense of grand larceny which was committed in the Cоunty of Lancaster and the State of Nebraska. On November 13, 1963, he wаs duly and regularly arraigned on the charge and at that time entered a plea of nolo contendere. At that time on this pleа the court found him guilty of the charge and deferred action pеnding presentence investigation- by the adult probation officеr of the district court.
Thereafter on November 27, 1963, the court considered, ordered, and adjudged that he was guilty of the charge contained in the information and that he be imprisoned and confined in thе Nebraska Penal and Correctional Complex in Lancastеr County, Nebraska, for a period of 18 months from the date of sentеnce, and pay the costs of prosecution.
On the same dаy the defendant gave notice of appeal and was duly and regularly released on a bail bond pending the appeаl.
By the assignments of error on appeal no contention is made that the judgment of conviction of the crime charged should bе reversed and set aside. The only assignments of error are that thе sentence is excessive under the circumstances and the fаcts established, and that the court erred in refusing to make the reрort of the adult probation officer a part of the record.
Based on these assignments of error the appellant contends only that the sentence should be, as stated in his brief, “reducеd to one year, the minimum provided by law.” This minimum is 1 year and the maximum is 7 years. § 28-506, R. R. S. 1943.
This court has the right to reduce a- sentence rendered by the district court when in its opinion a sentence is excessive, and to rendеr such sentence against the accused as in its opinion may bе warranted by the evi *670 dence. § 29-2308, R. R. S. 1943; State v. Eggers, 175 Neb. 79, 120 N. W. 2d 541. Other cases sustaining this rule are numerous.
It is to be assumed from the brief that the theory of thе defendant is that the failure of the court to cause the probation officer’s report to be made a part of the rеcord improperly deprives this court of the right to consider possible information which would have a bearing on the propriеty of the sentence imposed, in the light of which it must be presumed that dеtriment resulted to the defendant.
Under section 29-2235, R. S. Supp., 1963, the theory is without merit.
In a situation where sentence has been imposed within statutory limits it will not be disturbed in the absence of abuse of discretion. Taylor v. Stаte, 159 Neb. 210, 66 N. W. 2d 514; Salyers v. State, 159 Neb. 235, 66 N. W. 2d 576.
The record in this case contains m showing of any kind or charаcter that the sentence was excessive. In particular thе report of the adult probation officer is not in the recоrd, it was never properly offered in evidence, and no foundation was made for the offer of it or its contents. The record discloses in this connection only that the following question was asked by the attorney for the defendant: “Your Honor, is it appropriatе at this time to ask that the adult probation report be marked in еvidence?” To- which the court replied: “No. There is no need tо do1 that.”
An examination of the entire record which is presented on this appeal fails to indicate that the district court abused its discretion in the imposition of the penalty on the defendant.
The judgment of the district court is affirmed.
Affirmed.