In а multicount information, defendant was respectively charged with: (1) Burglary; (2) unlawful possession of a burglary tool; and (3) possession of a firearm by a felon. In addition, the State charged the defendant with being an habitual criminal. After trial, the defend
ant was found guilty upon each count; and a separate hearing was thereafter held with respect to the habitual criminal charge under, section 29-2221, R. S'. Supp., 1972. The court found the defendant to be an habitual criminal and thereupon procеeded to
By way of general factual background for the incidents involved in this case, it appears that at or about 2:30 a.m. on November 12, 1972, a Lincoln, Nebraska, police department helicopter pilot was informed by police radio of an ADT alarm at the Western Gun and Supply Company. The helicopter arrived over the premises of Western Gun about 20 seconds later and observed a “station wagon type” vehicle. sitting at the southeast-corner of the building. As the helicopter approached, the automobile drove away, the pilot observing that its right rear taillight was out and that there appeared to be some plastic coverings on the rear of the vehicle. The helicopter pilot kept the vehicle in his observation at all times, and radioed directions for a police car to intercept the station wagon. The station wagon whs stopped by the police vehicle,-and the defendant and one Martyn Youngstrom were found to be occupants in the station wagon. -Although the testimony was conflicting as to whether the driver of the automobile consented to a search of his vehicle, it is clear that a search was. made, which yielded two hand guns аnd a crowbar. Defendant was subsequently arrested, charged, tried, and sentenced, as set out above. Additional facts of this case will be discussed under the particular assignments of error hereinafter set out.
Among the many errors assigned by defendant is that the trial court erred in overruling his motion to suppress, certain evidence of the State. Defendant asserts that no permission was .obtained from him by the police before.
they searched his automobile and obtained the guns and сrowbar previously referred to. There was, however, testimony by one of the arresting officers to the effect that the defendant did give consent to the search of his automobile. Obviously the evidence on this point was conflicting. In such situation, the decision upon the motion to- suppress is for the court, and will not be reversed on appeal in the absence of an abuse of discretion. State v. Batchelor,
The defendant asserts that the evidence in this case is insufficient to support the verdict of guilt on each of the three felonies involved. It is clear from the record that there was more than sufficient evidence to submit to the jury for its determination of guilt on the charges of possession of a burglary tool and also upon the charge of possession of a firearm. No further discussion is necessary with reference to those two chаrges.
We shall, however, discuss the claim of the defendant that the evidence was insufficient with respect to the charge of burglary, particularly with respect to defendant’s claim that there was no' evidence of an entry by the defendant into the building in question. We add, in passing, that the evidence is clear there was an unlawful breaking of the building, by virtue of the testimony of presence of jimmy marks on a door at the premises; and also the testimony of an FBI agent who examined the crowbar obtained as evidence and testified as to the kind and size of the marks, and also with respect to the paint samples which were taken from the door in question. This evidence as to the breaking was submitted to the jury under proper instructions, and its verdict necessarily reflects its conclusion that there was breaking in this case. Defendant does not seriously attack this conclusion in his brief. Turning to the question as to the sufficiency of evidence to show that defendant in fact did enter the Western Gun and Supply
Company building, the witness, Donald Nielsen, an employee of Notifier Corporation which installed the burglar alarm or 'security system in the Western Gun and
We next turn our attention to a consideration of the errors alleged by defendant in connection with the habitual criminal proceedings following the verdicts returned by the jury and to the sentencing thereafter by the court. As previously stated, the amended information filed in this case, after setting out the three substantive offenses on which the defendant was tried in this action, also incorporated allegations to the effect that the defendant was an habitual criminal under the Nebraska Habitual Criminal Act. Particularly, it alleged that the defendant had been convicted of two prior crimes and was sentenced and committed to prison to terms of not less than 1 year on each of said crimes, all as required by the Nebraska statute. One of the prior crimes with which defendant was charged and convicted, was alleged to have occurred on April 15, 1965. At the habitual criminal hearing, following the verdict of guilty on the three counts with which the defendant was charged in this case, the evidence adduced revealed that the defendant was convicted of a crime on April 4, 1961, and not April 15, 1965. The attorney for the State thereupon moved to amend the information to conform with the evidence and alleged that the felony had occurred on April 4, 1961. Objection to the amendment was made on behalf of the defendant, but the trial court allowed it. The defendant contends that the trial court committed reversible error in permitting the amendment as to the date of one of the two prior felonies alleged in the original information. His thеory was that such action constituted a violation of section 29-2221, R. S. Supp., 1972, and of Article I, section 11, of the Nebraska Constitution, and also of the Sixth Amendment to the Constitution of the United States. Section 29-2221, R. S. Supp., ,1972, provides in part that: “Where punishment of an accused as an habitual criminal is sought,
the facts with reference thereto
must be charged in the indictment or information which contains the charge of the felony upon which the accused is prose
cuted. ...” (Emphasis supplied.) Article I, section 11, of the Nebraska Constitutiоn, and the Sixth Amendment to the United States Constitution both guarantee an accused the right to be informed of the “nature and cause” of the accusation against him.
■ It must be remembered that the Habitual Criminal Act does not create a new and separate criminal offense for which a person may be separately sentenced, but provides merely that the repetition of criminal conduct aggravates the guilt and justifies greater punishment than ordinarily would be considered. Statе v. Tyndall,
. Under the Nebraska law, the essential allegations which an information must contain for a charge under the Habitual Criminal Act are that said person .has been '(1) twice previously convicted of a crime, (2) sentenced, and (3) committed to prison for terms not less than 1 year each. § 29-2221, R. S. Supp., 1972; Rains v. State,
Defendant further contends that the insufficiency of the information, as it appeared before the amendment permitted by the court, was violative of Article I, section 11, of the Constitution of Nebraska, and also the Sixth Amendment to the Constitution of the United States. The Nebraska constitutional provision requires that an information must inform the accused with reasonable certainty of the charge against him so that he may prepare his defense therеto and be enabled to plead the judgment thereon as a bar to a later prosecution for the same offense. Moline v. State,
The defendant further cоntends that the trial court erred in considering, for the purpose of the Habitual Criminal Act, a prior conviction in which he had not been advised of his right to counsel. At the habitual criminal hearing in this case, the State introduced a record of an arraignment of the defendant on a charge
of burglary in 1963. The record showed that the defendant had waived his right to counsel at that arraignment and had entered a plea of guilty. However, at the time of sentencing thereon, the defendant, appearing without counsel, was not informed that counsel would be appointed for him if he could not afford to retain counsel of his own. Defendant made proper objections to the court’s consideration of that prior conviction. State v. McGhee,
The law is well settled that an accused is entitled to be represented by counsel at all “critical stages” of the proceedings against him, including the occasion upon which he is sentenced. Davis v. United States,
The defendant also complains of the nature of the sentences entered by the court in this case. As previously stated the court sentenced the defendant to a term of not less than 15 nor more than 20 years on each of the 3 felonies for which he was convicted, the sentences to run concurrently. Defendant contends that such a sentence is not authorized under the Habitual Criminal Act. Section 29-2221, R. S. Supp., 1972, provides in part: “Whoever has been twice convicted of crime, sentenced and committed to prison . . . for terms of not less than one year each, shall, upon conviction of a felony ... be deemed to be an habitual criminal, and shall be punished by imprisonment . . . for a term of not less than ten or more than sixty years . . ..”
Defendant argues that this section does not authorize punishment from 10 to 60 years for eаch felony count alleged in the information. In support of this contention he cites State v. Gaston,
The defendant also contends that the sentence imposed upоn him by the trial court was excessive. While it is true that the trial court imposed separate sentences under the Habitual Criminal Act for each of the three felonies for which he was convicted, the trial court specifically provided that the sentences were to run concurrently, and therefore, for all practical purposes, he received one sentence for the three offenses so far as the maximum possible term of confinement is concerned. We have repeatedly ruled that where the punishment of an offense created by statute is left to the discretion of the court, to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of discretion. State v. Cano,
Defendant has also assigned certain other alleged errors in connection with this appeal. We believe these assignments to be without merit, but will comment on them briefly. Defendant contends his right to a speedy trial was denied in that there was excessive delay between the time the information was filed and the time that the preliminary hearing was held. The record discloses that the delay complained of was caused by defendant’s court-appointed counsel with defendant’s acquiescence and consent to continuances causing such delay. Defendant has no cause to complain in this regard.
Defendant also assigns as error the failure of the trial court to grant certain continuances requested by him. This court has previously ruled thаt the matter of the granting of a continuance in a criminal case is particularly within the province and the discretionary judgment of the trial court. State v. Coleman,
Defendant also asserts that the trial court erred in failing to reduce the amount of pretrial bail and argues that the amount of bail set in the sum of $8,000 was excessive and in violation of the Constitution of the United States and Article I, section 9, of the Constitution of the State of Nebraska. The issue of excessiveness of prеtrial bail is not reviewable after a conviction and sentence. State v. Watkins,
Having considered all the assignments of error alleged by defendant, and having found none of them to be meritorious so as to entitle him to relief in his appeal to this court, we conclude that the convictions and sentences should be and hereby are affirmed.
Affirmed.
