State v. Leal , 198 Neb. 233 ( 1977 )

252 N.W.2d 167 (1977) 198 Neb. 233

STATE of Nebraska, Appellee,
v.
Luis H. LEAL, Appellant.

No. 40941.

Supreme Court of Nebraska.

April 6, 1977.

Benjamin M. Shaver, Scottsbluff, for appellant.

Paul L. Douglas, Atty. Gen., Paul W. Snyder, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.

PAUL W. WHITE, Chief Justice.

The defendant was charged with the felony of driving while intoxicated, third offense. After a jury trial, he was found guilty. The District Court, at a subsequent hearing, determined that such offense was his third offense and sentenced the defendant to a term of 1 years imprisonment in the Nebraska Penal and Correctional Complex. We affirm the judgment and sentence of the District Court.

The sole assignment of error is that the sentence is excessive. The defendant contends that he should have received probation. "This court will not overturn an order or sentence of the trial court which denies probation unless there has been an abuse of discretion." State v. Stahl, 197 Neb. 683, 250 N.W.2d 639 (1977). The presentence report indicates that past attempts with probation have been unsuccessful in altering defendant's conduct. The defendant received the minimum sentence, within statutory limits, for the crime for which he was charged and convicted. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. State v. Holloman, 197 Neb. 139, 248 N.W.2d 15 (1976). We cannot say that the District Court has abused its discretion in sentencing the defendant as it did.

The judgment and sentence of the District Court are correct and are affirmed.

AFFIRMED.