State v. Moss , 219 Neb. 327 ( 1985 )

363 N.W.2d 367 (1985) 219 Neb. 327

STATE of Nebraska, Appellee,
v.
Clyde W. Moss, Sr., Appellant.

No. 84-615.

Supreme Court of Nebraska.

February 15, 1985.

Jack Zitterkopf and John B. McDermott of McDermott, Depue & Zitterkopf, Grand Island, Neb., for appellant.

Paul L. Douglas, Atty. Gen., and L. Jay Bartel, Lincoln, Neb., for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ.

PER CURIAM.

This is an appeal in a criminal case. The defendant was charged with first degree murder and pled guilty to the charge of murder in the second degree. Neb.Rev. Stat. § 28-304(1) (Reissue 1979). The defendant was sentenced to a term of life imprisonment, "but in any event not less than 20 years," in the Nebraska Penal and Correctional Complex.

The defendant appeals and assigns as error that the court erred in pronouncing an indeterminate sentence not authorized by law, and therefore invalid, and that the sentence as pronounced was excessive.

We remand the cause to the district court for resentencing. We held in State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981), and State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974), that under the present statute upon conviction for second degree murder the court is not authorized to pronounce an indeterminate sentence. The court may impose a definite term of years not less than the minimum authorized by law or, in the alternative, may impose a sentence of life imprisonment.

As the sentence is clearly invalid, the cause must be remanded for resentencing, and we therefore do not consider the second assignment of error.

AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR RESENTENCING.