State v. Bosak , 207 Neb. 693 ( 1981 )

300 N.W.2d 201 (1981) 207 Neb. 693

STATE of Nebraska, Appellee,
v.
Mark A. BOSAK, Appellant.

No. 43690.

Supreme Court of Nebraska.

January 9, 1981.

Thomas B. Thomsen of Sidner, Svoboda, Schilke, Wiseman & Thomsen, Fremont, for appellant.

Paul L. Douglas, Atty. Gen., and Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

PER CURIAM.

The defendant herein pleaded guilty to a charge of possession of lysergic acid diethylamide in violation of Neb.Rev.Stat. § 28-416(1)(a) (Reissue 1979). Lysergic acid diethylamide is a nonnarcotic Schedule I drug. Neb.Rev.Stat. § 28-405 (Reissue 1979). As such, it is a Class IV felony. Neb.Rev.Stat. § 28-416(2)(b) (Reissue 1979). Punishment for a Class IV felony is a maximum sentence of 5 years imprisonment or $10,000 fine, or both, with no minimum. Neb.Rev.Stat. § 28-105 (Reissue 1979). The trial court sentenced the defendant to a term of imprisonment for not less than 2 years and not more than 5 years. On appeal, the State concedes that where an indeterminate sentence is pronounced, the minimum limit fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term. Neb.Rev.Stat. § 83 1,105(1) (Reissue 1976).

Insofar as any other errors, except the sentence, are concerned, no motion for new trial was filed in this case; therefore, the only issue before us is whether the sentence was excessive. State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979). The presentence report indicates that the trial court did not abuse its discretion when imposing imprisonment in lieu of probation. We have frequently held that, absent an abuse of discretion by the trial court in sentencing within statutory limits, this court will not disturb the action of the trial court on appeal. State v. Hortman, 207 Neb. 393, 299 N.W.2d 187 (1980); State v. Tweedy, 197 Neb. 851, 251 N.W.2d 380 (1977). In view of the fact that the sentence was more than one-third of the maximum term, however, it must be reduced. The sentence is modified to provide that the defendant shall be confined to the Nebraska Penal and Correctional Complex for a term of not less than 1 year 8 months and not more than 5 years.

AFFIRMED AS MODIFIED.