State v. McCurry

254 N.W.2d 698 (1977) 198 Neb. 673

STATE of Nebraska, Appellee,
v.
Jack D. McCURRY, Appellant.

No. 41101.

Supreme Court of Nebraska.

June 15, 1977.

Herbert M. Sampson, III, Alliance, for appellant.

Paul L. Douglas, Atty. Gen., John R. Thompson, 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 assault with intent to inflict great bodily injury to which he pleaded nolo contendere. The defendant was sentenced by the District Court to a term of 1 year in the Nebraska Penal and Correctional Complex. The defendant appeals contending that his sentence is excessive and that the District Court erred in failing to place him on probation. We affirm the judgment and sentence of the District Court.

In State v. Leal, 198 Neb. 233, 252 N.W.2d 167 (1977), we stated: "This court will not overturn an order or sentence of the trial court which denies probation unless there has been an abuse of discretion."

The presentence investigation report, to which there was no objection, reveals that the defendant had two prior convictions for driving while intoxicated. The defendant after a fracas or altercation involving himself and several others, went to his automobile and deliberately drove it to the left and wrong side of the street in a deliberate effort to hit four people involved in the dispute. Moreover, the automobile, in fact, did injure two of the men. The trial court's express finding that he used the automobile as if it were a shotgun is amply sustained by the evidence. Bearing heavily on the trial court's decision was the seriousness of the offense, and it concluded that a sentence of probation would promote disrespect for the law. On the other hand, the trial court imposed the minimum sentence and such sentence appears to be appropriate in view of all the facts and circumstances.

The record also shows that the District Court reviewed the presentence investigation report several times, carefully considered and weighed the factors tested in section 29-2260, R.R.S.1943, and concluded that incarceration was preferable to probation in this case. The defendant received the minimum sentence for the crime for which he was convicted. § 28-413, R.R.S.1943.

"`Inevitably there are cases in which the decision to grant or not grant probation is one of delicate balance and in those cases the judicial discretion of the trial court should be accorded great weight.'" State v. Liberator, 197 Neb. 857, 251 N.W.2d 709 (1977).

The sentence imposed was within statutory limits and as such will not be disturbed on appeal absent an abuse of discretion. State v. Gillham, 196 Neb. 563, 244 N.W.2d 177 (1976). We find no abuse of discretion.

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

AFFIRMED.