State v. Roberts

196 N.W.2d 118 (1972) 188 Neb. 209

STATE of Nebraska, Appellee,
v.
Robert Ray ROBERTS, Appellant.

No. 38194.

Supreme Court of Nebraska.

March 24, 1972.

Thomas L. Anderson, Grand Island, for appellant.

Clarence A. H. Meyer, Atty. Gen., Betsy G. Berger, Asst. Atty. Gen., Lincoln, for appellee.

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

SPENCER, Justice.

Defendant, Robert Ray Roberts, pled guilty to Count I, for possession, and Count II, for sale of marijuana. When defendant appeared for sentencing on June 4, 1971, Count I was dismissed, and defendant was sentenced for a period of 2 to 5 years in the Nebraska Penal and Correctional Complex on Count II. This was the penalty and sentence provided for a violation of section 28-472.02, R.S.Supp., 1969, which section was repealed, effective May 26, 1971. The new sections, 28-4,115(14), and 28-4,125(2), R.S.Supp., 1971, became effective May 26, 1971.

Defendant alleges two assignments of error: "1. The District Court erred in imposing a sentence which was contrary to law. 2. The District Court erred in imposing an unduly severe sentence without proper consideration and weight to the facts and circumstances in mitigation of the offense."

This court has recently ruled, in State v. Randolph, 186 Neb. 297, 183 N.W. 2d 225 (1971), and State v. Goham, 187 Neb. 35, 187 N.W.2d 305 (1971), that where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise. This rule applies herein.

We have reviewed the presentence report on the defendant and are satisfied that the trial court did not abuse its discretion in sentencing the defendant to the Nebraska Penal and Correctional Complex.

We affirm the judgment of conviction herein, but modify the sentence to 1 to 5 years in the Nebraska Penal and Correctional Complex.

Affirmed as modified.