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State v. Behrens

Supreme Court of Nebraska
Nov 20, 1979
285 N.W.2d 513 (Neb. 1979)

Summary

In State v. Behrens, 204 Neb. 785, 285 N.W.2d 513 (1979), the Nebraska court interpreted its statute, R.R.S. 1943 § 292262(j), which empowered the court to impose restitution for "the loss or damage caused..."

Summary of this case from Com. v. Balisteri

Opinion

No. 42661.

Filed November 20, 1979.

1. Criminal Law: Statutes: Sentences: Probation. Section 29-2262, R.R.S. 1943, authorizes confinement in the county jail for a period not to exceed 90 days as a condition of probation in cases of conviction of a misdemeanor as well as of a felony. 2. Appeal and Error: Evidence: Records. Any assignment of error which requires an examination of the evidence cannot prevail on appeal in the absence of a bill of exceptions. 3. Criminal Law: Statutes: Probation: Assault and Battery. A statute providing that as a condition to a sentence of probation the court may require a person convicted of assault to make reparation for the loss or damage caused by the crime empowers the trial court to impose a condition requiring a reasonable payment to the victim for "pain and suffering," in addition to medical expenses and lost wages. There is no abuse of discretion in imposing such condition.

Appeal from the District Court for Holt County: HENRY F. REIMER, Judge. Affirmed.

Forrest F. Peetz, for appellant.

Paul L. Douglas, Attorney General, and Harold Mosher, for appellee.

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


The defendant was charged in the District Court for Holt County, Nebraska, with the crime of assault with intent to inflict great bodily injury. He was tried by a jury and found guilty of the lesser offense of assault and battery. He received a sentence of 2 years probation, subject, among others, to the following conditions: (a) He shall be confined in the Holt County jail for 90 days with no credit for prior time in confinement. (b) He shall refrain from frequenting unlawful or disreputable places or consorting with disreputable persons, and he shall consume no alcohol in public or appear in public after consuming alcohol. Any peace officer or probation officer having reasonable cause to believe the defendant may have violated this provision shall forthwith bring him before the court for a hearing on said violation. (c) He shall make restitution of the fruits of his crime in the amount of $160.50 to Western Insurance Company for medical bills and the amount of $500 to Dr. Julian Pickens for pain and suffering, and court costs.

On appeal to this court, the defendant assigns and argues the following errors: (1) The sentence, including the 90-day jail term, is excessive and, in particular, the court abused its discretion in not giving credit for "prior jail time." (2) It was an abuse of discretion for the court to require that the defendant not be allowed to consume alcohol in public nor be allowed to appear in public after having consumed alcohol. (3) The court abused its discretion in requiring that, as a condition of probation, the defendant pay to the victim of the assault the sum of $500 as compensation for pain and suffering. We affirm.

In support of his first assignment, the defendant advances several arguments: (1) Jail time is not an authorized condition of probation in misdemeanor cases. (2) In cases where the maximum penalty for conviction of a misdemeanor is 90 days, the imposition of a 90-day jail term, together with probation, exceeds the maximum sentence authorized by law. (3) Under the holding of this court in State v. Nuss, 190 Neb. 755, 212 N.W.2d 565, confinement may not be made a condition of probation. (4) If the defendant should violate the conditions of his probation, he could be sentenced to the maximum term of 6 months for assault and battery. In that event, the total jail time would exceed the maximum sentence authorized by law. (5) The sentence is excessive under the circumstances.

The defendant's first argument is ill-founded. It is apparent the statutes expressly contemplate that the authorized conditions for probation described in section 29-2262, R.R.S. 1943, are applicable to misdemeanor convictions. Section 29-2260(2), R.R.S. 1943, provides in part: "Whenever a court considers sentence for an offender convicted of either a misdemeanor or a felony, the court may withhold sentence of imprisonment unless, . . . ." That statute, in subsection (4), then authorizes a sentence of probation in lieu of imprisonment. Section 29-2262, R.R. S. 1943, expressly authorizes jail time as a condition of probation. The two statutes are part of the same act and must be construed together. We hold that section 29-2262, R.R.S. 1943, authorizes confinement in the county jail as a condition of probation in the case of a conviction of a misdemeanor.

Arguments (2) and (4) above are hypothetical. The maximum jail sentence for assault and battery is 6 months. The jail time of 90 days, together with the sentence of probation, does not exceed the maximum authorized by law. The question posed by argument (4) will arise only if the defendant violates the terms of his probation and then receives a sentence. The problem raised is simply not before us at this time. As to argument (3), our holding in State v. Nuss, supra, is not applicable. The 1975 amendment to section 29-2262, R.R.S. 1943, authorizing jail time as a condition of probation, was the specific legislative response to State v. Nuss, supra.

As to the defendant's fifth argument, we note there was no bill of exceptions filed in this case. We do not know the details and circumstances of the assault. Any assignment of error which requires an examination of the evidence cannot prevail on appeal in the absence of a bill of exceptions. Hanson v. Hanson, 198 Neb. 675, 254 N.W.2d 699; State v. Griger, 190 Neb. 405, 208 N.W.2d 672. However, the presentence investigation is in the record before us. An examination of that report, which includes information as to the defendant's past criminal record, clearly indicates the court did not abuse its discretion in imposing the sentence it did.

The defendant's claim that the court abused its discretion in restricting the defendant's use of alcohol is clearly unmeritorious. The presentence investigation indicates conclusively the abuse of alcohol is a major factor contributing to the defendant's unsocial conduct.

The contention that the court erred in requiring the defendant to pay to the victim of his assault the sum of $500 as compensation for pain and suffering is not sustainable. The imposition of such a condition comes within the terms of condition (j) of section 29-2262, R.R.S. 1943, which provides in part: ". . . to make such reparation as the court determines to be appropriate for the loss or damage caused" by the crime.

The Court of Appeals of the State of Washington, in answering a similar contention under a virtually identical statutory provision, held that a statute providing that, as a condition to suspension of sentence, a court may require a convicted person to make restitution to any person or persons who have suffered loss or damage by reason of the commission of the crime in question, empowered the trial court, as a condition of suspending sentence upon a conviction of assault in the third degree, to require restitution to the victim for pain and suffering, in addition to medical expenses and lost wages, and there was no abuse of discretion in imposing such condition. State v. Morgan, 504 P.2d 1195 (Wash. App., 1973). In the absence of a bill of exceptions we cannot, of course, make any judgment that the amount is excessive.

AFFIRMED.


Summaries of

State v. Behrens

Supreme Court of Nebraska
Nov 20, 1979
285 N.W.2d 513 (Neb. 1979)

In State v. Behrens, 204 Neb. 785, 285 N.W.2d 513 (1979), the Nebraska court interpreted its statute, R.R.S. 1943 § 292262(j), which empowered the court to impose restitution for "the loss or damage caused..."

Summary of this case from Com. v. Balisteri
Case details for

State v. Behrens

Case Details

Full title:STATE OF NEBRASKA, APPELLEE, v. CORY BEHRENS, APPELLANT

Court:Supreme Court of Nebraska

Date published: Nov 20, 1979

Citations

285 N.W.2d 513 (Neb. 1979)
285 N.W.2d 513

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