State v. Kiser , 194 Neb. 513 ( 1975 )

233 N.W.2d 571 (1975) 194 Neb. 513

STATE of Nebraska, Appellee,
v.
Chris E. KISER, Appellant.

No. 39991.

Supreme Court of Nebraska.

October 9, 1975.

Frank B. Morrison, Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON and CLINTON, JJ., and KUNS, Retired District Judge.

BOSLAUGH, Justice.

The defendant in this case was charged with receiving, buying, or concealing an automobile knowing it to have been stolen. The offense consisted of stealing a pickup truck by "hot-wiring" it. The defendant and two companions were arrested several days later in Aurora, Nebraska, after the truck had broken down. On April 26, 1974, upon a plea of nolo contendere, the defendant was placed on 3 years' probation.

On August 24, 1974, after the defendant had been on probation for about 4 months, he was found in the front seat of an automobile in a used car lot at 5:58 a. m. A window in the car had been broken, the ignition wires cut, and the ignition removed. The defendant admitted that he was trying to remove the automobile from the lot.

The defendant pleaded guilty to violation of probation and was sentenced to imprisonment for 2 to 10 years. The defendant has appealed and contends the sentence was excessive.

The defendant is 19 years of age and single. He has a tenth grade education. His arrest record includes burglary for which he was sentenced to 60 days in jail.

Section 28-522, R.R.S.1943, provides a penalty of 1 to 10 years' imprisonment for the offense for which the defendant was convicted. Ordinarily, the defendant's youth would indicate the sentence should be something less than the statutory maximum. Here the defendant attempted to repeat the same offense after only 4 months' probation. The trial court probably thought the penal authorities should have a great deal of flexibility in dealing with the defendant. Under the circumstances we conclude the indeterminate sentence imposed was not excessive.

Affirmed.