State v. Flaherty

226 N.W.2d 631 (1975)

193 Neb. 275

STATE of Nebraska, Appellee, v. Jon FLAHERTY, Appellant.

No. 39673.

Supreme Court of Nebraska.

March 6, 1975.

*632 Richard P. Garden, Norfolk, for appellant.

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

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

McCOWN, Justice.

The defendant pleaded guilty to a charge of delivery of a controlled substance, first offense, and was sentenced to 5 years imprisonment. The sole issue on this appeal is whether or not the sentence is excessive.

The defendant was initially charged with delivery of a controlled substance (LSD), second offense. Pursuant to the terms of a plea bargain the information was amended to charge only a first offense. The defendant pleaded guilty to the amended charge.

The record establishes that the defendant was placed on probation on a prior charge of delivery of cocaine only 9 days before his arrest on the charge here. The prosecution in this case offered to recommend a lesser sentence than 5 years if the defendant would testify as to where he obtained the LSD involved. The defendant refused and the prosecution recommended the 5-year sentence which the court imposed. The statutory range of sentence on this charge is 1 to 10 years.

Under the provisions of section 28-4,125(2) and 83-1,105(2), R.S.Supp.1974, the 5-year term imposed here becomes an indeterminate sentence of 1 to 5 years. In the absence of an abuse of discretion a sentence imposed within statutory limits will not be disturbed on appeal. State v. Palmer, 191 Neb. 540, 216 N.W.2d 178. The record here fully supports the action of the District Court. There was clearly no abuse of discretion.

Affirmed.