State v. Ward

Annotate this Case

415 N.W.2d 151 (1987)

226 Neb. 809

STATE of Nebraska, Appellee, v. Kevin J. WARD, Appellant.

No. 87-511.

Supreme Court of Nebraska.

November 6, 1987.

*152 Charles F. Fitzke, Scotts Bluff County Public Defender, for appellant.

Robert M. Spire, Attorney General, and LeRoy W. Sievers, Lincoln, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

PER CURIAM.

Defendant, Kevin J. Ward, was adjudged guilty of second degree murder and ordered to "serve an indeterminate sentence of thirteen to sixteen years" at the Nebraska Penal and Correctional Complex. He appeals and assigns that sentence as error, which the State has confessed by filing a motion to correct the same.

Neb.Rev.Stat. § 28-304(2) (Reissue 1985) defines murder in the second degree as a Class IB felony. The penalty authorized by Neb.Rev.Stat. § 28-105 (Reissue 1985) for such a felony is "Maximum-life imprisonment Minimum-ten years imprisonment." We have therefore held that a court is not authorized to sentence one convicted of second degree murder to an indeterminate sentence, but must sentence such a person to imprisonment either for life or for a definite term of not less than 10 years. State v. Moss, 219 Neb. 327, 363 N.W.2d 367 (1985); State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974).

As the sentence imposed upon the defendant is clearly invalid, defendant's assignment of error is sustained.

Accordingly, the sentence is vacated and the cause remanded to the district court for resentencing.

SENTENCE VACATED, AND CAUSE REMANDED FOR RESENTENCING.