State v. Laravie, 39508
| Decision Date | 21 November 1974 |
| Docket Number | No. 39508,39508 |
| Citation | 192 Neb. 625,223 N.W.2d 435 |
| Parties | STATE of Nebraska, Appellee, v. Antonio Almio LARAVIE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
Under present statutes, upon conviction for second degree murder, the court is not authorized to pronounce an indeterminate sentence. The court may impose a sentence of a definite term of years, not less than the minimum authorized by law; or, in the alternative, may impose a sentence of life imprisonment.
Leo M. Williams, Bloomfield, for appellant.
Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
The defendant was charged with first degree murder and pleaded guilty to a reduced charge of second degree murder. The District Court sentenced the defendant to imprisonment for indeterminate term of not less than 35 years nor more than life.
The statement of facts is summarized from evidence and testimony received at the sentencing hearing. The defendant, Antonio Almio Laravie, was born April 16, 1958; was married November 15, 1972; and is the father of a child born December 27, 1972. On August 17, 1973, beginning at about noon, the defendant, along with various friends and relatives, began a drinking bout which proceeded from bar to bar and residence to residence until approximately 4 a.m. on the morning of August 18, 1973. By then there were four persons still present at the residence of Edward Taylor in Niobrara, Nebraska. The defendant left the Taylor residence, alone and on foot, purportedly to make a telephone call at a public telephone some 6 blocks away. The defendant then entered the house of Mr. and Mrs. Chad Wilson, located about 1 1/2 blocks from the Taylor residence. He gained access through a hooked screen door, and picked up a knife in the kitchen. He went into a bedroom. In the bedroom, the Wilson's 2 1/2-year-old child woke up and made a noise. The defendant put his hand over the child's mouth and stabbed him twice in the chest. The autopsy report shows that death was the result of one of the wounds in the chest, and that death occurred virtually instantaneously.
The court, in passing sentence, found that the defendant was a particularly dangerous offender, and that confinement for a minimum term was necessary in order to protect the public from further criminal activities by the defendant.
The sole thrust of the appeal is that the trial court was without authority to impose an indeterminate sentence in this case and that the sentence is therefore erroneous.
Section 83--1,105, R.S.Supp., 1972, provides: 'Except where a term of life is required by law, in imposing an indeterminate sentence upon the offender, the court may:
'(1) Fix the minimum and maximum limits of the sentence, but the minimum limit fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term, and the maximum limit shall not be greater than the maximum provided by law;
'(2) Impose a definite term of years, in which event the maximum term of the sentence shall be the term imposed by the court and the minimum term shall be the minimum sentence provided by law; or * * *.'
This statute currently governs the imposition of an indeterminate sentence in Nebraska. In State v. Suggett, 189 Neb. 714, 204 N.W.2d 793, this court held that subsection (1) of section 83--1,105, R.S.Supp.1972, is not applicable in cases where the maximum sentence fixed by law is a life sentence. This court said: ...
To continue reading
Request your trial
-
State v. Palmer
...found several months later. The bones of the body were scattered throughout a pasture, apparently by the coyotes. * State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974). Date of Sentence: December 20, The defendant, though only 15 years of age, was married with a child. He had been drinkin......
-
State v. Secret
...58 (1994); State v. Ward, 226 Neb. 809, 415 N.W.2d 151 (1987); State v. Moss, 219 Neb. 327, 363 N.W.2d 367 (1985); State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974). In 1993, the Legislature amended Neb.Rev.Stat. § 29-2204 (Supp.1993), which, effective September 9, 1993, specifically al......
-
State v. Harper
...chest near his right shoulder, severing his trachea and several arteries. The victim died almost instantaneously. In State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974), the defendant was charged with first degree murder and pled guilty to a reduced charge of second degree murder. He was ......
-
State v. Rouse
...than a sentence for a definite term of years not less than 10, or for a term of life, contrary to our holding in State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974). The defendant raises this error for the first time on appeal from the denial of his motion for post conviction relief. The ......