State v. Muggins, 39368

• Decision Date: 10 October 1974
• Docket Number: No. 39368,39368
• Citation: 222 N.W.2d 289,192 Neb. 415
• Parties: STATE of Nebraska, Appellee, v. Jerry MUGGINS, Appellant.
• Court: Nebraska Supreme Court

Page 289

222 N.W.2d 289

192 Neb. 415

STATE of Nebraska, Appellee, v. Jerry MUGGINS, Appellant.

No. 39368.

Supreme Court of Nebraska.

Oct. 10, 1974.

Syllabus by the Court

1. A sentencing court in prescribing probation may impose any conditions of probation that it is authorized by statute to impose.

2. This court will disturb an order of probation only where it appears from the record that in executing such order the sentencing court imposed a condition or conditions of probation which it was not authorized by statute to impose.

3. A requirement that one convicted of driving while intoxicated attend and complete an 'Alcohol Abuse Course' established under sections 39--669.31 and 39--669.32, R.R.S.1943 (Reissue of 1974), is a valid condition of probation under section 29--2262(2)(e) and (m), R.S.Supp., 1972.

4. A condition of probation that one convicted of driving while intoxicated pay the fee for an Alcohol Abuse Course is presumptively valid as reasonably related to the rehabilitation of the offender, and will not be disturbed on appeal, absent a showing in the record that the fee charged is unreasonable in amount or unduly onerous to probationer.

Zane M. Pic, Greeley, Colo., for appellant.

Clarence A. H. Meyer, Atty. Gen., Steven C. Smith, Special Asst. Atty. Gen., Lincoln, for appellee.

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

BRODKEY, Justice.

The appellant, Jerry Muggins, pleaded guilty on September 26, 1973, in the county court of Scotts Bluff County, Nebraska, to the charge of driving while intoxicated and on that date was placed on probation. Among the conditions of probation imposed by the county judge were provisions requiring appellant to attend the Alcohol Safety Action Program, sometimes referred to as the Alcohol Abuse Course, and also to pay the fee for the course in the sum of $100. Appellant was also ordered to pay a fine of $100 and the court costs. He appealed from the order of probation to the District Court, which court found that his appeal was without merit, dismissed the appeal, and affirmed the proceedings in the county court. Appellant's motion for a new trial was overruled and he thereafter perfected his appeal to this court. In his brief on appeal, he assigns five errors which we summarize as follows: (1) The court erred in not deciding that a sentencing court has no inherent power to grant probation, but only has that probationary power conferred by statute; (2) the court erred in not deciding that the $100 cost of the Alcohol Safety Action Program was penal in nature in the absence of any showing that the cost of such program was incurred by anyone, and further that the cost was ascertainable, susceptible of proof, and reasonably related to the rehabilitation of the offender; (3) the court erred in not deciding there must be 'notice' and hearing afforded to the offender to determine whether he had the ability to pay; (4) that the sentencing court was without power to impose the $100 penalty, which was tantamount to a fine, and even if it had, the money must be distributed to the schools in Scotts Bluff County rather than to the Alcohol Safety Action Program under Article VII, section 5, Constitution of Nebraska; and (5) the court erred by not ruling that the portion of sections 39--727, 39--727.21 and 39--727.22, R.S.Supp., 1973, proving alternative penalties for first offense driving while intoxicated is unconstitutional as working a denial of equal protection under the Fourteenth Amendment to the United States Constitution.

The bill of exceptions filed in this appeal consists only of the order of probation entered in the county court by the judge thereof at the time of sentencing. There is no evidence contained therein of any nature, and specifically with regard to the Alcohol Safety Action Program, whether or not in this case such program, if any, was certified, nor any evidence with reference to how the fee charged for the program was computed, or the money distributed. Nor is there any evidence in the record that any issue of constitutionality was raised in either the county or District Courts. Moreover, in his motion for new trial, appellant alleged only that there is new authority for the proposition that there is no inherent power to impose conditions of probation and that the power is a statutory power only. In view of the state of the record, therefore, it is clear that we may only consider on this appeal assignment of error No. (1). State v. Haile, 185 Neb. 421, 176 N.W.2d 232 (1970); Kennedy v. State, 170 Neb. 193, 101 N.W.2d 853 (1960); State v. Seger, 191 Neb. 760, 217 N.W.2d 828 (1974); State v. Griger, 190 Neb. 405, 208 N.W.2d 672 (1973); Mitchell v. State, 159 Neb. 638, 68 N.W.2d 184 (1955); State v. Schwade, 177 Neb. 844, 131 N.W.2d 421 (1964).

It is clear, of course, that a sentencing court in prescribing probation may impose any conditions of probation that it is authorized by statute to impose. State v. Nuss, 190 Neb. 755, 212 N.W.2d 565 (1973). As a consequence, this court will disturb an order of probation only where it appears from the record that in executing such order the sentencing court imposed a condition or conditions of probation which it was not authorized by statute to impose. The order of probation in this case indicates that the conditions of appellant's probation were imposed upon his pursuant to section 29--2262, R.S.Supp., 1972. Tha...