Neb. Rev. Stat. § 29-2308 - Reduction of sentence; conditions; appellate court; powers

• Cite as: Neb. Rev. Stat. § 29-2308

(1) In all criminal cases that now are or may hereafter be pending in the Court of Appeals or Supreme Court, the appellate court may reduce the sentence rendered by the district court against the accused when in its opinion the sentence is excessive, and it shall be the duty of the appellate court to render such sentence against the accused as in its opinion may be warranted by the evidence. No judgment shall be set aside, new trial granted, or judgment rendered in any criminal case on the grounds of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure if the appellate court, after an examination of the entire cause, considers that no substantial miscarriage of justice has actually occurred.

(2) In all criminal cases based on offenses subject to determinate sentencing under subsection (2) of section 29-2204.02, the appellate court may determine that a sentence is excessive because the district court did not provide substantial and compelling reasons for imposing a sentence other than probation.

Cite as Neb. Rev. Stat. § 29-2308

Source: Laws 1887, c. 110, § 1, p. 668; R.S.1913, § 9179; Laws 1921, c. 157, § 1, p. 648; C.S.1922, § 10186; C.S.1929, § 29-2308; R.S.1943, § 29-2308; Laws 1982, LB 722, § 8; Laws 1991, LB 732, § 79; Laws 2015, LB 605,§ 72.

History: Amended by Laws 2015, LB 605,§ 72, eff. 8/30/2015.

1. Scope

2. Reduction of sentence

3. Harmless error

4. Substantial miscarriage of justice

1. Scope

Whether an assigned error is prejudicial, requiring reversal, is at issue in every appeal. State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).

When determining whether to impose probation, the trial court must consider the factors set forth in section 29-2260. On appeal, an appellate court must likewise consider section 29-2260 in determining whether probation may be imposed, whether reviewing a sentence for excessiveness pursuant to this section or for leniency under section 29-2322. State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).

In a nondeath sentence an appellate court will not conduct a de novo review to determine whether a sentence is proportionate and thus appropriate; rather, a sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion. State v. Philipps, 242 Neb. 894, 496 N.W.2d 874 (1993).

It is the duty of an appellate court to disturb a sentence on appeal which was within the statutory limits only if the sentence imposed was an abuse of judicial discretion. "Judicial abuse of discretion" means that the reasons or rulings of the trial judge are clearly untenable and deny a just result to the defendant. State v. Riley, 242 Neb. 887, 497 N.W.2d 23 (1993).

When a sentence imposed by a court is within statutory limits, an appellate court will not disturb the sentence unless there has been an abuse of discretion. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).

In considering whether or not to reduce a sentence on the grounds of alleged excessiveness, a sentencing judge is required to have only an open mind, not an empty one. State v. Christensen, 213 Neb. 820, 331 N.W.2d 793 (1983).

Sentence of eighteen months for attempted robbery affirmed; absent an abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal. State v. Last, 212 Neb. 596, 324 N.W.2d 402 (1982).

Effective sentence of one to two years imprisonment for conviction of manslaughter not excessive. State v. Rice, 198 Neb. 758, 255 N.W.2d 282 (1977).

In absence of abuse of discretion, a sentence imposed within statutory limits will not be disturbed on appeal. State v. Gillham, 196 Neb. 563, 244 N.W.2d 177 (1976).

Were the sentencing herein made concurrent with defendant's present sentence, it would be tantamount to defendant receiving no sentence at all and the court's refusal to do so was not an abuse of discretion. State v. Erving, 193 Neb. 667, 228 N.W.2d 619 (1975).

This section is not a directive to reduce a sentence whenever asked, but only where the trial court has abused its judicial discretion and fixed a penalty which is clearly excessive. State v. Orner, 192 Neb. 523, 222 N.W.2d 819 (1974).

Where record fails to show factors claimed to require modification of sentence, it will not be modified. State v. Cano, 191 Neb. 709, 217 N.W.2d 480 (1974).

The Supreme Court may reduce a sentence which in its opinion is excessive and it is then its duty to render such sentence as the evidence warrants. State v. West, 188 Neb. 579, 198 N.W.2d 204 (1972).

When in the opinion of the Supreme Court, a sentence is excessive or not warranted by the evidence, this section contemplates correction on appeal. State v. Etchison, 188 Neb. 134, 195 N.W.2d 498 (1972).

A technique for deterrence of crime is scaling of penal sanctions. State v. Keck, 187 Neb. 794, 194 N.W.2d 186 (1972).

Unless an abuse of discretion appears, sentence within statutory limits will not be disturbed. State v. Morosin, 187 Neb. 521, 192 N.W.2d 165 (1971).

Supreme Court may substitute lower sentence. State v. Leadinghorse, 187 Neb. 386, 191 N.W.2d 440 (1971).

The penalty under an amendatory statute enacted before the actual trial, but after commission of the prohibited act, may be applied under this section where the sentence had not become final because an appeal was pending. State v. Goham, 187 Neb. 34, 187 N.W.2d 305 (1971).

Supreme Court may reduce sentence when in its opinion the sentence is excessive. State v. Dixon, 186 Neb. 143, 181 N.W.2d 250 (1970); Havlicek v. State, 101 Neb. 782, 165 N.W. 251 (1917).