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State v. Rice4/28/2005
reatment, the evaluation performed by the Department of Correctional Services indicates that some form of such treatment would be available to him if he were incarcerated in the custody of the department.
In short, we find nothing in this record which would justify taking a chance that probation will end a 30-year pattern of alcohol abuse and disregard for its legal consequences. Here, protection of the public requires certainty, not chance, and the only certainty we can perceive is that Rice cannot drink and drive while incarcerated.
CONCLUSION
For the reasons discussed, we conclude that the district court abused its discretion by imposing an excessively lenient sentence of probation, and the Court of Appeals erred in affirming the sentence. In this circumstance, Neb. Rev. Stat. § 29-2323 (Reissue 1995) permits an appellate court to set aside the sentence and either (1) remand the cause for imposition of a greater sentence, (2) remand the cause for further sentencing proceedings, or (3) impose a greater sentence. We elect the first option and, therefore, vacate the sentence and remand the cause to the Court of Appeals, directing that court to remand the cause to the district court with instructions to impose a greater sentence. The resentencing should be conducted by one of the current sitting district judges in the Sixth Judicial District or the retired district judge who has been appointed by this court to serve as an active district judge in that district until further order of the court. See State v. Fields, 268 Neb. 850, 688 N.W.2d 878 (2004).
Sentence vacated, and cause remanded with directions.
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