dissenting.
I respectfully dissent from that portion of the opinion of the majority that the county court’s sentences were not excessive and, therefore, not an abuse of discretion. The district court, in appellate review, said they were excessive. I agree.
An abuse of discretion “takes place when the sentencing court’s reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.” State v. Philipps, 242 Neb. 894, 898, 496 N.W.2d 874, 877 (1993).
The majority states that “[s]o long as a trial court’s sentence is within the statutorily prescribed limits, is supported by competent evidence, and is not based on irrelevant considerations, an appellate court cannot say that the trial court has abused its discretion . . . .” Citing State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999). What is meant by “supported by competent evidence” is far from clear. The majority goes on to say that a sentence pronounced within statutory limits nearly universally means that there has been no abuse of discretion and that sentences within statutory limits are “‘uniformly and routinely affirmed despite the appellate court’s opinion of the sentence.’ ” Quoting State v. Hopkins, 7 Neb. App. 895, 587 N.W.2d 408 (1998). The majority then concludes: “It is now quite clear that this is the law of Nebraska.”
The above statement is understandable when one considers that in the 8 years of the existence of the Nebraska Court of Appeals, not a single criminal sentence has met the definition of abuse of discretion set forth in Philipps, supra.
This may seem to lead the majority to the conclusion that limitations such as “supported by competent evidence” and “nearly universally” are virtually meaningless and that therefore any sentence — without exception — that is within statutory limits is not an abuse of discretion and thus not excessive.
The problem with such a position is threefold. First, it is inconsistent with, and renders empty, the words of Neb. Rev. Stat. § 29-2308 (Reissue 1995), which states in part:
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 *452sentence 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.
Second, it defeats the very concept of discretion, because a sentence that exceeds its statutory authority is not an abuse of discretion, but is unlawful, null, and void.
Third, it does not recognize that sentencing courts are human and fallible, and thus can impose imperfect judgments, however intended and well meaning they may be.
I cannot accept the majority’s position. The Nebraska Supreme Court has left the door ajar — however slightly. It has not foreclosed any sentence within statutory limits from being excessive, but it strongly suggests it is a rare exception. This case indeed is one of those rare exceptions.
In determining an appropriate sentence, the court must consider in each case the offense and the offender. The majority dismisses the district court’s reasons for adjudging the sentences excessive as not meaningful if the sentence is within statutory limits, but then goes on to recognize the severe injury to Cork and the lack of care of Ruisi to protect Cork (notwithstanding there was no evidence that the dog would bite) as relevant factors to consider. I disagree that the district court’s reasons were irrelevant.
All four of the offenses are city ordinance misdemeanor violations. No proof of vaccination of a dog is tantamount to no proof of a valid driver’s license or failure to carry one’s insurance card in one’s automobile. Regardless of whether the required proof is furnished by the time of sentence, to send a defendant to jail at all, let alone the maximum, is unheard of. While the dog caused a serious injury to Cork, the fact that there was no evidence that the dog had ever bitten anyone before or had any kind of propensity to bite is more relevant than the result of the bite to the nature of the offense.
Ruisi has no prior criminal record. While harboring a dangerous dog requires no criminal intent or guilty knowledge as elements of the crime, the fact that Ruisi had no such intent and had no knowledge or reason to know that the dog would bite are facts which are significant considerations in the sentence.
*453Eleven months in jail for four misdemeanors, the maximum allowed by law, none requiring criminal intent, enforced upon a first time offender of any kind are excessive sentences and an abuse of discretion by any definition.