dissenting in part.
I agree with the court’s disposition of all issues in this case, but I dissent from the court’s determination that it is not necessary to reach the question of the excessiveness of the sentence imposed on defendant. I think the sentence is excessive and the trial court should be so advised before resentencing defendant.
The presentence investigation shows that this 32-year-old, married defendant with a child has never before been found guilty of any criminal or traffic charge (misdemeanor or felony) either as a juvenile or as an adult, nor has he ever been arrested for any offense. He operates his own bar business, and has no history of alcohol or drug abuse. To impose on a first-time offender a bizarre sentence stretching over a 1-year period (which this court has determined is an erroneous sentence) is an abuse of discretion, in my judgment, particularly when the sentencing judge relies, in part, on his belief that gambling “is not a victimless act.” Whether that statement is true or not, I do not believe that such a personally held concept should be used as a reason for such a lengthy sentence for a first-offense, nonviolent crime. It is certainly within the knowledge of the *816sentencing judge that the State has officially sanctioned many forms of gambling; that, among other things, pickle parlors proliferate, resulting in the filing of lawsuits to protect the business interests in operating such parlors; and that one of the statutes under which defendant was prosecuted provides for punishment only for enterprises “not conducted pursuant to .. . the Nebraska Bingo Act, the Nebraska Pickle Card Lottery Act, [or] the Nebraska Lottery and Raffle Act.” The voters of this State have recently authorized a constitutional amendment permitting interstate wagering in certain places.
It is clear that defendant has deliberately violated the laws of this State, but in my judgment, there is no reason not to use the probation system, in a situation for which it was designed, to attempt to help this defendant straighten out his life, as was done in State v. Trahan, 229 Neb. 683, 428 N.W.2d 619 (1988). In that case, the defendant Trahan had an alcohol and drug problem and had two prior convictions for drunk driving. He was placed under an intelligently designed probation plan for 3 years, together with a 90-day sentence, in an effort to return that defendant to a productive life. Trahan had been found guilty of possession of cocaine, possession of gambling records, and promoting gambling.
If it were determined that probation was not appropriate, then 30-day concurrent sentences, together with the large fines imposed, are more than adequate to correct defendant’s conduct to conform to legal standards. If such probation or imprisonment did not lead defendant to correct his ways, then the draconian measures imposed might have some merit. The sentencing judge and the probation officer who recommended incarceration should know the severe impact of a relatively short jail term on a person who has never been involved at all in the criminal justice system. Similarly, they should know the effect of a lengthy sentence on this defendant and his dependents.
I would affirm defendant’s conviction, but remand the cause for resentencing on the grounds that the sentence, as imposed, is both erroneous and excessive.