Bigness v. State
| Decision Date | 16 November 1955 |
| Docket Number | No. 3845,3845 |
| Citation | 289 P.2d 1051,71 Nev. 309 |
| Parties | Glenn N. BIGNESS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan Anglim, Reno, for appellant.
Harvey Dickerson, Atty. Gen., A. Dyer Jensen, Dist. Atty., Washoe County, Reno, for respondent.
In 1937 appellant was arrested in Reno, charged with burglary. He waived preliminary hearing, pleaded guilty to the charge, was sentenced, confined in the state prison and through service of sentence has executed and discharged all penal obligation to this state.
He has continued to offend society, however. When these proceedings were initiated he was confined in New York state. By virtue of prior offenses, including the Nevada burglary, his New York status was that of multiple offender. With an eye to relief from this status, 16 years after the Nevada sentence, these proceedings were brought to have his conviction set aside as unlawfully imposed and void. The time for appeal has long since expired. Habeas corpus is not available to him in this state since he is not confined here. This court has already refused certiorari to review the conviction proceedings. Bigness v. Second Judicial Dist. Ct., 70 Nev. 64, 254 P.2d 447. Appellant in propria persona has now applied directly to the sentencing trial court for a determination that the judgment was null and void and for an order vacating and setting it aside. His petition having been denied he has taken this appeal from the trial court's action and counsel has been assigned to represent him before this court.
Appellant contends that he was neither represented by counsel at the time of arraignment nor did he competently and intelligently waive his right to be so represented; that the court's jurisdiction to proceed to conviction and sentence accordingly was lost. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. The issue upon the merits of this contention is whether appellant competently and intelligently waived his right to counsel. Upon this issue the burden rests upon appellant, Johnson v. Zerbst, supra, and under the circumstances of this case it can hardly be said that the burden has clearly been met. In response to inquiry by the court he expressly rejected counsel. It also appears, however, that during the reported proceedings the nature of his right to counsel was not fully explained to him by the court.
We do not reach the merits of this contention, however. Our problem is a procedural one. Our statutes make no provision for proceedings such as this after such a lapse of time as has occurred here. Appellant in the court below proceeded in this matter by application for a common law writ of error coram nobis. Upon this appeal the state contends that that writ is not now available in this state. Even if it were, however, appellant before this court concedes that the writ as known to the common law is not appropriate to the circumstances of this case since the facts upon which he bases his contention that his conviction was void are a matter of public record and the question is one of law rather than of newly...
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Trujillo v. State
...in custody.5 Nevada has addressed coram nobis only once in any significant fashion in its criminal jurisprudence—Bigness v. State, 71 Nev. 309, 289 P.2d 1051 (1955).6 In Bigness, a recidivist criminal filed a petition for a writ of coram nobis to challenge a 16–year–old Nevada conviction, w......
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Warden, Nevada State Prison v. Peters
...then be construed as a writ of error, coram nobis. While this court has seldom had occasion to consider that writ (see Bigness v. State, 71 Nev. 309, 289 P.2d 1051 (1955)), there does appear to be jurisdiction in the district courts to entertain it. The Nevada Constitution, Art. 6, § 6, pro......
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Butler v. State
...of a petition for a writ of coram nobis to challenge a conviction that the petitioner has previously discharged. Bigness v. State, 71 Nev. 309, 311, 289 P.2d 1051, 1052 (1955) (determining that a petition for a writ of coram nobis was not the appropriate procedure to challenge a conviction ......
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Loucks v. State
...of a petition for a writ of coram nobis to challenge a conviction that the petitioner has previously discharged. Bigness v. State, 71 Nev. 309, 311, 289 P.2d 1051, 1052 (1955) (determining that a petition for a writ of coram nobis was not the appropriate procedure to challenge a conviction ......