State v. Blankenfeld, 87-661

• Decision Date: 20 May 1988
• Docket Number: No. 87-661,87-661
• Citation: 228 Neb. 611,423 N.W.2d 479
• Parties: STATE of Nebraska, Appellee, v. Jim D. BLANKENFELD, Appellant.
• Court: Nebraska Supreme Court

Page 479

423 N.W.2d 479

228 Neb. 611

STATE of Nebraska, Appellee, v. Jim D. BLANKENFELD, Appellant.

No. 87-661.

Supreme Court of Nebraska.

May 20, 1988.

Syllabus by the Court.

Postconviction: Appeal and Error. Except for the specific provisions set out in Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985), a motion for postconviction relief cannot be used to secure review of issues which were known to defendant at the time of his trial, plea, sentencing, or commitment.

Mariclare Thomas of Oglesby, Brown, Thomas, Peterson & Orton, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Sharon M. Lindgren, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

GRANT, Justice.

This case began in the municipal court of Lincoln (now part of the county court for Lancaster County, see Neb.Rev.Stat. § 24-503 (Cum.Supp.1986)), where defendant was arraigned on May 16, 1984, and charged with driving a motor vehicle while his license was suspended and with driving while intoxicated, third offense. Defendant pled not guilty. On January 24, 1985, defendant pled guilty to the charge of driving while intoxicated, third offense, and the other charge was dismissed. On February 15, 1985, after a presentence investigation, defendant was sentenced to 6 months in the county jail and to pay a fine of $500, and his driver's license was permanently revoked.

Defendant appealed to the district court, where the case was docketed as docket 68, page 58, which is the same district court affirmed the judgement and sentence of the municipal court on June 24, 1985. Defendant appealed from the district court order to this couort, alleging on appeal here only that "[t]he District Court abused its discretion in refusing to place the Appellant on probation" and "in imposing a sentence which was excessive...." When this appeal was presented to this court, the presentence report showed that defendant had been convicted of drunk driving 12 times, refusing to take a chemical test when requested 4 times, and driving while his license was suspended 2 times, and had been charged for such offenses 25 times. He had served county jail terms nine times for periods ranging from 7 days up to 6 months. He had served 1 year in the Nebraska penitentiary in 1974 and two consecutive terms of 1 to 2 years in the penitentiary in 1980.

Defendant's appeal that his 1985 sentence was excessive was denied by this court, and the judgment of the district court was affirmed. The affirmance was made under Neb.Ct.R. of Prac. 7 A (rev.1986), without opinion, and is shown at 221 Neb. xxii (case No. 85-520, Dec. 18, 1985). That judgment and sentence against defendant had thus become final on January 8, 1986, and on that day our mandate was forwarded to the district court. The mandate stated in part:

WHEREAS, in a late action in your court, captioned: State of Nebraska, plaintiff, v. Jim D. Blankenfeld, defendant, you rendered judgment.

And, WHEREAS, the defendant prosecuted an appeal to this court, ON CONSIDERATION WHEREOF, the judgment which you rendered has been affirmed by the Supreme Court....

Now, THEREFORE, you shall, without delay, proceed to enter judgment in conformity with the judgment and opinion of this court.

After the mandate was received, the clerk of the district court signed and filed a commitment in the case as follows:

TO THE SHERIFF OF LANCASTER COUNTY, NEBRASKA:

On March 13, 1985, the County Attorney on behalf of the State of Nebraska, filed a certain complaint against Jim D. Blankenfeld for DWI.

On June 24, 1985, the Court affirmed the judgment of Municipal Court as to the guilt of said defendant.

On June 24, 1985, said defendant was sentenced by the Hon. William D. Blue as follows:

"It is therefore considered, ordered and adjudged by the Court that said defendant is guilty as charged in the complaint filed herein,

Defendant present with attorney S. Brennan. Attorney for plaintiff present. Motion to affirm judgment granted. Judgment affirmed. Sentence imposed as follows: Defendant inprisoned [sic] to County Jail for (6) six months and is fined $500.00 and costs. Defendant ordered not to drive any motor vehicle in Nebraska for any purpose for remainder of defendant's lifefrom [sic] the date of this order, and defendant's operator's license and all privileges of driving a motor vehicle in Nebraska are ordered revoked permanently....

On January 29, 1986 Judge Blue made the following entry: Mittimus to issue. Defendant now is in County Jail on another charge.

YOU ARE THEREFORE ORDERED TO EXECUTE THE SENTENCE AND ORDER OF THE COURT.

Signed and sealed this 29th day of January, 1986.

The nine-page transcript in this case then shows a "Motion To Set Aside Conviction." In that motion, filed June 10, 1987, defendant prays that

the Court set aside the conviction on the above-entitled matter for the reason that sentence was never properly imposed on the Defendant in the instant matter and that it would unconstitutionally deny equal protection under the law to the Defendant, and for usch relief as is permitted by law.

(In passing, we note that this motion was filed in the name of "Jim D. Blankenfeld, Defendant." The notice of appeal, praecipe for transcript, praecipe for bill of exceptions, and statement of the issues are filed in the name of James Blankenfeld. We further note that in 1977, defendant was arrested and gave the arresting office the name of James R. Ferguson. When arrested on December 25, 1986, on the charges set out in our case No. 87-784, defendant's name has been set out as James Blankenfeld and James A. Blankenfeld. So there will be no further confusion, the defendant's name, as shown in the presentence reports available to this court, is Jim Dale Blankenfeld. He is usually charged as Jim D. Blankenfeld, and his current attorney refers to him by the name of "James" or "James A.")

A hearing was held on defendant's motion to set aside his conviction. Evidence was adduced showing defendant's plea in the municipal court of guilty to the charge of driving while intoxicated, third offense, and showing two earlier convictions of defendant. The evidence before the district court further showed that the municipal court judgment and conviction had been affirmed by the district court on June 24, 1985, and sentence imposed identical with that imposed in the municipal court. The evidence also showed that this sentence had been affirmed in this court and that, after our mandate had been sent to the district court, the district court, on January 29, 1986, had directed a mittimus to issue and noted that "Defendant now is in County Jail on another charge." The evidence shows that defendant began to serve the 6-month sentence in this case on February 4, 1986. Defendant completed serving his term on June 23, 1986, after the allowance of 42 days' good time. Defendant also paid the costs and fine imposed.

Then, as set out above, on June 10, 1987, defendant filed the motion to set aside his conviction in this case.

Defendant's sole assignment of error is set out in his brief as the following:

The district court of Lancaster County, Nebraka [sic] erred in ruling that Neb.Rev.Stat, Section 29-613 (Reissue 1985), vested in the district court, acting as an intermediate appellate court, the jurisdictional authority to execute on appellate mandate a judgment...