State v. Fugate

• Decision Date: 29 July 1966
• Docket Number: No. 36259,36259
• Citation: State v. Fugate, 180 Neb. 701, 144 N.W.2d 412 (Neb. 1966)
• Parties: STATE of Nebraska, Appellee, v. Carll Ann FUGATE, Appellant.
• Court: Nebraska Supreme Court

Page 412

144 N.W.2d 412

180 Neb. 701

STATE of Nebraska, Appellee, v. Carll Ann FUGATE, Appellant.

No. 36259.

Supreme Court of Nebraska.

July 29, 1966.

Syllabus by the Court

1. The district court may adopt reasonable procedures for determining what the motion and the files and records in a case show before granting a full evidentiary hearing under the Post Conviction Act.

2. Where an issue of fact is readily determinable by reference to the files and records of the case, an evidentiary hearing upon a motion under the Post Conviction Act may be denied.

3. In an appeal from an order denying an evidentiary hearing upon a motion under the Post Conviction Act, the files and records of the district court which were considered by the district judge in ruling upon the motion shall accompany the transcript filed in this court. The transcript in such a case shall contain a certificate of the district judge identifying the files and records as those which were considered in ruling upon the motion.

4. Where the allegations in a motion under the Post Conviction Act are vague and conclusory in nature, relate to matters which have been fully litigated previously, or are effectively disproved by the record, the motion should be denied.

John McArthur, Merril R. Reller, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before CARTER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and MURPHY, District Judge.

BOSLAUGH, Justice.

The defendants, Caril Ann Fugate, was convicted of first degree murder in 1958 and sentenced to life imprisonment. The judgment was affirmed by this court in Fugate v. State, 169 Neb. 420, 99 N.W.2d 868. A petition for a writ of certiorari was denied by the Supreme Court of the United States in Fugate v. Nebraska, 363 U.S. 851, 80 S.Ct. 1631, 4 L.Ed.2d 1733.

While the first proceeding in error was pending in this court, the defendant filed a motion for new trial upon the ground of newly discovered evidence. The motion was overruled by the trial court and its order was affirmed by this court in Fugate v. State, 169 Neb. 434, 99 N.W.2d 874.

In 1964, a proceeding was commenced in the United States District Court to obtain a writ of habeas corpus to release the defendant from imprisonment. See Fugate v. Ellenson, D.C., 237 F.Supp. 44. While that proceeding was pending, the 1965 Legislature enacted L.B. 836, the Post Conviction Act, Chapter 29, article 30, R.S.Supp., 1965. As a result of this legislation, the proceeding in the United States District Court was dismissed without prejudice to the right of the defendant to seek relief under the new statute. See Ellenson v. Fugate 8 Cir., 346 F.2d 151. The defendant then commenced this proceeding by motion filed in the district court.

The trial court granted the county attorney 5 days in which to show cause why a hearing should not be granted upon the defendant's motion. A return was filed which alleged, in substance, that the defendant's motion and the files and records in the case showed that the defendant was not entitled to any relief. Upon consideration of the motion, and the files and records in the case, the trial court found that the relief requested should be denied and the motion overruled. The defendant's motion for new trial was overruled and she has appealed.

The case is here for review upon the motion and the files and records of the case. In order for this court to review the order of the district court, it is necessary that the files and records of the case, which were considered by the district judge, be available to this court.

The praecipe filed by the defendant in the lower court requested that the transcript include the files and records of the case. However, the transcript filed in this court on this appeal contains only the motion of the defendant filed on June 23, 1965, and pleadings and orders filed after that date. Such a transcript alone is inadequate for the purpose of appellate review of the order entered in this case.

Although it is essential that the files and records of the case be available to this court in cases of this nature, it is not necessary that all of the files and records be copied and certified to this court as a part of the transcript. It is sufficient if the files and records of the case accompany the transcript and the transcript contain a certificate by the district judge identifying the files and records as those which were considered by the court in ruling upon the motion.

In this case, at the request of this court, the files and records of the district court were transmitted to this court by the clerk of the district court. We believe this procedure should be followed in each case where an appeal is taken from an order denying an evidentiary hearing under the Post Conviction Act. Accordingly, we direct that in an appeal from an order denying an evidentiary hearing upon a motion filed under the Post Conviction Act, the files and records of the district court which were considered by the district judge in ruling upon the motion shall accompany the transcript filed in this court. The transcript in such a case shall contain a certificate of the district judge identifying the files and records as those which were considered in ruling upon the motion.

Section 29--3001, R.S.S.upp., 1965, provides that a hearing shall be granted 'Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief * * *.' The defendant contends that where a prisoner alleges facts which, if true, would entitle him to relief, a hearing must be granted upon the motion.

The federal statute (Title 28 U.S.C.A., § 2255, p. 563) contains a provision that a hearing shall be granted 'Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief * * *.' Under this provision, the federal courts have held that a hearing is not required where the motion and the files and records of the case show that the prisoner is not entitled to relief. See, Hodges v. United States, 368 U.S. 139, 82 S.Ct. 235, 7 L.Ed.2d 184; Butle v. United States, 8 Cir., 340 F.2d 63, certiorari denied, 381 U.S. 847, 86 S.Ct. 92, 15 L.Ed.2d 87.

In State v. Woods, 180 Neb. 282, 142 N.W.2d 339, we held that the district court may adopt reasonable procedures for determining what the motion and the files and records show before granting a full evidentiary hearing. Where an issue of fact is readily determinable by reference to the files and records of the case, hearing may be denied. State...