State v. Hawkman, 41125
| Decision Date | 01 June 1977 |
| Docket Number | No. 41125,41125 |
| Citation | 254 N.W.2d 90,198 Neb. 578 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Kenneth HAWKMAN, Appellant. |
Syllabus by the Court
1. A motion for a new trial that is not filed within the time specified by statute is a nullity and of no force and effect.
2. The words "unavoidably prevented" as used in section 29-2103, R.R.S.1943, are equivalent in meaning to circumstances beyond the control of the party desiring to file the motion for new trial. The law requires diligence on the part of clients and their attorneys, and the mere neglect of either will not entitle a party to relief on that ground.
3. A sentence within statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.
Magnuson, Magnuson & Peetz, O'Neill, for appellant.
Paul L. Douglas, Atty. Gen., Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
Hawkman pled guilty to assault with intent to commit a robbery, stabbing with intent to wound or maim, assault with intent to inflict great bodily injury, and attempting to steal an automobile. He was sentenced to 5 to 15 years on the first three offenses and 1 year on the fourth, all sentences to run concurrently. Defendant pro se filed a motion for a new trial and a request for appointment of counsel. Counsel was appointed and an amended motion for a new trial was filed. The motion for new trial was overruled and defendant prosecutes this appeal. We affirm.
Defendant acknowledges that his motion for a new trial was filed out of time. Our law is well settled. A motion for a new trial that is not filed within the time specified by statute is a nullity and of no force and effect. State v. Betts, 196 Neb. 572, 244 N.W.2d 195 (1976). Defendant seeks to avoid the consequences of this rule by alleging that he was unavoidably prevented from filing the motion within time.
Section 29-2103, R.R.S.1943, provides that a motion for a new trial must be filed within 10 days after the verdict was rendered unless unavoidably prevented. As early as Roggencamp v. Dobbs, 15 Neb. 620, 20 N.W. 100 (1884), this court said: "The words 'unavoidably prevented' are equivalent in meaning to circumstances beyond the control of the moving party, and do not excuse mere neglect."
In Stanosheck v. State, 168 Neb. 43, 95 N.W.2d 197 (1959), we said:
There is nothing in this record which would permit us...
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Hawkman v. Parratt
...Supreme Court affirmed, holding simply that Hawkman's motion was a nullity because it was inexcusably untimely. State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90, 91-92 (1977). The court also held that the Cherry County district judge did not abuse his discretion in sentencing Hawkman. Id. at 9......
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...prevented" in § 29-2103 as referring to circumstances beyond the control of the party filing the motion for new trial. State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90 (1977). The law requires diligence, and mere neglect will not entitle a party to relief. Id. In Thompson's direct appeal, we r......
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