State v. Konvalin, 36413
| Decision Date | 31 March 1967 |
| Docket Number | No. 36413,36413 |
| Parties | STATE of Nebraska, Appellee, v. Dale Leroy KONVALIN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Under the facts and circumstances in this case, the failure to appoint counsel for the defendant at the time of the preliminary hearing was not a denial of procedural due process or a violation of the defendant's constitutional right to the assistance of counsel.
2. The want of effective counsel is not measured alone by the result obtained. Where an examination of the evidence and trial proceedings shows that the claim is not based on fact, the claim will not be sustained.
3. In the absence of statutory authorization, the fees and expenses allowed counsel appointed to represent an indigent prisoner under the Post Conviction Act cannot be taxed as costs against the prisoner.
Owen A. Giles, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
This is a proceeding under the Post Conviction Act. The defendant, Dale Leroy Konvalin, was convicted of robbery and assault with intent to commit rape. The conviction was affirmed in State v. Konvalin, 179 Neb. 95, 136 N.W.2d 227.
The defendant filed a lengthy motion to vacate and set aside the conviction and sentence. The allegations contained in the motion may be summarized as a complaint that the defendant was denied the effective assistance of counsel. After an evidentiary hearing, at which the defendant was represented by counsel, the trial court found generally against the defendant and overruled the motion. The defendant has appealed.
The preliminary hearing in the criminal case was held on April 30, 1964. The defendant was not then represented by counsel although the hearing had been continued previously for the purpose of allowing the defendant to obtain counsel. The defendant stated that he was ready to proceed if a court reporter was obtained. A court reporter was obtained, the hearing was held, and the defendant was bound over to the district court. The defendant made no admissions and did not testify. Under these circumstances, the failure to provide counsel for the defendant at the time of the preliminary hearing was not a denial of procedural due process or a violation of the defendant's constitutional right to the assistance of counsel. State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428.
The information was filed in the district court on May 1, 1964. On May 18, 1964, the defendant was taken before the district court for the appointment of counsel. The defendant stated that his brother was going to arrange for private counsel. The trial court appointed the public defender to represent the defendant with the understanding that the defendant could obtain private counsel if he was able to do so.
On May 26, 1964, the defendant was taken before the district court for the purpose of setting a trial date. The public defender was present. The defendant had not obtained private counsel and was complaining that his brother and niece had not been allowed to visit him. At the defendant's request the trial was continued until the fall term.
On September 9, 1964, the defendant was taken before the district court for arraignment. The defendant had not obtained private counsel and was represented by the public defender. The defendant pleaded not guilty and the case was set for trial on September 14, 1964. The trial court instructed the sheriff to allow the defendant to make whatever telephone calls he might want to make and directed the public defender to assist the plaintiff.
With the assistance of the public defender, arrangements were made for Thomas D. Carey to represent the defendant. Before Mr. Carey had an opportunity to confer with the defendant, L. S. Cornett, a bondsman, commenced an action against the defendant and caused a summons in garnishment to be served upon the sheriff. As a result of the garnishment proceeding, the sum of $370 that was in the hands of the sheriff, and available to the defendant for the purpose of hiring counsel, became unavailable for that purpose. Mr. Carey then withdrew from the case.
The case proceeded to trial on ...
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Konvalin v. Sigler
...fully set forth in the state proceedings, State v. Konvalin, 179 Neb. 95, 136 N.W.2d 227 (1965) (direct appeal), and State v. Konvalin, 181 Neb. 554, 149 N.W.2d 755 (1967) (post-conviction). We affirm the denial of Petitioner was sentenced to the Nebraska State Penitentiary for two terms of......
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State v. Kula
...24 C.J.S. Criminal Law § 1738 (1989). Generally, the only costs which can be taxed are those authorized by statute. State v. Konvalin, 181 Neb. 554, 149 N.W.2d 755 (1967),cert. denied 389 U.S. 872, 88 S.Ct. 157, 19 L.Ed.2d 152. A trial court may award or tax costs and apportion the same bet......
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State v. Oziah
...on appeal in the instant case, there is no evidence that defendant's conviction was the result of incompetent counsel. State v. Konvalin, 181 Neb. 554, 149 N.W.2d 755; State v. Moss, 182 Neb. 502, 155 N.W.2d 435. The evidence is quite conclusive that defendant committed the crime with which......
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Anderson v. Houston, S-08-954.
...39A C.J.S. Habeas Corpus § 377 (2003). 21. See, In re Application of Ghowrwal, 207 Neb. 831, 301 N.W.2d 349 (1981); State v. Konvalin, 181 Neb. 554, 149 N.W.2d 755 (1967). 22. See id. 23. Carroll v. Moore, 228 Neb. 561, 423 N.W.2d 757 (1988). 24. Allen v. Sheriff of Lancaster Cty., 245 Neb.......