State v. Losieau

• Decision Date: 08 December 1967
• Docket Number: No. 36643,36643
• Citation: 182 Neb. 367,154 N.W.2d 762
• Parties: STATE of Nebraska, Appellee, v. Robert William LOSIEAU, Appellant.
• Court: Nebraska Supreme Court

Page 762

154 N.W.2d 762

182 Neb. 367

STATE of Nebraska, Appellee, v.Robert William LOSIEAU, Appellant.

No. 36643.

Supreme Court of Nebraska.

Dec. 8, 1967.

Syllabus by the Court

1.An illegal search and seizure issue cannot be considered in a post conviction review where the circumstances of the search and seizure were fully known to the defendant at the time of the trial resulting in his conviction.

2.Under the habitual criminal law, prior convictions may be used as the basis for enhancing the penalty for a subsequent felony conviction, even though they have previously been used for such purpose on a prior habitual criminal conviction.

Ray C. Simmons, Fremont, for appellant.

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

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

McCOWN, Justice.

Under the Nebraska Post Conviction Act, the defendant has appealed from the overruling of a motion to vacate a January 1962 conviction and 20-year sentence for breaking and entering and habitual criminal.

The bulk of defendant's contentions in the motion as amended involve the claim that certain evidence introduced at the trial was the fruit of an unlawful search and seizure and inadmissible under the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933.

The original trial here was several months after the decision in Mapp v. Ohio, supra.Experienced and able trial counsel had filed a motion in the trial court to suppress the evidence and had objected to its introduction when offered, and also represented the defendant on appeal to this court.The original conviction was affirmed, State v. Losieau, 174 Neb. 320, 117 N.W.2d 775.The unlawful search and seizure issue was not raised on the appeal.Under the comparable federal statute, it has been almost universally held that ordinarily an alleged illegal search and seizure issue may not be successfully raised in a proceeding which constitutes a collateral attack on the sentence, but must be presented in the appeal from the conviction.In Cox v. United States, 351 F.2d 280(8th Cir.)1965, the court affirmed dismissal of a motion to vacate without an evidentiary hearing and stated: 'Likewise, the illegal search and seizure issue cannot be considered on a § 2255 motion where, as here, the circumstances of the search and seizure were fully known to the defendant at the time of his trial resulting in his conviction.'See, also, Springer v. United States, 340 F.2d 950(8th Cir.)1965.

This court has repeatedly held that a proceeding under our Post Conviction Act cannot be used as a substitute for an appeal or to secure a further review of issues already litigated.State v. Hizel, 181 Neb. 680, 150 N.W.2d 217.

We hold that an illegal search and seizure issue cannot be considered in a post conviction review where the circumstances of the search and seizure were fully known to the defendant at the time of the trial resulting in his conviction.

The defendant also contends that to allow a conviction to be used more than once to support an habitual criminal charge is a misinterpretation of the Constitution, a cruel and unusual punishment, and places the defendant twice in jeopardy.The record shows that a conviction and sentence for stealing an automobile on August 3, 1945, and a conviction and sentence for burglary and habitual criminal on October 9, 1952, both from Douglas...