State v. Newton, 42062
| Citation | 202 Neb. 361,275 N.W.2d 297 |
| Decision Date | 13 February 1979 |
| Docket Number | No. 42062,42062 |
| Parties | STATE of Nebraska, Appellant, v. James R. NEWTON, Appellee. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court
After a first motion for post conviction relief has been judicially determined, any subsequent motion for post conviction relief from the same conviction and sentence may be dismissed by the District Court, unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of filing a prior motion for post conviction relief.
James R. Newton, pro se.
Paul L. Douglas, Atty. Gen., Sharon M. Brueggemann, Asst. Atty. Gen., Lincoln, for appellant.
Heard before KRIVOSHA, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ.
This is a post conviction proceeding to vacate and set aside a 1974 conviction and sentence for statutory rape. The District Court denied the petitioner's motion for post conviction relief without granting an evidentiary hearing and this appeal followed.
On March 8, 1974, the petitioner was convicted by a jury of the offense of statutory rape under former section 28-408, R.R.S. 1943, now repealed. He was sentenced to imprisonment for not less than 10 nor more that 15 years. On direct appeal this court affirmed the conviction and sentence. See State v. Newton, 193 Neb. 129, 225 N.W.2d 562.
On April 14, 1975, petitioner filed a first motion for post conviction relief. The District Court denied relief because each of the grounds for post conviction relief had been raised, argued, and presumably decided adversely to petitioner in the direct appeal. The petitioner appealed the denial of post conviction relief to this court but on May 14, 1975, dismissed the appeal on his own motion.
On March 3, 1978, petitioner again filed a motion for post conviction relief alleging, for the first time, that the statute under which he was convicted was unconstitutional because it was vague and denied him equal protection of the law. The District Court denied the motion for post conviction relief without an evidentiary hearing and this appeal followed.
The basis of petitioner's constitutional complaint is that only males and not females could be convicted under the statute. The overwhelming weight of authority is that such a sex classification under a statutory rape statute similar to section 28-408, R.R.S. 1943, is fair and reasonable, and does not deny males the equal protection of the laws. See State v. Witt, 310...
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Country v. Parratt
...futile because the state supreme court had indicated, in dicta, it would reject a challenge to the rape law. See State v. Newton, 202 Neb. 361, 363, 275 N.W.2d 297, 298 (1979). The State does not challenge this ruling on appeal.Franklin did not raise the constitutionality of the statute in ......
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State v. Edwards
...Neb. 134, 835 N.W.2d 638 (2013).21 See County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376 (2008).22 See State v. Newton, 202 Neb. 361, 275 N.W.2d 297 (1979).23 Edwards II, supra note 1, 284 Neb. at 406–07, 821 N.W.2d at 701.24 See, State v. Wagner, 271 Neb. 253, 710 N.W.2d 627 ......
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Ford v. Parratt, 80-1561
...a subsequent motion for post-conviction relief any grounds which could have been raised in the first proceeding. State v. Newton, 202 Neb. 361, 363, 275 N.W.2d 297, 299 (1979). * * From the record in the instant case, it does not appear that Ford has deliberately bypassed state procedures a......
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State v. Rolling, 83-843
...upon for relief was not available at the time of the filing of the prior motion for post conviction relief. See, State v. Newton, 202 Neb. 361, 275 N.W.2d 297 (1979); State v. Ohler, 215 Neb. 401, 338 N.W.2d 776 (1983). We are, however, compelled to accept jurisdiction in this case because ......