State v. Ohler, 83-150
Decision Date | 30 September 1983 |
Docket Number | No. 83-150,83-150 |
Citation | 215 Neb. 401,338 N.W.2d 776 |
Parties | STATE of Nebraska, Appellee, v. Jerry G. OHLER, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. Post Conviction: Appeal and Error. A motion for post conviction relief can not be used as a substitute for an appeal or to secure a further review of issues already litigated.
2. Post Conviction: Appeal and Error. Once a motion for post conviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of the filing of the prior motion.
Robert B. Creager of Berry, Anderson, Creager & Wittstruck, Lincoln, for appellant.
Paul L. Douglas, Atty. Gen., and Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.
This is an appeal in a post conviction proceeding.
At the original trial the defendant was convicted of possession of burglary tools and possession of stolen property. He was found to be an habitual criminal, was fined $500, and was sentenced to imprisonment for a term of 15 years. On his direct appeal to this court the defendant contended that the overruling of his motion to suppress was error. We held that the defendant had consented to the warrantless search, and affirmed the judgment. State v. Ohler, 208 Neb. 742, 305 N.W.2d 637 (1981), cert. denied 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383.
The defendant then commenced a proceeding for post conviction relief under Neb.Rev.Stat. § 29-3001 (Reissue 1979), alleging that the search had violated his constitutional rights, that his right to procedural due process was denied when the State was permitted to amend the information without a hearing, and that his right to a fair trial was prejudiced by violations of the court's order to sequester the witnesses. Following a review of all the records and bill of exceptions, the trial court found that the defendant was not entitled to relief.
The defendant was represented by Anthony Troia at trial, on the direct appeal, and in the trial court in the first post conviction proceeding. Shortly after the defendant had filed a notice of appeal, pro se, in the first post conviction proceeding, Troia's motion for leave to withdraw was granted by this court and George Brugh was appointed as counsel. The defendant then filed a motion to dismiss the pending appeal, pro se, and the appeal was dismissed.
On January 20, 1983, the defendant commenced the present proceeding, in which he alleged:
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Victor v. Hopkins
...on its face that the basis relied upon for relief was not available at the time of the filing of the prior motion. State v. Ohler, 215 Neb. 401, 405, 338 N.W.2d 776 (1983) (emphasis added). So far as I have been able to determine, the Nebraska Supreme Court has not clarified the parameters ......
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Harper v. Grammer
...proceeding, because the grounds for it, if any, existed at the time of the filing of the first post-conviction motion. State v. Ohler, 215 Neb. 401, 338 N.W.2d 776 (1983). The failure of counsel to raise the issue, either on direct appeal or on post-conviction proceedings, did not amount to......
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State v. Williams
...relief can not be used as a substitute for an appeal or to secure a further review of issues already litigated." State v. Ohler, 215 Neb. 401, 405, 338 N.W.2d 776, 778 (1983). Additionally, a defendant in a post conviction proceeding may not raise questions which could have been raised on d......
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State v. Williams, 83-537
...relied upon for relief was not available at the time of the filing of the prior motion. [Citations omitted.] State v. Ohler, 215 Neb. 401, 405, 338 N.W.2d 776, 778-79 (1983). Concerning Williams' first motion for post conviction relief, we specifically Regarding Williams' general contention......