State v. Rivera, 40929
| Decision Date | 09 February 1977 |
| Docket Number | No. 40929,40929 |
| Citation | 249 N.W.2d 914,197 Neb. 629 |
| Parties | STATE of Nebraska, Appellee, v. Joe M. RIVERA, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
Where a sentence is imposed within prescribed statutory limits, the validity of the sentence is not a matter of post conviction relief.
John R. Hall of McDermott & Hall, Grand Island, for appellant.
Paul L. Douglas, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
Defendant, Joe Mario Rivera, appeals from the overruling of his motion for post conviction relief after an evidentiary hearing. The issue presented was whether the indeterminate sentence imposed on defendant was erroneous. We affirm.
On December 10, 1970, defendant was sentenced to a term of 15 to 25 years in the Nebraska Penal and Correctional Complex. He had been convicted of second-degree murder after a jury trial. Defendant waived his right to appeal and was committed to the Penal Complex.
On April 26, 1976, defendant filed a motion for post conviction relief, urging the invalidity of the sentence imposed upon him. An evidentiary hearing was held May 26, 1976, and the motion was overruled by the court.
The indeterminate sentence statute in effect December 10, 1970, when defendant was sentenced, section 83--1,105, R.S.Supp.1969, read in part as follows:
'(1) Fix the minimum and maximum limits of the sentence, but the minimum limit fixed by the court shall not be less than the minimum provided by law and the maximum limit shall not be greater than the maximum provided by law; * * *.'
Under section 28--402, R.R.S1943, the penalty for second-degree murder is imprisonment for 'not less than ten years, or during life.' The plain language of section 83--1,105, R.S.Supp.1969, indicates an indeterminate sentence could properly be imposed on December 10, 1970, since a term of life imprisonment was not required by law upon conviction for second-degree murder.
Prior to the enactment of section 83--1,105 in 1969, the indeterminate sentence statute excepted crimes of violence from its provisions. After defendant was sentenced, section 83--1,105 was again amended. The 1972 amendment provided that the minimum limit fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term, and the maximum limit shall not be greater than the maximum provided by law. We have held the 1972 ...
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Niemann v. Parratt
...in a sentencing for second degree murder because it is not a crime "where a term of life is required by law." See State v. Rivera, 197 Neb. 629, 249 N.W.2d 914, 915 (1977). Niemann relies on the Nebraska Supreme Court cases of State v. Laravie, 192 Neb. 625, 223 N.W.2d 435 (1974), and State......
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Murray v. Cowley
...violation where the habeas petitioner was properly sentenced under the statute then in effect. Id. at 318 (quoting State v. Rivera, 249 N.W.2d 914, 915-16 (Neb.1977)). Stated simply, Murray is not similarly situated to persons convicted under the new second degree murder statute. Accordingl......
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