State v. Robinson, 83-249

• Decision Date: 07 October 1983
• Docket Number: No. 83-249,83-249
• Citation: 215 Neb. 449,339 N.W.2d 76
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Darwin Jay ROBINSON, Appellant.

Page 76

339 N.W.2d 76

215 Neb. 449

STATE of Nebraska, Appellee, v. Darwin Jay ROBINSON, Appellant.

No. 83-249.

Supreme Court of Nebraska.

Oct. 7, 1983.

Syllabus by the Court

1. Post Conviction. In order to state a cause of action for post conviction relief, the motion must allege facts which, if proved, constitute an infringement of the prisoner's constitutional rights; allegations which are mere conclusions are insufficient.

2. Records: Appeal and Error. An assignment of error which requires an examination of evidence cannot prevail on appeal in the absence of a bill of exceptions; the only question presented under such circumstances is the sufficiency of the pleadings to sustain the judgment of the trial court.

Darwin Jay Robinson, pro se.

Paul L. Douglas, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

In this appeal the defendant-appellant, Darwin Jay Robinson, seeks reversal of the District Court's order denying post conviction relief. We affirm.

Defendant's entire motion for post conviction relief reads as follows:

"COMES NOW the petitioner and in pro se, pursuant to Nebraska Revised Statue [sic] Section 29s3001-3004 (Revised Reissue 1979) of the Uniform Post-Conviction Act, and shows that he is the petitioner in the above-entitled case herein, that he is a citizen of the State of Nebraska. That there was such a denial or infringement of the rights of the petitioner as to render the judgement void or voidable under the Constitution of this State or the Constitution of the United States. That he is in the custody of the Nebraska State Penitentiary in Lincoln, Nebraska, 68502-0500, from a judgement of conviction in the Douglas County District Court, and that said judgement of conviction is the subject of this cause of action.

"Wherefore, the petitioner moves this Court, pursuant to the Nebraska Statue [sic], 29s3001-3004 (Reissue 1979), and order that a hearing be held on the matter in this said Motion for Post-Conviction Relief and that it set aside the sentence and judgement rendered."

It is obvious that the motion does not meet the requirements of Neb.Rev.Stat. § 29-3001 (Reissue 1979) that a "verified motion ... stating the grounds relied upon" be filed.

Not only is the motion not verified, it sets forth no facts which, if proved, would entitle defendant to relief. Defendant pleads only the conclusion that there was a denial of federal and state constitutional rights.

We have recently reiterated the rule that in order to state a cause of action for post conviction relief, the motion must allege facts which, if proved, constitute an infringement of the prisoner's constitutional rights; allegations which are mere conclusions are insufficient. State v. Glasenapp, 212 Neb. 99, 321 N.W.2d 450 (1982).

No hearing was required. However, it appears, from the lower court's order directing the sheriff to bring the defendant before the court, that a hearing was nonetheless had.

The transcript contains two praecipes, each directed to the clerk of the trial court. One praecipe reads: "Request is made for direction to the official stenographic reporter, Lois Thompson, for a complete Bill of Exceptions in the above entitled cause, same to contain all evidence offered and received, for purpose of a reviw [sic] of the conviction and sentence and Post Conviction order in said cause by the Supreme Court of the State of Nebraska."

The other praecipe states: "Please make Transcript of record in above entitled case for Supreme Court, and include therein:

"1. Trial Bill of Exceptions of October 6, 1981, and November 2, 1981.

"2. Post Conviction records of March 24, 1983, (including all motions and docket entries, and Bill of Exception as well as exhibits).

"3. Docket entries of March 2, 1983, (including the findings of facts and law by the trial court).

"4. All exhibits offered and received on March 24th, 1983."

The record does not reflect whether defendant complied with the provisions of Neb.Ct.R. 5A(1) (Rev.1982), which requires in part that the appellant "file a request to prepare a bill of exceptions in...