State v. Rolling, 84-757

• Citation: 366 N.W.2d 441,219 Neb. 800
• Decision Date: 26 April 1985
• Docket Number: No. 84-757,84-757
• Parties: STATE of Nebraska, Appellee, v. Walter W. ROLLING, Appellant.
• Court: Supreme Court of Nebraska

Page 441

366 N.W.2d 441

219 Neb. 800

STATE of Nebraska, Appellee, v. Walter W. ROLLING, Appellant.

No. 84-757.

Supreme Court of Nebraska.

April 26, 1985.

Syllabus by the Court

Courts: Appeal and Error. On remand the district court has no alternative except to obey and perform the mandate of the Supreme Court.

Walter W. Rolling, pro se.

Vincent Valentino, York County Atty., and Charles W. Campbell, York, for appellee.

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

KRIVOSHA, Chief Justice.

This is the fourth appearance of this matter in this court. Initially, the appellant, Walter W. Rolling, was charged in a five-count information and convicted. The facts are more fully set out in State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981) (Rolling I ), where we affirmed the convictions, and need not be repeated here. In Rolling I we noted plain error in that the sentences imposed by the district court were contrary to the provisions of Neb.Rev.Stat. § 29-2221 (Reissue 1979) and therefore invalid. We set aside the sentences and remanded the cause to the district court with instructions to impose proper sentences. Upon remand the district court once again failed to impose the sentences minimally required by the provisions of § 29-2221. Rolling elected not to file a direct appeal but, instead, sought post conviction relief pursuant to the provisions of Neb.Rev.Stat. § 29-3001 (Reissue 1979). The district court denied Rolling's petition, and on appeal to this court we affirmed without opinion under Neb.Ct.R. 7B(2) (Rev.1983) (Rolling II ). Dissatisfied with that result, Rolling filed a second petition seeking post conviction relief, and once again the district court dismissed his petition. On appeal to this court we reviewed Rolling's claim in detail and determined that the sentences imposed by the district court failed to conform to the requirements of § 29-2221. (See State v. Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984) (Rolling III ).) We therefore vacated the sentences and once again remanded the cause to the district court with directions to impose proper sentences. Upon receiving the mandate in Rolling III, the district court entered judgment on the mandate and sentenced Rolling in accordance with the provisions of § 29-2221. It is from the judgment on the mandate that Rolling once again appeals to this court, assigning a number of errors, none of which go to the district court's action in entering the judgment on the mandate. For reasons more particularly set out hereinafter, we affirm the action of the district court in imposing sentences in accordance with our previous mandate.

An examination of the sentences imposed discloses, without question, that the district court has now sentenced Rolling consistent with the requirements of § 29-2221 and our opinion in Rolling III. There is therefore nothing before this court to be reviewed. It has long been the rule in this jurisdiction that there must be an end to the litigation of a particular cause, and an alleged litigant may not have de novo trial after trial, ad infinitum, simply on the basis that he is dissatisfied with the final results. See, Gates v. Howell, 211 Neb. 85, 317 N.W.2d 772 (1982); Jurgensen v. Ainscow, 160 Neb. 208, 69 N.W.2d 856 (1955).

It is a fundamental principle of law that on remand the district court has no alternative except to obey and perform the mandate of the Supreme Court. Jameson v. Nelson, 216 Neb. 26, 341 N.W.2d 596 (1983); Muller Enterprises, Inc. v. Gerber, 180 Neb. 318, 142 N.W.2d 593 (1966). In Jurgensen, supra 160 Neb. at 211, 69 N.W.2d at 858, we said:

"When a particular judgment is directed by the appellate court, the lower court is not acting of its own motion, but in obedience to the order of its superior. What that superior says it shall do, it must do and that alone. Public interests require that an end shall be put to litigation, and when a given cause has received the consideration of this court, its merits determined, and then remanded with specific...