State v. Start
| Decision Date | 19 August 1988 |
| Docket Number | No. 87-992,87-992 |
| Citation | 229 Neb. 575,427 N.W.2d 800 |
| Parties | STATE of Nebraska, Appellee, v. Daniel J. START, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction. In a proceeding under the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985), the movant, in custody under sentence, must allege facts which, if proved, constitute a denial or violation of the movant's rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable.
2. Postconviction. A court is not required to grant an evidentiary hearing on a motion for postconviction relief which alleges only conclusions of law or fact.
3. Postconviction. An evidentiary hearing is not required under the Nebraska Postconviction Act when (1) the motion for postconviction relief does not contain sufficient factual allegations concerning a denial or violation of constitutional rights affecting the judgment against the movant, or (2) notwithstanding proper pleading of facts in a motion for postconviction relief, the files and records in the movant's case do not show a denial or violation of the movant's constitutional rights causing the judgment against the movant to be void or voidable.
4. Criminal Law: Due Process: Sentences. When a defendant has been convicted of violating the laws of separate sovereigns, a defendant has no due process right to require that the sentence imposed by one sovereign must be served before the defendant serves the sentence from the other sovereign.
5. Constitutional Law: Prisoners: Sentences. Determination of priority in serving sentences imposed by different sovereigns is a matter of comity between the sovereigns, not a constitutional right of the prisoner.
Daniel J. Start, pro se.
Robert M. Spire, Atty. Gen., and William L. Howland, Lincoln, for appellee.
In a postconviction proceeding pursuant to the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985), Daniel J. Start appeals from the judgment of the district court for Douglas County, which, after reviewing the files and records in Start's case, refused to grant an evidentiary hearing on Start's motion and denied postconviction relief concerning unappealed sentences imposed in 1982. As best we can, we extract the facts from Start's pro se motion for postconviction relief.
During 1982, in Douglas County, Nebraska, Start was sentenced on two felony charges, viz, theft by receipt of stolen property and unlawful flight to avoid arrest. For the theft conviction, Start was sentenced to a term of 2 to 4 years, and for a term of 1 to 2 years on the unlawful flight conviction. Start's sentences ran consecutively for a combined term of 3 to 6 years. After Start had served approximately 2 years 4 months for those convictions, he escaped in June of 1984 while on a work release, leaving the remainder of his combined sentences unserved.
In August 1984, Start was arrested in Douglas County, Colorado, and on September 10, 1984, was sentenced in Colorado to imprisonment for 4 years as the result of his conviction for "criminal impersonation." This sentence was to be served concurrently with the Nebraska sentences in 1982 for theft and unlawful flight. However, while Start was in custody to answer another Colorado charge (auto theft), he escaped. After capture, Start was convicted and sentenced in Colorado [229 Neb. 577] to 8 years on the auto theft charge. Also on March 1, 1985, Start was convicted and sentenced to 8 years for his escape after conviction for criminal impersonation and was also sentenced to 4 years on conviction of an assault charge, apparently related to his Colorado escape. The sentences for the Colorado escape and assault were concurrent and were also concurrent with the sentence for auto theft, but without any reference to the 4-year sentence for the Colorado conviction for criminal impersonation or the two Nebraska convictions in 1982. On May 1, 1985, while Start was serving his sentences at the Colorado penitentiary in Canon City, authorities from Nebraska picked up Start and returned him directly to Douglas County, Nebraska, for trial regarding the 1984 escape.
After conviction for the Nebraska escape, Start was sentenced on July 29, 1985, to imprisonment for 2 years, which ran concurrently with "any other sentences presently being served." Nothing indicates that, after his return from Colorado and before his sentence for the Nebraska escape conviction, Start resumed serving the remainder of his theft-unlawful flight sentences being served when he escaped in 1984. As the result of the sentence for escape, Start was taken to the Nebraska Penal and Correctional Complex and, about 10 days later, was delivered in Lincoln to Colorado authorities for return to Canon City to complete serving the three Colorado sentences. After resumption of Start's imprisonment in Colorado for the sentences on the auto theft, escape, and assault convictions, Nebraska placed a detainer on Start, claiming, according to Start, "that the two years from Nebraska for escape was running with the Colorado sentence but the remainder of [Start's] Nebraska sentence was on hold until the Colorado sentences were [completed] then he was to be returned to Nebraska to serve the unserved portion of his sentence." Following the Nebraska detainer, Start filed his motion in the district court for Douglas County, Nebraska, requesting that the court "vacate the remainder of [his] Nebraska sentence, since Nebraska has lost all jurisdiction over [him], and issue an order to remove the detainer placed by Nebraska with the Colorado officials ... [i]n the interest of justice...."
In a proceeding under the Nebraska Postconviction Act, the movant, in custody under sentence, must allege facts which, if proved, constitute a denial or violation of the movant's rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable. State v. Jackson, 226 Neb. 857, 415 N.W.2d 465 (1987); State v. Malek, 219 Neb. 680, 365 N.W.2d 475 (1985); State v. Williams, 218 Neb. 618, 358 N.W.2d 195 (1984); State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).
A court is not required to grant an evidentiary hearing on a motion for postconviction relief which alleges only conclusions of law or fact. State v. Lytle, 224 Neb. 486, 398 N.W.2d 705 (1987); State v. Robinson, 215 Neb. 449, 339 N.W.2d 76 (1983); State v. Turner, supra.
An evidentiary hearing is not required under the Nebraska...
To continue reading
Request your trial
-
State v. Dixon, 89-1334
...under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable." State v. Start, 229 Neb. 575, 577-78, 427 N.W.2d 800, 802 (1988); § 29-3001. "[T]o sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U......
-
State v. Schneckloth, 89-1171
...under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable." State v. Start, 229 Neb. 575, 577-78, 427 N.W.2d 800, 802 (1988). If a defendant has the constitutional right to an attorney in the prosecution of an appeal, the defendant has the ri......
-
State v. Victor, S-91-933
...Sanders, 241 Neb. at 689, 490 N.W.2d at 214. See, also, State v. Schneckloth, 235 Neb. 853, 458 N.W.2d 185 (1990); State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988); State v. Jackson, 226 Neb. 857, 415 N.W.2d 465 (1987); State v. Malek, 219 Neb. 680, 365 N.W.2d 475 Conversely, an evidenti......
-
Lustig v. Lustig
...interfere with the jurisdiction of a foreign court"); Matter of Florance, 360 N.W.2d 626, 630 (Minn.1985) (comity); State v. Start, 229 Neb. 575, 427 N.W.2d 800, 803 (1988)("When separate sovereigns have jurisdiction over a person, the doctrine of primary jurisdiction allows the tribunal an......