State v. Warner
| Decision Date | 10 October 1974 |
| Docket Number | No. 39461,39461 |
| Citation | 222 N.W.2d 292,192 Neb. 438 |
| Parties | STATE of Nebraska, Appellee, v. Ronald Eugene WARNER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Where an amendatory statute serving to mitigate criminal punishment becomes effective after conviction and sentence, but before final judgment, while the cause is pending on appeal, an 'appeal' means a direct appeal from the criminal conviction and sentence.
2. An appeal in a post conviction proceeding is not a direct appeal from a conviction and sentence in a criminal case.
3. Matters relating to sentences imposed within statutory limits are not a basis for post conviction relief. Relief under the Post Conviction Act is limited to cases in which there was a denial or infringement of the rights of the prisoner such as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States.
Richard J. Bruckner of Schrempp, Bruckner & Dinsmore, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON and CLINTON, JJ.
Ronald Eugene Warner filed a petition for declaratory relief and/or judgment on October 20, 1973. The petition was considered by the District Court as a motion to vacate sentence under the Post Conviction Act. After hearing, the District Court overruled the motion and the defendant has appealed.
In August 1970, in the District Court for Douglas County, the defendant Warner was found guilty of auto theft and burglary and sentenced to imprisonment for a term of 7 to 9 years on each count, sentences to run concurrently. On October 15, 1971, the judgment was affirmed by this court on appeal. See State v. Warner, 187 Neb. 335, 190 N.W.2d 786. Mandate of this court was stayed pending application for writ of certiorari to the United States Supreme Court. The United States Supreme Court denied certiorari on April 17, 1972. Mandate of this court was issued on April 26, 1972.
On May 10, 1972, the defendant filed a motion in the District Court for Douglas County to vacate sentence and set aside the judgment of August 31, 1970. Execution of sentence was suspended until May 22, 1972, and the defendant's bond continued until that date. On May 22, 1972, after hearing, the matter was taken under advisement by the court and bond continued until further order of the court. On July 6, 1972, section 83--1,105, R.S.Supp., 1972, became effective. That statute provided that when an indeterminate sentence was imposed, the minimum limit fixed shall not be less than the minimum provided by law nor more than one-third of the maximum term. If applicable to the present case, that statute would require a reduction in the minimum limit of defendant's sentences. On July 24, 1972, the Douglas County District Court overruled defendant's motion to vacate sentence in its entirety and remanded the defendant to the custody of the sheriff.
On October 20, 1973, the defendant filed the petition which is now before us on appeal. Hearing was had on November 20, 1973, and on January 11, 1974, defendant's motion for modification of sentence, denominated petition for declaratory relief, was overruled.
The defendant relies on the proposition that where an amendatory criminal statute, which serves to mitigate a criminal sentence previously imposed, becomes effective while the cause is still pending on appeal, and before final judgment, the punishment and sentence are those provided by the amendatory act. The defendant relies on State v. Randolph, 186 Neb. 297, 183 N.W.2d 225, and State v. Rubek, 189 Neb. 141, 201 N.W.2d 255. We have no quarrel with the rule, but the facts of this case place it wholly outside the ambit of the rule.
The real issue here is whether the defendant's original conviction...
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Schuler v. State
...The specific applicability to the period pending completion of appeal was dispositively considered and resolved in State v. Warner, 192 Neb. 438, 222 N.W.2d 292 (1974) and State v. Patterson, 192 Neb. 308, 220 N.W.2d 235 (1974). The general principle of the amelioratory effect of a statute ......
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...on the date that this court enters its mandate concerning a defendant's direct appeal. State v. Schrein, supra; State v. Warner, 192 Neb. 438, 222 N.W.2d 292 (1974). Thus, the question is whether the amendments to § 29-2523 mitigate the punishment Lotter argues that the amendments have limi......
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