State v. Weiland, 38788
Decision Date | 13 April 1973 |
Docket Number | No. 38788,38788 |
Citation | 190 Neb. 111,206 N.W.2d 336 |
Parties | STATE of Nebraska, Appellee, v. Bobby Joe WEILAND, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. A motion to vacate a judgment and sentence under the Post Conviction Act cannot be used as a substitute for an appeal or to secure a further review of issues already litigated.
2. Where the facts and issues which are the grounds of a motion for post conviction relief were known to the defendant and his counsel, and were raised, heard, and determined at the time of the trial resulting in his conviction but were not raised in his direct appeal, those issues will not ordinarily be considered in a post conviction review.
Bobby Joe Weiland, pro se.
Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.
Defendant appeals from the denial of an evidentiary hearing in this post conviction proceeding. We affirm.
Defendant's motion contained three grounds for release. Defendant concedes that the first two grounds had previously been heard and overruled. Defendant's third allegation was:
Defendant was convicted in the district court for Dodge county on a charge of breaking and entering. On March 6, 1970, he was sentenced as an habitual criminal to 12 years in the Nebraska Penal and Correctional Complex. He was represented by competent counsel at his trial, as well as on appeal to this court where the conviction was affirmed in State v. Weiland, 186 Neb. 325, 183 N.W.2d 244 (1971). Thereafter, in August of 1971, he filed a motion to vacate and set aside his conviction and sentence. This was overruled, and the ruling was again appealed to this court which affirmed the action of the trial court in State v. Weiland, 188 Neb. 626, 198 N.W.2d 327 (1972).
The following from 188 Neb. 626, 198 N.W.2d 327, will amply demonstrate that defendant has had his day in court: ...
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