State v. Weiland, 38788

Decision Date13 April 1973
Docket NumberNo. 38788,38788
Citation190 Neb. 111,206 N.W.2d 336
PartiesSTATE of Nebraska, Appellee, v. Bobby Joe WEILAND, Appellant.
CourtNebraska 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.

SPENCER, Justice.

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: 'That the defendant was tried by surprise for a substantially and materially different criminal charge, than that which he was bound over to the district court for trial on, and which he went to trial prepared to defend against, in clear violation of his right to know the cause and nature of the accusation against him, and his right to due process of law. U.S.C.A.Const. Amends. 6 and 14. This change in the prosecution theory between bind-over and trial involved the aforesaid change of co-defendants, from Phyllis Croghan to Ronald W. Lefel, and not only violated defendant's right to know the cause and nature of the accusation, but also deprived the district court of jurisdiction to try this cause.'

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: 'Essentially, a defendant asserts that two police officers at a preliminary hearing identified one Phyllis Croghan as defendant's accomplice but at the time of trial, identified one Ronald Leffel instead. Leffel then testified for the...

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16 cases
  • Poindexter v. Wolff
    • United States
    • U.S. District Court — District of Nebraska
    • 4 d2 Novembro d2 1975
    ...direct appeal and which were not presented therein will not ordinarily be considered in a post-conviction petition. State v. Weiland, 190 Neb. 111, 206 N.W.2d 336 (1973). The issue is not completely foreclosed from such post-conviction relief, however, and the state courts should be first g......
  • State v. Williams
    • United States
    • Nebraska Supreme Court
    • 8 d5 Junho d5 1984
    ...711, 320 N.W.2d 115 (1982); State v. Stranghoener, supra. The reasons for such rules are obvious. As we noted in State v. Weiland, 190 Neb. 111, 113, 206 N.W.2d 336, 338 (1973): "There must be an end to litigation. A defendant will not be permitted to rephrase issues previously raised or ra......
  • State v. Hochstein, 83-254
    • United States
    • Nebraska Supreme Court
    • 17 d5 Fevereiro d5 1984
    ...711, 320 N.W.2d 115 (1982); State v. Stranghoener, supra. The reason for such rules are obvious. As we noted in State v. Weiland, 190 Neb. 111, 113, 206 N.W.2d 336, 338 (1973): "There must be an end to litigation. A defendant will not be permitted to rephrase issues previously raised or rai......
  • State v. Manchester, 84-862
    • United States
    • Nebraska Supreme Court
    • 17 d5 Maio d5 1985
    ...711, 320 N.W.2d 115 (1982); State v. Stranghoener, supra. The reasons for such rules are obvious. As we noted in State v. Weiland, 190 Neb. 111, 113, 206 N.W.2d 336, 338 (1973): "There must be an end to litigation. A defendant will not be permitted to rephrase issues previously raised or ra......
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