State v. Lincoln ( 1971 )

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186 N.W.2d 490 (1971) 186 Neb. 783
STATE of Nebraska, Appellee,
v.
Edward L. LINCOLN, Appellant.
No. 37788.
Supreme Court of Nebraska.
April 30, 1971.
Edward L. Lincoln, pro se.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

McCOWN, Justice.

The defendant appeals from the denial of an evidentiary hearing on his motion for post conviction relief. His original conviction and sentence were affirmed on direct appeal in State v. Lincoln, 183 Neb. 770, 164 N.W.2d 470.

The motion is essentially directed to three issues which provide the alleged grounds for relief: (1) Overruling of a motion for continuance based on a delayed endorsement of witnesses and advance of trial date; (2) denial of a motion for mistrial based on statements made by the prosecuting attorney in opening argument; and (3) an allegedly erroneous instruction to the jury.

The matters involved in the first two issues were known to defendant and his counsel at the time of trial. They were fully objected to, heard, and determined at the time by the trial court. These two issues were not raised in the direct appeal. The third issue was raised in the direct appeal and specifically passed on by this court.

A motion to vacate a judgment and sentence under the Post Conviction Act *491 cannot be used as a substitute for an appeal or to secure a further review of issues already litigated. State v. Hizel, 181 Neb. 680, 150 N.W.2d 217.

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. For cases related in principle, see, State v. Losieau, 182 Neb. 367, 154 N.W.2d 762; State v. LaPlante, 185 Neb. 816, 179 N.W.2d 110.

The judgment of the district court is affirmed.

Affirmed.