State v. Smith , 188 Neb. 388 ( 1972 )

196 N.W.2d 918 (1972) 188 Neb. 388

STATE of Nebraska, Appellee,
v.
Wardell Nelson SMITH, Appellant.

No. 38269.

Supreme Court of Nebraska.

April 27, 1972.

Wardell Nelson Smith pro se.

Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, SMITH, and NEWTON, JJ., and CHADDERDON and C. THOMAS WHITE, District Judges.

SPENCER, Justice.

This is a post conviction action to vacate and set aside defendant's sentence and conviction for first degree murder. Defendant pled guilty and was sentenced to life imprisonment. The trial court appointed counsel, granted defendant a hearing, and decided the case on its merits.

This, however, is a second motion for post conviction relief on behalf of the defendant. In State v. Reichel, 187 Neb. 464, 191 N.W.2d 826, we held: "After a first motion for post conviction relief has been judicially determined, any subsequent motion for post conviction relief from the same conviction and sentence may be dismissed by the district court, unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of filing a prior motion for post conviction relief." We see no reason to depart from that holding in this case.

The judgment of the district court is affirmed.

Affirmed.