State v. Walker , 197 Neb. 381 ( 1977 )

248 N.W.2d 784 (1977) 197 Neb. 381

STATE of Nebraska, Appellee,
v.
Charles WALKER, Appellant.

No. 41012.

Supreme Court of Nebraska.

January 12, 1977.

Charles Walker, pro se, for appellant.

Paul L. Douglas, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.

BOSLAUGH, Justice.

The defendant was convicted of possession of a controlled substance with intent to distribute and was sentenced to 10 years imprisonment. The judgment was affirmed in State v. Walker, 192 Neb. 308, 220 N.W.2d 235.

On June 29, 1976, the defendant filed a motion for post conviction relief, titled "Petition for Resentence," alleging that the sentence imposed in 1973 was void. The defendant's theory was that the 1973 amendment to section 28-4, 125, R.S.Supp. 1972, which reduced the penalty from 5 to 20 years imprisonment to 1 to 10 years imprisonment invalidated his sentence. The trial court denied relief and the defendant has appealed.

Relief under the Post Conviction Act is limited to cases in which there was a denial or infringement of the rights of the prisoners such as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States. Matters relating to sentences imposed within statutory limits are not a basis for post conviction relief. State v. Wade, 192 Neb. 159, 219 N.W.2d 233.

The sentence which was imposed upon the defendant in this case was within the statutory limit both before and after the 1973 amendment. Unlike the 15-year sentence imposed upon Joseph Patterson, whose case was considered in this court at the same time as the defendant's appeal, the defendant's sentence did not exceed the maximum under the statute as amended. Consequently, there was nothing that required the defendant's sentence be vacated and the cause remanded for resentencing.

The order of the trial court denying post conviction relief was correct and is affirmed.

AFFIRMED.