State v. Whitmore ( 1990 )

452 N.W.2d 31 (1990) 234 Neb. 557

STATE of Nebraska, Appellee,
v.
Randall S. WHITMORE, Appellant.

No. 89-452.

Supreme Court of Nebraska.

February 23, 1990.

Jerry L. Soucie, for appellant.

Randall S. Whitmore, pro se.

Robert M. Spire, Atty. Gen., and Terri M. Weeks, Wahoo, for appellee.

HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ., and RONIN and COLWELL, District Judges, Retired.

PER CURIAM.

Defendant has appealed from the May 2, 1989, order of the district court which overruled his motion for postconviction relief. We order the appeal dismissed for lack of jurisdiction.

On December 4, 1984, defendant was sentenced in cases found at Douglas County District Court docket 111, page 454, and docket 111, page 430. In the first case, the sentences were for 3 to 5 years on count I, 2 to 4 years on count II, 2 to 4 years on count III, and 2 to 4 years on count IV, the sentences on counts II, III, and IV to run concurrently with each other and consecutively to count I. In the second case, the sentence was for 1 to 3 years, to be served concurrently with the sentences imposed in the previous case.

The defendant in his motion does not allege that he is currently in custody in Nebraska serving those sentences. To the contrary, he shows his address to be "Reg. No. 11853-047, MCFP, Unit 9, Box 4000, Springfield, MO 65808." In a separate motion filed on May 2, 1989, in the office of the clerk of the district court for Douglas County, he suggests that at that time he was in the custody of the Federal Bureau of Prisons.

In State v. Harper, 233 Neb. 841, 842-43, 448 N.W.2d 407, 408 (1989), this court stated:

While § 29-3001 does not expressly state that a postconviction attack on a sentence is limited to prisoners incarcerated in the State of Nebraska, we hold that the phrase "in custody under sentence," as used in the Nebraska Postconviction Act, §§ 29-3001 et seq., requires that a prisoner seeking relief under the act must be in actual custody in Nebraska under a Nebraska sentence.

The fact that a detainer may be on file with the Federal Bureau of Prisons by the State of Nebraska does not make the defendant "in actual custody in Nebraska."

The district court had no jurisdiction to entertain defendant's motion, nor does this court to hear his appeal, and it is ordered dismissed.

APPEAL DISMISSED.