State v. Fincher ( 1973 )

204 N.W.2d 927 (1973) 189 Neb. 746

STATE of Nebraska, Appellee,
v.
Hubert W. FINCHER, Appellant.

No. 38597.

Supreme Court of Nebraska.

March 9, 1973.

Hubert W. Fincher, pro se.

Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.

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

CLINTON, Justice.

This is an appeal from denial of post conviction relief by the district court. The appellant was found guilty by a jury of assault with intent to commit great bodily harm. On direct appeal the conviction was affirmed. State v. Fincher, 188 Neb. 376, 196 N.W.2d 909.

The trial court, after examining the files and records in the case, determined that they showed the appellant was entitled to no relief and denied without an evidentiary hearing the appellant's motion to vacate the conviction. This was proper under sections 29-3001 et seq., R.S.Supp., 1972, and our holdings in State v. LaPlante, 185 Neb. 816, 179 N.W.2d 110, and State v. Pilgrim, 184 Neb. 457, 168 N.W.2d 368.

We have reviewed the whole record and find that the record affirmatively shows there was no denial or infringement of the appellant's rights rendering the judgment void or voidable under either the Constitution of the State of Nebraska or the Constitution of the United States.

Only one issue of constitutional significance is raised by the appellant's motion and his assignments of error on this appeal and that involves alleged incompetence and ineffectiveness of counsel. The record demonstrates that counsel was competent and effective. Other assignments involve jury instructions and alleged failure of proof. The instructions were proper and in any event did not involve any fundamental unfairness which would have made the assignments cognizable in the post conviction proceedings. Higgins v. Wainwright, 5 Cir., 424 F.2d 177; State v. Carpenter, 186 Neb. 605, 185 N.W.2d 663.

The alleged failure of proof does not exist.

Affirmed.