Winston v. State , 267 Ind. 587 ( 1978 )

Givan, C.J.

Appellant was convicted of armed robbery. His conviction was affirmed by this Court in Winston v. State, (1975) 263 Ind. 8, 323 N.E.2d 228. Appellant filed a petition for post-conviction relief alleging denial of his constitutional rights under the Fourth and Sixth Amendments to the United States Constitution. The trial court denied the petition without a hearing on the ground that the issues raised had been determined by the Supreme Court of Indiana in the prior appeal.

Appellant’s sole contention is that the trial court erred in denying the petition without conducting a hearing. PC 1, Sec. 4(e) provides:

“ (e) If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings.”

In- his petition appellant raises issues which were specifically decided by the Court adversely to him in the original opinion. These cannot be relitigated. PC 1, Sec. 8.

The only issue now raised which was not raised in the prior appeal is that appellant was arrested without probable cause in violation of his constitutional rights. This issue has been waived. Brown v. State, (1974) 261 Ind. 619, 308 N.E.2d 699. The trial judge therefore properly denied the petition without a hearing because the pleadings conclusively showed that appellant was entitled to no relief. However appellant argues that Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538, requires that in order for the court to consider the issue of waiver the State must raise it. The Langley case involved a hearing in which the State argued the merits of the petition and then, on appeal, asserted that petitioner had waived certain issues. In the case at bar the State denied generally the allegations in the petition. A hearing was never held because the judge determined that the petition was without merit. To hold that under these circumstances the trial judge could not take judicial notice of this Court’s prior opinion in this case and of the fact that the other appealable issue had been waived, would be to tie the hands of our trial courts and force the relitigation of meritless issues.

Accordingly, the judgment of the trial court is affirmed.

Hunter, Pivarnik and Prentice, JJ., concur; DeBruler, J., dissents with opinion.