State v. Moss

214 N.W.2d 15 (1973) 191 Neb. 36

STATE of Nebraska, Appellee,
v.
Raymond L. MOSS, Appellant.

No. 39128.

Supreme Court of Nebraska.

December 21, 1973.

James M. Kelley, Kelley & Thorough, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold S. Salter, Deputy Atty. Gen., Lincoln, for appellee.

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

BOSLAUGH, Justice.

The defendant was convicted of sodomy, robbery, and use of a firearm in the commission of a felony. The conviction was affirmed in State v. Moss, 187 Neb. 391, 191 N.W.2d 543.

The defendant now seeks relief under the Post Conviction Act. His principal contention is that the trial court should have suppressed the identification testimony of two eyewitnesses who were the victims of the crimes. This issue was the principal matter considered on the first appeal. State v. Moss, supra. It has been fully litigated and cannot be relitigated by a motion for post conviction relief. State v. Franklin, 187 Neb. 363, 190 N.W.2d 780.

The other assignments of error relate to the sufficiency of the evidence; the instructions to the jury; and the failure to limit impeachment by use of prior felony convictions. None of these contentions afford a basis for post conviction relief.

Relief under the Post Conviction Act is limited to cases in which there was a denial or infringement of the rights of the defendant such as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States. State v. Bullard, 187 Neb. 334, 190 N.W.2d 628. Post conviction relief is not a substitute for appeal.

The judgment of the District Court denying post conviction relief is affirmed.

Affirmed.