State v. Niemann

240 N.W.2d 38 (1976) 195 Neb. 675

STATE of Nebraska, Appellee,
v.
Max A. NIEMANN, Appellant.

No. 40368.

Supreme Court of Nebraska.

March 25, 1976.

Richard T. Vanderheiden, Phares & Torpin, Central City, for appellant.

Paul L. Douglas, Atty. Gen., Paul W. Snyder, Sp. Asst. Atty. Gen., Lincoln, for appellee.

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

WHITE, Chief Justice.

The defendant was originally charged with first degree murder and pled guilty to a reduced charge of second degree murder. The District Court sentenced the defendant to an indefinite term of 20 years to life imprisonment in the Nebraska Penal and Correctional Complex. No appeal was taken. On November 22, 1971, the defendant sought relief under the Post Conviction Act by filing a motion to vacate and set aside. After a hearing, the defendant's request for post conviction relief was denied. No appeal from this decision was taken. On May 19, 1975, the defendant sought post conviction relief a second time, alleging that the sentence imposed upon him was illegal. After a hearing, the court denied the defendant's application for relief. This appeal follows. We affirm the judgment and sentence of the District Court.

"After a first motion for post conviction relief has been judicially determined, any subsequent motion for post conviction relief from the same conviction and sentence may be dismissed by the district court, unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time of filing a prior motion for post conviction relief." State v. Fincher, 191 Neb. 446, 216 N.W.2d 172 (1974). See, also, State v. Haskett, 194 Neb. 523, 233 N.W.2d 782 (1975). A post conviction proceeding cannot be used as a procedure to secure a review for a defendant dissatisfied with his sentence. State v. Huffman, 186 Neb. 809, 186 N.W.2d 715 (1971).

The judgment and sentence of the District Court are correct and are affirmed.

AFFIRMED.