State v. Fincher

Nebraska Supreme Court

State v. Fincher

204 N.W.2d 927, 189 Neb. 746, 1973 Neb. LEXIS 885

CourtNebraska Supreme Court

DecidedMarch 9, 1973

Docket38597

StatusPublished

Cited by5 cases

This text of 204 N.W.2d 927 (State v. Fincher) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Fincher, 204 N.W.2d 927, 189 Neb. 746, 1973 Neb. LEXIS 885 (Neb. 1973).

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Opinion

Clinton, J.

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, *748 424 F. 2d 177; State v. Carpenter, 186 Neb. 605, 185 N. W. 2d 663.

The alleged failure of proof does not exist.

Affirmed.

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Clinton, J.

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, *748 424 F. 2d 177; State v. Carpenter, 186 Neb. 605, 185 N. W. 2d 663.

The alleged failure of proof does not exist.

Affirmed.

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Bluebook (online)

204 N.W.2d 927, 189 Neb. 746, 1973 Neb. LEXIS 885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fincher-neb-1973.

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