State v. Jonsson

224 N.W.2d 181, 192 Neb. 730, 1974 Neb. LEXIS 784

Opinions

Per Curiam:

On September ,13, 1973, the defendant, Geir Jonsson, filed a motion for leave to file notice of appeal, or, in the alternative, to vacate sentence. The District Court, after reconsideration, overruled the motions and the defendant has appealed.

On January 26, 1973, the defendant, after trial, was found guilty of possession of cocaine with intent to deliver. On March 27, 1973, the defendant was sentenced to 5 years imprisonment. No appeal from that sentence was taken and no further action followed until the filing of the motion involved here on September 13, 1973.

The factual basis for defendant’s contentions here is that an amendatory statute serving to mitigate the criminal punishment for the offense for which defendant was committed was passed by the Legislature on May 24, 1973, and took effect on September 2, 1973.

Section 28-4,125, R. S. Supp., 1972, at the time the defendant was sentenced, provided for imprisonment of 5 to 20 years. Under the amendment of September 2, 1973, it provided for imprisonment of 1 to 10 years for first offenders. The defendant was a first offender.

As to the finality of judgments in criminal cases, and their vulnerability to collateral or indirect attack, this case is controlled by State v. Warner, ante p. 438, 222 N. W. 2d 292. In that case we reaffirmed the principle that where an amendatory statute serving to mitigate criminal punishment becomes effective after conviction and sentence, but before final judgment, while the cause is pending on appeal, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise. State v. Warner, supra, held that an appeal within the meaning of that rule does not include an appeal in or from a collateral or related proceeding. It also held that matters relating to sentences imposed within statutory limits are not a basis for post conviction relief. In the case before us, the judgment and sentence became final on April 27, 1973, and this court lost jurisdiction to hear a direct appeal. The judgment and sentence of the District Court then became final and are not subject to attack in a collateral post conviction proceeding.

The judgment of the District Court is therefore affirmed.

Affirmed.