State v. Taylor

Nebraska Supreme Court

State v. Taylor

227 N.W.2d 26, 193 Neb. 388, 1975 Neb. LEXIS 983

CourtNebraska Supreme Court

DecidedMarch 27, 1975

Docket39700

StatusPublished

Cited by4 cases

This text of 227 N.W.2d 26 (State v. Taylor) 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. Taylor, 227 N.W.2d 26, 193 Neb. 388, 1975 Neb. LEXIS 983 (Neb. 1975).

Pincite

Opinion

Newton, J.

This is a post conviction action. Defendant, on a plea *389 of guilty, was convicted of burglary. Pursuant to a plea bargain the State’s attorney recommended probation. Sentence was deferred pending a presentence investigation. During this period the defendant committed another felony. The original plea bargain was withdrawn but another one entered into. The State agreed to drop charges on the most recent felony if defendant adhered to his plea of guilty to the burglary charge. This he did and he received a flat 10-year sentence. Defendant was represented by counsel on both occasions.

Defendant assigns as error the failure to grant an evidentiary hearing, denial of a direct appeal, failure to appoint counsel in this proceeding, failure to include the presentence report in the record on appeal, that the report was incomplete and biased, and excessiveness of the sentence. We affirm the judgment of the District Court.

Defendant’s motion to vacate the judgment set out only two purported grounds, excessiveness of the sentence and an incomplete presentence-investigation report. It is evident that no grounds were presented to the District Court which would require an evidentiary hearing. It is well established that matters relating to sentences within statutory limits are not a basis for post conviction relief. See State v. Birdwell, 188 Neb. 116, 195 N. W. 2d 502. The complaint regarding the presentence report could only affect the sentence imposed and falls in the same category. Furthermore, it is not alleged that access to the report was denied to defendant. He could have availed himself of the opportunity to amplify it or submit additional evidence. See § 29-2261 (5), R. S. Supp., 1974.

Assignments of error on grounds available to the defendant in the District Court must first have been presented to the District Court. See, § 29-3001, R. S. Supp., 1974; State v. Clingerman, 180 Neb. 344, 142 N. W. 2d 765.

The denial of request for court-appointed counsel on *390 appeal of a post conviction proceeding is properly refused when the record and files show the defendant- is not entitled to relief. See State v. Gero, 186 Neb. 379, 183 N. W. 2d 274.

No error' appearing, the judgment of the District Court is affirmed.

Affirmed.

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Newton, J.

This is a post conviction action. Defendant, on a plea *389 of guilty, was convicted of burglary. Pursuant to a plea bargain the State’s attorney recommended probation. Sentence was deferred pending a presentence investigation. During this period the defendant committed another felony. The original plea bargain was withdrawn but another one entered into. The State agreed to drop charges on the most recent felony if defendant adhered to his plea of guilty to the burglary charge. This he did and he received a flat 10-year sentence. Defendant was represented by counsel on both occasions.

Defendant assigns as error the failure to grant an evidentiary hearing, denial of a direct appeal, failure to appoint counsel in this proceeding, failure to include the presentence report in the record on appeal, that the report was incomplete and biased, and excessiveness of the sentence. We affirm the judgment of the District Court.

Defendant’s motion to vacate the judgment set out only two purported grounds, excessiveness of the sentence and an incomplete presentence-investigation report. It is evident that no grounds were presented to the District Court which would require an evidentiary hearing. It is well established that matters relating to sentences within statutory limits are not a basis for post conviction relief. See State v. Birdwell, 188 Neb. 116, 195 N. W. 2d 502. The complaint regarding the presentence report could only affect the sentence imposed and falls in the same category. Furthermore, it is not alleged that access to the report was denied to defendant. He could have availed himself of the opportunity to amplify it or submit additional evidence. See § 29-2261 (5), R. S. Supp., 1974.

Assignments of error on grounds available to the defendant in the District Court must first have been presented to the District Court. See, § 29-3001, R. S. Supp., 1974; State v. Clingerman, 180 Neb. 344, 142 N. W. 2d 765.

The denial of request for court-appointed counsel on *390 appeal of a post conviction proceeding is properly refused when the record and files show the defendant- is not entitled to relief. See State v. Gero, 186 Neb. 379, 183 N. W. 2d 274.

No error' appearing, the judgment of the District Court is affirmed.

Affirmed.

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227 N.W.2d 26, 193 Neb. 388, 1975 Neb. LEXIS 983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-taylor-neb-1975.

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