Public-domain · open source
OpenJurist

194 Neb. 270

231 N.W.2d 357

State v. DeLoa

Nebraska Supreme Court

Decided July 3, 1975

Nebraska Supreme Court · decided 1975-07-03

Cited by 8 later decisions — most recently July 1984

8 state decisions

Key passage — most relied on by later courts

“(1) Whoever has been twice convicted of crime, sentenced and committed to prison, in this or any other state, or by the United States, or once in this state and once at least in any other state, or by the United States, for terms of not less than one year each, shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal, and shall be punished by imprisonment in the Nebraska Penal and Correctional Complex for a term of not less than ten nor more than sixty years ....”

quoted by 1 later decision, including State v. Rolling

Relies on State v. Suggett · State v. Birdwell · State v. Miles

Good law ✅— No negative treatment on recordhow we know

Decided 1975-07-03

View the full empirical analysis of this case →

Brodkey, J.

¶1 The defendants were jointly tried and convicted of robbery and were sentenced to terms of 9 to 20 years imprisonment in the Nebraska Penal and Correctional Complex. On appeal to this court, the judgments were affirmed. See, State v. Huerta, 191 Neb. 280, 214 N. W. 2d 613 (1974); State v. DeLoa, 191 Neb. 290, 214 N. W. 2d 621 (1974). They now appeal from the order of the District Court denying their respective post conviction motions to vacate and set aside their judgments and sentences on the ground that in each case the court imposed minimum sentence exceeds the statutory requirement of one-third of the maximum sentence when imposing an indeterminate sentence under section 83-1,105, R. S. Supp., 1974. We affirm.

¶2 Defendants have failed to allege or demonstrate any infringement of constitutional rights necessary for relief under the Nebraska Post Conviction Act, sections 29-3001 et seq., R. S. Supp., 1974. See State v. Whited, 187 Neb. 592, 193 N. W. 2d 268 (1971). Section 28-414, R. R. S. 1943, provides that one convicted of robbery may be imprisoned for a term of not less than 3 years *271 nor more than 50 years. Defendants’ sentences are clearly within the statutory limits. We have uniformly held that matters relating to sentences imposed within statutory limits are not a basis for post conviction relief. State v. Miles, ante p. 128, 230 N. W. 2d 227 (1975); State v. Taylor, 193 Neb. 388, 227 N. W. 2d 26 (1975); State v. Birdwell, 188 Neb. 116, 195 N. W. 2d 502 (1972). We also note that defendant, DeLoa, raised the same issue in his first appeal that he now raises in this post conviction appeal. Our opinion in State v. DeLoa, supra, contains the following statement: “Defendant’s contention that the minimum sentence imposed by the court cannot exceed one-third of the maximum sentence imposed by the court was answered in State v. Suggett, 189 Neb. 714, 204 N. W. 2d 793.” It still is. See State v. Wade, 192 Neb. 159, 219 N. W. 2d 233 (1974).

¶3 Affirmed.

/194/neb/270 · .json · Public domain