Opinion
No. 40113.
Filed October 9, 1975.
Post Conviction: Pleadings: Motions, Rules, and Orders. 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.
Appeal from the District Court for Douglas County: JAMES A. BUCKLEY, Judge. Affirmed.
Robert W. Haskett, pro se.
Paul L. Douglas, Attorney General, and Steven C. Smith, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and KUNS, Retired District Judge.
This is a post conviction proceeding. The defendant was found guilty of second degree murder. In January 20, 1975, the defendant filed a motion for post conviction relief, which was denied in part and sustained in part. On February 21, 1975, the defendant filed a second motion seeking a rehearing on the first motion, stating that he had failed to raise issues in the first motion which were contained in the second motion. The defendant's second motion was denied, and the defendant appeals.
"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. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971). See, also, State v. Hall, ante p. 173, 231 N.W.2d 123 (1975).
The issues raised by the defendant in his second motion were available at the time of his first motion and could have been raised then. "The trial court is not required to entertain successive motions under the Post Conviction Act for similar relief from the same prisoner." State v. Huffman, 190 Neb. 319, 207 N.W.2d 696 (1973).
The District Court acted properly and within its discretion in denying the defendant's second motion.
The judgment of the District Court is correct and is affirmed.
AFFIRMED.