Opinion
No. 36338.
Filed November 25, 1966.
Constitutional Law: Criminal Law. If the motion of a prisoner and the files and records of the case show to the satisfaction of the district court that the prisoner is entitled to no relief under the Post Conviction Act, the court may overrule the motion without a hearing. 29-3001, R. S. Supp., 1965.
Appeal from the district court for Wheeler County: WILLIAM C. SMITH, JR., Judge. Affirmed.
Edward E. Hannon, for appellant.
Clarence A. H. Meyer, Attorney General, and Richard H. Williams, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and HASTINGS, District Judge.
Defendant moved under the Post Conviction Act for an order vacating a sentence of life imprisonment for the crime of murder in the second degree. The district court dismissed the motion without a hearing. See 29-3001, R. S. Supp., 1965. Defendant alleged that he had not been informed of his constitutional rights in respect to police interrogation and that he had been denied assistance of counsel.
The time and substance of police interrogation are speculative, and the record negatives a suggestion of prejudice. Defendant appeared without counsel at the preliminary hearing October 19, 1959, entering a plea of not guilty. On October 30, 1959, the district court appointed counsel who represented defendant throughout the remainder of the proceeding. Defendant pleaded guilty November 17, 1959, the court pronouncing judgment and sentence the same day. In this post conviction proceeding counsel was not appointed prior to dismissal of the motion.
A hearing is required "Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, * * *." 29-3001, R. S. Supp., 1965. The present appeal has no merit. See, State v. Sheldon, 179 Neb. 377, 138 N.W.2d 428; State v. Silvacarvalho, 180 Neb. 755, 145 N.W.2d 447. The judgment is affirmed.
AFFIRMED.