Wednesday, February 28, 2007

Post conviction counsel who argues trial counsel was ineffective should be effective. A Hall County District Court jury convicted the defendant of a drug possession crime and the Court sentenced her to prison. While on an appeal bond, the Defendants attorney failed to appeal. New defense counsel and the county attorney stipulated that defendant's former counsel was ineffective for not filing the appeal. The district court allowed the defendant to appeal based solely on the parties' stipulation. Court of Appeals dismisses appeal because the District court did not find that counsel had been ineffective by failing to appeal. State v. Murphy, A-05-1210, 15 Neb. App. 398 Under § 29-3001, the jurisdiction for post conviction relief depends upon the existence of circumstances whereby “there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Constitution of this state or the Constitution of the United States.” The same post conviction statute requires the district court to “make findings of fact and conclusions oflaw with respect thereto.” Id. In this case there were no allegations of fact, no stipulations of fact, and no findings of fact showing any such denial or infringement of Murphy’s constitutional rights. The stipulation sets forth only the bare conclusory agreement that “an Appeal” be allowed, and the district court’s order merely implements that stipulation...Appeal dismissed.

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