29-3003. Postconviction remedy; cumulative; dismissal; when.

The remedy provided by sections 29-3001 to 29-3004 is cumulative and is not intended to be concurrent with any other remedy existing in the courts of this state. Any proceeding filed under the provisions of sections 29-3001 to 29-3004 which states facts which if true would constitute grounds for relief under another remedy shall be dismissed without prejudice.

Source

Annotations

When presented with a motion for postconviction relief that exists simultaneously with a motion seeking relief under another remedy, a court must dismiss the postconviction motion without prejudice when the allegations, if true, would constitute grounds for relief under the other remedy sought; the question is not whether the petitioner believes he or she is entitled to the other remedy. State v. Harris, 292 Neb. 186, 871 N.W.2d 762 (2015).

The phrase "any other remedy" encompasses a direct appeal when the issue raised in the postconviction proceeding can be raised in the direct appeal. Thus, a motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal or which were known to the defendant and counsel at the time of the trial and which were capable of being raised, but were not raised, in the defendant's direct appeal. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

Post conviction remedy is cumulative. State v. Williams, 181 Neb. 692, 150 N.W.2d 260 (1967).

Remedy under Post Conviction Act is cumulative and is not intended to be concurrent and with any other remedy. State v. Dabney, 181 Neb. 263, 147 N.W.2d 768 (1967); State v. Carr, 181 Neb. 251, 147 N.W.2d 619 (1967).