State v. Dittrich

390 N.W.2d 527 (1986)

223 Neb. 461

STATE of Nebraska, Appellee, v. Laddie DITTRICH, Appellant.

No. 85-805.

Supreme Court of Nebraska.

July 18, 1986.

Anthony S. Troia and Martin G. Cahill, Omaha, for appellant.

Robert M. Spire, Attorney General, and Calvin D. Hansen, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

WHITE, Justice.

This is an appeal by defendant-appellant from an order of the district court for *528 Douglas County denying his amended motion to vacate and set aside his conviction and sentence on the charge of murder in the first degree on May 31, 1973. On February 28 and September 19, 1985, hearings were held on defendant's motion. Testimony was offered orally and by deposition. Defendant's motion was overruled, and his subsequent motion for new trial was denied. Defendant's complaint is that his counsel rendered ineffective assistance, and he assigns as error that the district court erred as a matter of law in denying his postconviction motion.

Appellant has not made the record of the proceedings below available to this court as required by Neb.Ct.R. of Prac. 5C(5) (rev. 1983). An assignment of error requiring examination of evidence cannot prevail on appeal in the absence of a proper bill of exceptions. State v. Loschen, 221 Neb. 315, 376 N.W.2d 792 (1985). The judgment of the district court is therefore affirmed.

AFFIRMED.