dissenting.
I dissent from the majority opinion for the following reasons: (1) The issue in this post conviction proceeding to vacate a judgment entered upon a plea of nolo contendere is one of fact, i.e., was the defendant’s plea voluntary. This court ignores the finding of fact by the District Judge which is clearly supported by the evidence and decides the issue here as one of law. We have often said: “In post conviction proceedings under section 29-3001 et seq., R. R. S. 1943, the District Court is the trier of disputed questions of fact and it is not ordinarily for the Supreme Court to determine questions of credibility.” State v. Davis, 203 Neb. 284, 278 N. W. 2d 351. (2) The “participation” by the District Judge, who presided at the aborted trial of the defendant and who accepted the plea and pronounced sentence, was clearly invited by the defendant’s own actions and *184comments. We have said that a defendant cannot complain of error which he invited the court to commit. State v. Kirby, 185 Neb. 240, 175 N. W. 2d 87; Stuckey v. Rohnert, 179 Neb. 727, 140 N. W. 2d 9; Davis v. State, 116 Neb. 90, 215 N. W. 785; Corcoran v. United States, 19 F. 2d 901 (8th Cir., 1927).
I have no quarrel with the abstract proposition that the trial judge is not to be a participant in plea bargaining discussions. Neither, of course, can anyone challenge the right of a defendant to have the jury speak the final word on his guilt or innocence no matter how overwhelming the evidence against him. The point is that in this case the evidence supports the conclusion of the District Judge that the defendant waived that right knowingly and intelligently.
In order to establish the propositions which I advance for this dissent, it is necessary to examine the record. The majority opinion accurately quotes the conversations between Svoboda and the trial judge. That, however, is not the whole picture. No mention is made of the testimony of the defendant’s attorney at the post conviction hearing. No mention is made of the “overwhelming” (an understatement) evidence of guilt. The fact that the trial judge used the quoted adjective did not tell the defendant something he was not already well aware of. No mention is made of the defendant’s actual admission of guilt before he tendered his nolo plea. Before the trial judge accepted the plea, he very carefully explained to Svoboda all his constitutional and statutory rights and gave assurances, which we will later quote, that a defendant is never penalized by him for insisting upon a trial. No mention is made of the defendant’s obviously sophisticated knowledge of criminal procedure. Surely the judge who presided at the post conviction hearing (not the same judge as the one who presided at trial and whose conduct is criticized) was entitled to consider all those things in making the factual determination of what induced the de*185fendant to plead rather than letting the jury decide.
Let us now examine the record. In the midst of the trial and in the presence of the jury, Svoboda announced: "Your Honor, I would like to disqualify Mr. Matejka as my attorney.” The court promptly called a recess and had the jury retire from the courtroom.
At the time Svoboda made his announcement, the State had presented the testimony of four witnesses. The evidence, up to that time, if believed by the jury, would have entitled them to find that the owner of the burglarized building observed the defendant in the act of leaving the building, carrying with him stolen property; and that the defendant was pursued and cornered by the owner and another civilian, and then arrested by the police whom someone had called during the chase.
Briefly summarized, the testimony was as follows. Samuel Moskovits, the owner of the six-plex apartment where the burglary took place, was working on an air conditioner outside the building when he noticed a stranger (Svoboda) leaving the back door of the building, carrying a large box-shaped object which was covered with a blanket. Svoboda also carried a radio. Moskovits, suspecting something was wrong, accosted Svoboda and raised the blanket. The object was a TV set which Moskovits immediately recognized as belonging to one of his tenants. Moskovits was an electronics technician and had performed services on that particular set. The witness then directed Svoboda to take the set back into the building. Svoboda put down the TV set, threatened Moskovits with a pipe wrench which he had in his pocket, and started to flee. Moskovits yelled for assistance and one of his tenants, Leehy, one of the four witnesses at trial, joined the chase, taking a different route than Moskovits, and intercepted Svoboda’s line of flight. He confronted Svoboda and was threatened with the wrench and he backed off. *186The chase continued until Svoboda fled into a bar. Moskovits covered one exit and Leehy the other. Inside the bar Svoboda entered the toilet room, took off the blue shirt which he had been wearing, and placed that and the wrench he had been carrying in a wastebasket. He then entered the bar in a T-shirt. About that time the police arrived, Svoboda was arrested in the bar, and the shirt and wrench were seized. The identification of Svoboda by Moskovits and Leehy was positive. The breaking and entering of the apartment and the theft were established by other evidence.
Out of the presence of the jury and during the exchange of conversation between the trial judge and Svoboda, Svoboda claimed, among other things: “. . . there is a conspiracy between the prosecution and Mr. Matejka [his attorney].” The judge asked Svoboda to be more specific. Svoboda said: ‘‘He tried to persuade me numerous times to plead guilty to a charge I don’t want to plead guilty to.” Also: ‘‘I feel he hasn’t defended me to the best of his ability. BY THE COURT: In what way? MR. SVOBODA: In every way, shape and form.” Svoboda then complained about a failure of counsel to object to certain testimony. He then charged that Matejka had a ‘‘conflict of interest” because Matejka had a prior acquaintanceship with Moskovits and had done legal work for him. He complained that Matejka had not ‘‘prepared my” defense.
Then occurred the interchange between the judge and Svoboda which is quoted in the court’s opinion. During the course of that exchange, the court said: ‘‘You do whatever you want. You have a Constitutional right to a trial and to have the State prove the guilt beyond reasonable doubt. . . . And you don’t have to accept any plea bargain. You are entitled to your Constitutional rights to a trial by jury, and that’s what we are having. ... I will never punish a defendant for exercising that Constitutional right, *187and I do not play any part in a plea bargain, . . .
It would have been well nigh impossible as well as unrealistic for the District Judge to respond to the defendant’s frivolous motion to permit dismissal of his own retained attorney without taking into consideration the strength of the State’s case against the defendant.
At the post conviction hearing, Svoboda made the same and numerous other complaints about the effectiveness of his counsel. We will not detail the testimony. Suffice it to say that it did not, on its face, appear credible and the trial judge was not required to believe it. The complaints about failure to object to testimony were of no merit whatever as the testimony was competent and relevant and the foundation therefor had been laid.
Mr. Matejka was called as a witness by the State and, on the advice of his then attorney, Svoboda waived the lawyer-client privilege. Matejka told of being called by Svoboda and talking to him at the county jail for about an hour. He advised Svoboda that he would have to go to the county attorney’s office and get a copy of the complete file, including the investigation. That he did. He testified that he read it thoroughly and went through it several times. He then went back to talk to Svoboda. Svoboda then admitted the crime as indicated by the investigative report. Svoboda’s only defense was that he would not have done it if he had not been drinking.
Svoboda had pending against him five criminal charges as well as two habitual criminal charges. Matejka advised Svoboda that the best thing to do was to plea bargain with the county attorney.
The record indicates that shortly before the trial commenced, Matejka had arranged that in exchange for a plea of guilty to two of the burglary charges and a charge of failure to appear, the other charges, including the two “bitches” (Svoboda’s *188phraseology for the recidivist charges) would be dismissed. Svoboda wanted a guarantee from Matejka that the sentences imposed by the judge would be concurrent. Matejka told him there was no way he could guarantee that. Svoboda then declined the bargain and the case went to trial.
After the interruption of the trial and after the exchange between Svoboda and the judge and before the plea was entered, Matejka and Svoboda had a private conversation, the bargain was still open, and Svoboda agreed that was the best route to go.
As to the alleged “conflict of interest,” Matejka acknowledged that he had known Moskovits and that about 18 years earlier he had represented him in a municipal court matter, but he actually did not recall that until Moskovits reminded him of it. Matejka denied accusations by Svoboda that he had agreed to try to bribe Moskovits in this case and thus get the charges dismissed.
While the charges involved in this case were pending, Svoboda apparently jumped bond. He was then arrested and charged with being a felon in possession of a firearm. Matejka represented Svoboda on that charge and secured a dismissal after preliminary hearing, apparently because of failure of the State to prove that Svoboda was a felon.
The trial judge testified during the post conviction hearing as to what had occurred.
The record of the trial shows that after Svoboda indicated he wanted to plead, his constitutional rights were explained to him in a most thorough manner by the trial judge. Svoboda waived all those rights. He acknowledged his plea was free and voluntary and he knew the effect thereof. The court, among other things, asked: “Do you feel you are guilty of this charge, the one we are trying now?” He answered: “Yes.”
How can it be said in the light of the evidence that the finding of the judge who conducted the post con*189viction hearing that the plea was intelligent and voluntary is not supported by the evidence? The outcome does not depend upon an “interpretation of the authorities,” as the majority says, but upon a factual determination.
This is not a good case to use as a vehicle to apply a “sanction” against society because one of its agents, the trial judge, was whipsawed by a knowledgeable defendant. Svoboda is about 41 years of age. He has been involved in burglary since 1949 and has numerous convictions for that offense and many others. He is obviously completely familiar with criminal court procedures.
This case, as the majority opinion shows, is now before this court for the third time. The decision of the court on this occasion ultimately means that it will appear before us a fourth time on direct appeal and probably then for a fifth time on post conviction review.
At this point I make the following personal observations, which I have previously made in the Law Day issue of the Omaha Daily Record 2 years ago.
In the area of criminal law, a criticism frequently voiced is that litigation never seems to end. Much of that criticism is completely justified. Review by direct appeal is followed by post conviction proceeding in the trial court and then another review of that proceeding in the court of last resort of the state, followed by collateral habeas corpus attack on the judgment in the federal district court, and then review by the federal court of appeals. Why such multiplicity is required to secure “justice” is difficult for the layman to understand. The truth is that it is not necessary for that end. Multiple, piecemeal, and parallel litigation is largely a phenomena of the last 25 years primarily as a consequence of decisions of the United States Supreme Court expanding the habeas corpus jurisdiction of the federal district courts. The practice should come to an end.
*190I would suggest that a partial solution to the problem would result from a repeal by the Nebraska Legislature of the Post Conviction Act. That act, enacted in 1965, was designed largely to provide relief in those cases where state convictions were believed to be constitutionally infirm because of a violation of constitutional rights “discovered” by the Supreme Court of the United States and given retroactive effect by that court after state convictions had become final. The Post Conviction Act, however, was not limited by its terms just to those cases. The newly discovered rights era seems to have come to an end and the original purpose of the Post Conviction Act is no longer served as the retroactive rights cases have all been reviewed. The act has now come to be used by some lawyers, as well as by prisoners who act pro se, as a routine tool for the prolongation of litigation. Some defense counsel now, deliberately and as a matter of tactical choice, fail to raise constitutional issues on direct appeal, saving them for a subsequent post conviction proceeding if the direct appeal fails to produce a reversal of the judgment. It was not the original purpose of the Post Conviction Act to foster piecemeal litigation. It was thought that it would relieve the federal courts of some of the load of habeas corpus cases arising from state court convictions. The fact is it resulted merely in putting two more steps into the multiple litigation process without in any way relieving the load on the federal courts.
There is nothing inherently unfair in requiring a defendant to raise on his direct appeal all of the errors he claims, including those involving alleged violations of constitutional rights, and in foreclosing him from thereafter raising them in the state courts if he does not. State habeas corpus proceedings should be available only where there is a jurisdictional defect resulting in a void judgment. The common law writ of error coram nobis is still available *191where there may have been an actual miscarriage of justice and where some fact or facts unknown at the time of trial are later discovered and these new fact or facts would probably result in a different verdict.
The Nebraska Legislature should repeal the Post Conviction Act, section 29-3001 et seq., R. R. S. 1943.