VIRGIL JENKINS, Appellant,
v.
STATE OF KANSAS, Appellee.

Paul V. Dugan, of Wichita, was on the brief for the appellant.

Vern Miller, attorney general, Keith Sanborn, county attorney, and Stephen M. Joseph, of counsel, were on the brief for the appellee.

MEMORANDUM OPINION

CRIMINAL LAW — Alibi Testimony — Notice — Due Process.

Per Curiam:

This is an appeal from an order denying a motion to vacate sentence filed pursuant to K.S.A. 60-1507. Appellant was convicted of first degree robbery. Upon direct appeal to this court the conviction was affirmed (State v. Jenkins, 203 Kan. 354, 454 P.2d 496).

Appellant claims he was denied the right of due process as guaranteed by the sixth and fourteenth amendments to the United States constitution when the district court refused to allow him to testify because the testimony constituted an alibi defense and appellant had failed to give prior notice as required by K.S.A. 62-1341. No notice of such defense had been given before the trial.

Notice of alibi defense as a condition to the admissibility of evidence that the defendant was somewhere else when the crime was committed was challenged upon constitutional grounds in State v. Rider, 194 Kan. 398, 399 P.2d 564. We found no constitutional violation.

In State v. Jenkins, supra, we held that evidence of alibi was properly rejected. This matter having been considered and rejected on direct appeal will not be reconsidered in an appeal from an order denying relief on a motion to vacate sentence under K.S.A. 60-1507 (Carter v. State, 199 Kan. 290, 428 P.2d 758; Basker v. State, 202 Kan. 177, 446 P.2d 780).

The judgment is affirmed.