                            No. 12573

        IN THE SUPREME COURT OF THE STATE OF MONTANA

                               1973




NICHOLAS JOHN DiGIALLONARDO,

                       Petitioner,

        VS.

DEAN S. BETZER, Sheriff of
Yellowstone County, Montana,

                       Respondent.




ORIGINAL PROCEEDING:



Counsel of Record:

        For Petitioner:

               Robert L. Stephens, Jr., Billings, Montana




                                        Submitted     August 8, 1973

                                          Decided:   NO\ 1 3973
PER CURIAM:
        This is an original proceeding wherein petitioner seeks
postconviction relief.    He was convicted of first degree burg-
lary by a jury in the district court of Yellowstone County.
        Charles F. Moses, attorney, was employed by petitioner
and codefendant, Joseph DeGesualdo, to represent them.
        Petitioner's conviction and that of his codefendant was
affirmed by this Court in State v. DiGiallonardo and DeGesualdo,

- .
 Mont         ,   503 P.2d 43, 29 St.Rep. 918.   On appeal we found
that the trial court did not abuse its discretion in denying
appellants' motion for continuance, that exhibits admitted were
not products of an unlawful arrest and that there was sufficient
corroborative testimony presented by the state to allow the use
of the testimony of an accomplice.
        Petitioner in applying for postconviction relief under
section 95-2601, R.C.M. 1947, urges that he was denied effective
counsel, that there was a material variance in the averments of
the pleadings as to the facts proven denying petitioner his
right to be informed of the nature and cause of the accusation
as guaranteed by the Sixth and Fourteenth Amendments to the
Constitution of the United States and that petitioner was denied
his right to due process and to a fair trial as guaranteed by
the Fifth, Sixth and Fourteenth Amendments to the Constitution
of the United States.
        Petitioner also urges that this Court reconsider all of
the issues that were raised on appeal.    With respect to those
issues we reaffirm our holding.
        The only issue properly raised by petitioner is that he
was denied effective counsel.
        This Court knows of the competency of trial counsel and
that same counsel handled the appeal.    Defendant's choice of
counsel cannot later be used as a guise for a new trial where
no showing of actual ineffectiveness is made.   Here we simply
have a new counsel who would have done things differently and
who would take every means to spring his client.
        The application is denied.
