Hernandez v. State

Idaho Supreme Court

Hernandez v. State

602 P.2d 539, 100 Idaho 581, 1979 Ida. LEXIS 495

CourtIdaho Supreme Court

DecidedOctober 25, 1979

Docket13037

StatusPublished

Cited by7 cases

This text of 602 P.2d 539 (Hernandez v. State) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hernandez v. State, 602 P.2d 539, 100 Idaho 581, 1979 Ida. LEXIS 495 (Idaho 1979).

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Opinion

PER CURIAM:

Appellant, presently incarcerated at the Idaho State Correctional Institution on three convictions under the controlled substances act, petitioned the district court for a writ of habeas corpus on June 7, 1978, (case no. 1317). The court denied this petition, sua sponte, for the reason that it raised the same issues of law and fact as a previous habeas corpus petition (case no. 1141), which had been dismissed after adjudication on the merits and no appeal had been taken. Appellant claims this was error.

It is well settled that a petitioner in habeas corpus is not entitled to subsequent writs unless he raises some new issue of law or fact which had not been considered originally. Coffelt v. State, 92 Idaho 235, 237, 440 P.2d 355, 357 (1968).

The district court’s record in case number 1141 was not certified on appeal to this Court and consequently we have no basis on which to determine whether or not the court erred in holding that no new issue of law or fact was raised by the petition in case number 1317. We will not presume error from a silent record. The burden of establishing error was on appellant. State v. Wolfe, 99 Idaho 382, 390, 582 P.2d 728, 736 (1978). Appellant has failed to meet this burden.

The order denying and dismissing the petition is affirmed.

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PER CURIAM:

Appellant, presently incarcerated at the Idaho State Correctional Institution on three convictions under the controlled substances act, petitioned the district court for a writ of habeas corpus on June 7, 1978, (case no. 1317). The court denied this petition, sua sponte, for the reason that it raised the same issues of law and fact as a previous habeas corpus petition (case no. 1141), which had been dismissed after adjudication on the merits and no appeal had been taken. Appellant claims this was error.

It is well settled that a petitioner in habeas corpus is not entitled to subsequent writs unless he raises some new issue of law or fact which had not been considered originally. Coffelt v. State, 92 Idaho 235, 237, 440 P.2d 355, 357 (1968).

The district court’s record in case number 1141 was not certified on appeal to this Court and consequently we have no basis on which to determine whether or not the court erred in holding that no new issue of law or fact was raised by the petition in case number 1317. We will not presume error from a silent record. The burden of establishing error was on appellant. State v. Wolfe, 99 Idaho 382, 390, 582 P.2d 728, 736 (1978). Appellant has failed to meet this burden.

The order denying and dismissing the petition is affirmed.

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602 P.2d 539, 100 Idaho 581, 1979 Ida. LEXIS 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-v-state-idaho-1979.

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