Shaw v. Utecht

49 N.W.2d 385, 235 Minn. 55, 1951 Minn. LEXIS 745

• Court: Supreme Court of Minnesota
• Decided: October 5, 1951
• Docket: No. 35,608
• Status: Published

Opinion

Per Curiam.

Petitioner appeals from an order of the district court for Washington county dated May 8, 1951, denying his petition for a writ of habeas corpus. Respondent moves to quash the petition and to dismiss the appeal upon the ground that the petition fails to allege facts which entitle petitioner to the issuance of a writ.

We considered all the questions raised by the present petition in our opinion in Shaw v. Utecht, 232 Minn. 82, 43 N. W. (2d) 781, certiorari denied, 340 U. S. 855, 71 S. Ct. 73, 95 L. ed. 627. There, petitioner’s appeal from an order of the Washington county district court dated April 12, 1950, denying a similar petition, was dismissed and the petition quashed on the ground that it failed to state grounds or allege facts entitling petitioner to the issuance of a writ of habeas corpus.

The matter is here again on the same set of material facts. The record of the trial court’s proceedings submitted with petitioner’s present petition is identical with the record we previously considered. No new question of substance is raised by the present petition. Petitioner has served substantially less time than the minimum period of imprisonment required by the sentence imposed under the indeterminate sentence law (M. S. A. 637.01) for his conviction of robbery in the first degree, irrespective of any increased punishment for prior convictions. Since under no view of the record would petitioner be entitled to release at this time, his petition for the writ is premature. For the reasons stated in paragraph 4 of our former opinion (232 Minn. 82, 87, 43 N. W. [2d] 781, 785), respondent’s motion to quash the petition and to dismiss the appeal should be granted.

So ordered.