Bostick v. Weber1/19/2005
Considered on Briefs on November 15, 2004
[ .] Petitioner Fred A. Bostick filed a habeas corpus petition alleging ineffective assistance of counsel at his original trial in 1997. After a certificate of probable cause had been issued but before the habeas hearing was held, the Petitioner was paroled from the state penitentiary. The circuit court held Bostick's parole mooted his right to seek habeas relief in the courts of South Dakota. Bostick appealed contending the conditions of his parole constituted custody and imposed a significant restraint on his liberty within the meaning of SDCL 21-27-1, and therefore he was entitled to seek habeas relief. Affirmed.
FACTS AND PROCEDURE
[ .] On May 5, 1997, Fred A. Bostick escaped while a prisoner at the Minnehaha County Community Corrections Facility in Sioux Falls, South Dakota. Petitioner was charged with escape in violation of SDCL 22-11A-2, and subsequently convicted by a jury. On February 12, 1998, Petitioner was sentenced by the Honorable Judith Meierhenry to eight years in the state penitentiary.
[ .] In July 2001, Petitioner filed a pro se habeas action while in custody at the State Penitentiary. Attorney Steve Miller was appointed by the circuit court to assist Petitioner with his request for habeas relief. The State's motion to dismiss the petition was granted by the circuit court, which then denied a certificate of probable cause. After appeal, this Court issued an order of limited remand, directing that Petitioner's claim of ineffective assistance of counsel be heard on the merits and decided.
[ .] In December 2003, prior to the habeas hearing, Petitioner was granted parole effective February 3, 2004. A hearing was held in circuit court to determine if Petitioner's parole mooted his habeas action. The circuit court ruled the habeas action was mooted by Petitioner's parole and dismissed the habeas petition.
[ .] After the circuit court's dismissal of the habeas action on April 2, 2004, Petitioner requested a certificate of probable cause to appeal the circuit court's ruling on the issue of mootness. This Court issued an order of limited remand, directing the circuit court to determine the issue of mootness. The sole issue on appeal is one of first impression in South Dakota:
Whether a formerly incarcerated inmate on conditional parole, but not physically confined to a particular facility, is "committed or detained, imprisoned or restrained of his liberty" within the meaning of SDCL 21-27-1 such that a habeas corpus action is not rendered moot.
STANDARD OF REVIEW
[ .] "Statutory interpretation and application are questions of law." Block v. Drake, 2004 SD 72, , 681 NW2d 460, 463 (citing Steinberg v. State Dept. of Military Affairs, 2000 SD 36, , 607 NW2d 596, 599). We review conclusions of law concerning a writ of habeas corpus under the de novo standard, giving no deference to the lower court's decisions. Jackson v. Weber, 2001 SD 30, , 637 NW2d 19, 22 (citing Jenner v. Dooley, 1999 SD 20, , 590 NW2d 463, 468).
[ .] We use statutory construction to discover the true intent of the legislature in enacting the law, which is ascertained primarily from the language used in the statute. State v. Myrl & Roy's Paving, Inc., 2004 SD 98, , 686 NW2d 651, 653 (citing Martinmaas v. Engelmann, 2000 SD 85, , 612 NW2d 600, 611). We confine ourselves to the language used by the legislature in order to determine what the legislature said, rather than what the courts think it should have said. State v. I-90 Truck Haven Service, Inc., 2003 SD 51, , 662 NW2d 288, 290 (citing Martinmaas, 2000 SD 85, , 612 NW2d at 611). In doing so, we mu
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