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State v. LaMountain4/19/2000
is case; petitioner is under no supervision by judicial officers, nor is he subject to incarceration without a trial and conviction. Therefore, he is not "in custody," and the court lacked jurisdiction to hear his petition.
Our decision accords with decisions in other states that the loss of a driver's license is not "custody" as contemplated by post-conviction relief provisions. See, e.g., State v. Blankenfeld, 423 N.W.2d 479, 482 (Neb. 1988) (permanent revocation of driver's license for DWI did not satisfy "in custody" requirement of post-conviction relief statute); Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (to be eligible for post-conviction relief, petitioner must be currently serving sentence of imprisonment, probation, or parole).
Because we find the court lacked jurisdiction to consider petitioner's post-conviction petition, we do not reach the substantive claim that petitioner's 1985 guilty plea was improperly accepted in the absence of a Rule 11 colloquy. Petitioner is not deprived of an avenue to challenge the conviction, however. Because he was not sentenced to any imprisonment, he falls within Rule 32(d) and may file a motion to withdraw his guilty plea in the 1985 case. See V.R.Cr.P. 32(d) (providing that motion to withdraw guilty plea may be made "at any time" by defendant whose sentence does not include term of imprisonment).
Reversed.
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