764 P.2d 439 (Idaho App. 1988), 17188, Larkin v. State

Docket Nº:17188.
Citation:764 P.2d 439, 115 Idaho 72
Opinion Judge:WALTERS,
Party Name:Robert F. LARKIN, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:R. Ted Israel, Deputy Public Defender, Pocatello, for petitioner-appellant. Jim Jones, Atty. Gen., David R. Minert, Deputy Atty. Gen., Boise, for respondent.
Judge Panel:BURNETT and SWANSTROM, JJ., concur.
Case Date:October 27, 1988
Court:Court of Appeals of Idaho
 
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Page 439

764 P.2d 439 (Idaho App. 1988)

115 Idaho 72

Robert F. LARKIN, Petitioner-Appellant,

v.

STATE of Idaho, Respondent.

No. 17188.

Court of Appeals of Idaho.

October 27, 1988

R. Ted Israel, Deputy Public Defender, Pocatello, for petitioner-appellant.

Jim Jones, Atty. Gen., David R. Minert, Deputy Atty. Gen., Boise, for respondent.

WALTERS, Chief Judge.

This is an appeal from an order of the district court denying an application for relief under the Post-Conviction Procedure Act. The basis for the application was an allegation that the petitioner, Robert Larkin, was unconstitutionally being subjected to cruel and unusual punishment. We affirm.

The appellant, Robert Larkin, is serving an indeterminate sentence of fifteen years, imposed in 1976 following his conviction for second degree murder in Bannock County. He has been released twice on parole. However, each release subsequently was revoked upon proof that Larkin had violated a condition restricting his use of alcohol while on parole. After his return to the confines of the penitentiary because of his latest parole revocation, Larkin filed an application for post-conviction

Page 440

[115 Idaho 73] relief with the district court in Bannock County. 1

Asserting that he is an alcoholic and is not receiving treatment for alcoholism while he is in the penitentiary, Larkin petitioned the district court for relief from his sentence on the ground that he was being subjected to cruel and unusual punishment. The district court held an evidentiary hearing at which Larkin was the only witness who testified. Following that hearing, the district court ruled that Larkin had failed to prove the allegations of his petition. The court held:

Even though the only witness called in the hearing was petitioner and the State submitted no evidence other than cross examination, this Court is unable to conclude either that [Larkin] has a serious alcoholic condition or that the Idaho Department of Corrections is unable to treat such a condition.... The evidence does support that petitioner's prior violatons [sic] of parole were solely related to substance abuse, but by his own testimony petitioner did not establish that he was an alcoholic in need of specific treatment. This Court is unable to conclude from the facts brought forth at the hearing that petitioner's claims have been proven and thus the Petition for Post Conviction...

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