Balla v. State

• Decision Date: 27 April 1977
• Docket Number: No. 12314,12314
• Citation: 98 Idaho 344,563 P.2d 402
• Parties: Walter Dale BALLA, Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Supreme Court

Page 402

563 P.2d 402

98 Idaho 344

Walter Dale BALLA, Appellant, v. STATE of Idaho, Respondent.

No. 12314.

Supreme Court of Idaho.

April 27, 1977.

Alan E. Trimming, of Charles F. McDevitt & Associates, Boise, for appellant. Wayne L. Kidwell, Atty. Gen., James F. Kile, Asst. Atty. Gen., Boise, for respondent.

PER CURIAM.

This is an appeal from the dismissal of a petition filed by Walter Dale Balla, petitioner-appellant, under Idaho's Post-Conviction Procedure Act, I.C. § 19-4901.

Balla escaped from the Idaho State Correctional Institution in July 1973, was found in the state of Washington and extradited to Idaho. Here he was charged with the crime of escape, I.C. § 18-2505 and in addition it was alleged that he was a persistent violater, I.C. § 19-2514. Following trial, Balla was found guilty of both the escape and being a persistent violator. Balla filed for post-conviction relief, I.C. § 19-4901, which petition was dismissed by the lower court in its memorandum decision and order of June 14, 1976.

No issue is raised in this appeal as to the legality or merits of the extradition procedure, the merits or legality of the judgment of conviction of escape nor is there any argument as to the existence of questions of fact. Petitioner on appeal asserts only that the lower court erred in failing to give petitioner notice of its intention to dismiss the petition. Petitioner argues that such action is contrary to the provisions of I.C. § 19-4906(b) which provides in part:

'It (the court) may indicate to the parties its intention to dismiss the application and its reason for doing so. The applicant shall be given an opportunity to reply within twenty (20) days to the proposed dismissal.'

Since the said statute is couched in the permissive term 'may' and since admittedly no questions of fact were then in issue, we find no error in procedure used by the trial court. I.C. § 19-4906(c) provides authority for summary disposition of a petition for post-conviction relief in stating:

'The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and a moving party is entitled to judgment as a matter of law.'

We further note that two days following the entry of dismissal Balla wrote the district court and that correspondence, broadly taken, can be construed as a petition for reconsideration. Further, almost immediately thereafter this appeal was filed. Hence, even if petitioner is correct, no prejudice resulted.

Clearly no questions of fact existed and petitioner admits that only legal issues existed in the lower court and exist here. Balla argues that the trial court erred in failing to consider petitioner's assertion of the unconstitutionality of the persistent violator statute, I.C. § 19-2514, in that it is selectively and non-uniformly enforced. We disagree. The statute does not violate the Equal Protection Clause. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446...