Hernandez v. State, 13037
| Decision Date | 25 October 1979 |
| Docket Number | No. 13037,13037 |
| Citation | 100 Idaho 581,602 P.2d 539 |
| Parties | Alfonso M. HERNANDEZ, Plaintiff-Appellant, v. STATE of Idaho, Respondent. |
| Court | Idaho Supreme Court |
Alfonso M. Hernandez, pro se.
David H. Leroy, Atty. Gen., Lynn E. Thomas, P. Mark Thompson, Deputy Attys. Gen., Boise, for respondent.
Before DONALDSON, C. J., SHEPARD and McFADDEN, JJ., and DUNLAP and ROWETT, JJ. Pro Tem.
Appellant, presently incarcerated at the Idaho State Correctional Institution on three convictions under the controlled substances act, petitioned the district court for a writ of habeas corpus on June 7, 1978, (case no. 1317). The court denied this petition, sua sponte, for the reason that it raised the same issues of law and fact as a previous habeas corpus petition (case no. 1141), which had been dismissed after adjudication on the merits and no appeal had been taken. Appellant claims this was error.
It is well settled that a petitioner in habeas corpus is not entitled to subsequent writs unless he raises some new issue of law or fact which had not been considered originally. Coffelt v. State, 92 Idaho 235, 237, 440 P.2d 355, 357 (1968).
The district court's record in case number 1141 was not certified on appeal to this Court and consequently we have no basis on which to determine whether or not the court erred in holding that no new issue of law or fact was raised by the petition in case number 1317. We will not presume error from a silent record. The burden of establishing error was on appellant. State v. Wolfe, 99 Idaho 382, 390, 582 P.2d 728, 736 (1978). Appellant has failed to meet this burden.
The order denying and dismissing the petition is affirmed.
To continue reading
Request your trial
-
Stuart v. State
...v. Dermitt, 102 Idaho 591, 635 P.2d 955 (1981); Kraft v. State, 100 Idaho 671, 674, 603 P.2d 1005, 1008 (1979); Hernandez v. State, 100 Idaho 581, 602 P.2d 539 (1979); Potter v. State, Idaho [612, 759] P.2d In this case the validity of Stuart's sentence was considered by this Court in his d......
-
State v. Beam, s. 16542
...v. Dermitt, 102 Idaho 591, 635 P.2d 955 (1981); Kraft v. State, 100 Idaho 671, 674, 603 P.2d 1005, 1008 (1979); Hernandez v. State, 100 Idaho 581, 602 P.2d 539 (1979); Potter v. State, 114 Idaho 612, 759 P.2d 903 Beam's post conviction relief petition did not raise factual material "not pre......
-
Quinlan v. Idaho Com'n for Pardons and Parole
...from the denial of a petition for writ of habeas corpus, the petitioner has the burden of establishing error. Hernandez v. State, 100 Idaho 581, 602 P.2d 539 (1979). When reviewing an exercise of discretion in a habeas corpus proceeding, the appellate court conducts a multi-tiered inquiry t......
-
Brennan v. State
...from the denial of a petition for writ of habeas corpus, the petitioner has the burden of establishing error. Hernandez v. State, 100 Idaho 581, 602 P.2d 539 (1979). When we review an exercise of discretion in a habeas corpus proceeding, we conduct a multi-tiered inquiry to determine: (1) w......