Harvey PULVER, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.
No. 10227.
Supreme Court of Idaho.
Dec. 4, 1968.
448 P.2d 241
Allan G. Shepard, Atty. Gen., and Roger B. Wright, Deputy Atty. Gen., Boise, Hugh C. Maguire, Jr., Pros. Atty., Pocatello, for respondent.
TAYLOR, Justice.
August 18, 1967, plaintiff (appellant), an inmate of the state penitentiary, filed application for post-conviction relief under the provisions of the Uniform Post-Conviction Procedure Act. S.L.1967, ch. 25;
October 25, 1967, the district court appointed present counsel for the applicant, who noticed the state‘s motion to dismiss for hearing November 20, 1967. After hearing on the motion the court entered its “Memorandum Decision and Order,” (December 6, 1967) as follows:
“After argument was duly presented on behalf of the Movant as well as the Respondent, State of Idaho, and after due consideration of the files and records in the matter, it appears that none of the rights of the Movant were impugned or taken advantage of. It appears that he was duly represented, and was fully advised at all times as to his rights in the matter.
“IT IS, THEREFORE, ORDERED that unless new and additional grounds are presented to the Court that the Petition will be dismissed within 20 days, as provided by the statute.”
(We construe the last paragraph to mean that the petition would be dismissed after 20 days in the event no new or additional grounds were presented within that time.)
The applicable provisions of the post conviction procedure act,
“(b) When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant
is not entitled to post-conviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for so doing. the applicant shall be given an opportunity to reply within 20 days to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or, direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if there exists a material issue of fact.”
and
“A final judgment entered under this act may be reviewed by the Supreme Court of this state on appeal brought either by the applicant or by the state within 60 days from the entry of the judgment. On appeal the state shall be represented by the attorney general.”
In
“A judgment is the final determination of the rights of the parties in an action or proceeding.”
“* * * All rules and statutes applicable in civil proceedings including pre-trial, discovery and appellate procedures are available to the parties.”
“An appeal may be taken to the Supreme Court from a district court.
“1. From a final judgment in an action or special proceeding commenced in a district court * * *;”
An application for post-conviction relief is a special proceeding, civil in nature.
It is obvious from the provision of the post-conviction procedure act,
An interlocutory decision or order, such as this, not made appealable by statute, is not appealable, and may be reviewed by this court only on appeal from the final judgment. See
In the interest of procedure, we deem it appropriate to observe that the record in this case is so deficient that this court could not meaningfully review the decision of the lower court. The Post-Conviction Procedure Act requires that:
“* * * Affidavits, records, or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached. * * *”
I.C. § 19-4903 .
“* * * If the application is not accompanied by the record of the proceedings challenged therein, the respondent shall file with its answer the record or portions thereof that are material to the questions raised in the application.”
I.C. § 19-4906(a) .
The district court order recites that “files and records in the matter” were considered. The “files and records” were attached neither to plaintiff‘s petition nor to defendant‘s motion, nor were they certified to this court in accordance with Supreme Court Rule 35.
Plaintiff also contends that his sentence of not to exceed seventy-five years is illegal because, in effect, it exceeds the statutory maximum.
Appeal dismissed.
SMITH, C. J., and McFADDEN and SPEAR, JJ., concur.
McQUADE, Justice (dissenting):
The order of the district court in this case, though not final by its own terms, was treated as such by the state as well as the applicant. The provisions of
“A liberal allowance of appeals seems desirable since it will foster uniform limits on the exercise of discretion by trial courts and uniform interpretation of the scope of collateral attack under the act.”2 “Final disposition of applications should be made at the earliest stage consistent with the purpose of deciding claims on their underlying merits rather than on formal or technical grounds.3”