Post-Conviction Claims May Not be Dismissed Without Notice to Petitioner

The Court of Appeals, per Judge Perry, reversed in part the dismissal of a post-conviction petition due to lack of notice of the district court's intent to dismiss.

Before doing so, it applies the Supreme Court's DeRushe' rule that the adequacy of the state's motion to dismiss may not be challenged for the first time on appeal. (DeRushe' came out after oral argument in this case). The Court then reads DeRushe' to not bar a challenge to "claims which were dismissed without any notice and claims that were dismissed by the district court on a ground other than those relied on in the state's memorandum." The Court then reviews the claims and finds that several had been dismissed without any notice. It then remands to the trial court for further proceedings on those issues.

Judge Lansing concurred with the above but wrote separately "to make some suggestions to the trial court and to Kelly's counsel that could avoid the need for similar appeals in the future." First, Judge Lansing praised the district court for its detailed order dismissing the case but notes "most of the present appellate challenge . . . could have been prevented if the district court had presented this detailed opinion as a notice of intent to dismiss . . . before it entered its dismissal order."

The Judge then sends a message to us:

"I would also like to point out to Kelly's counsel -- and to all attorneys who represent post-conviction petitioners -- that when a post-conviction action has been dismissed without adequate notice, rather than taking an immediate appeal it would ordinarily be much more expedient for the petitioner to file a motion . . . for relief from the judgment under Idaho Rule 59(e). Bringing the error to the district court's attention in this manner would give the court an opportunity to take prompt corrective action and could eliminate the need for, and the delay attending, an appeal."

Kelly v. State, http://www.isc.idaho.gov/opinions/Kelly-opn.pdf

That's a good tip for post-conviction practitioners. Justice delayed is less justice. For example, Mr. Kelly is already at a work release center and may be on parole by the time the case gets resolved in the district court. It would have been better for the district court to have sorted out the notice mess right away. (I assume the reference to "Kelly's counsel" means the attorney who will be appointed on remand, as Mr. Kelly was pro se in the district court and appellate counsel was not appointed until after the 14 days one has to file a Rule 59(e) motion. That quibble aside,) Judge Lansing makes a good point.