Hernandez v. State , 100 Idaho 581 ( 1979 )

602 P.2d 539 (1979) 100 Idaho 581

Alfonso M. HERNANDEZ, Plaintiff-Appellant,
v.
STATE of Idaho, Respondent.

No. 13037.

Supreme Court of Idaho.

October 25, 1979.

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.

PER CURIAM:

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.