Creech v. State ( 2002 )

Justice KIDWELL,

specially concurring.

Although I concur in the decision to dismiss Creech’s petition, I am writing separately because I believe it is important that this Court’s opinion not be read as indicating that this Court lacks jurisdiction to consider an appeal from a district court’s decision to dismiss a successive petition for post-conviction relief under I.C. § 19-2719. See Sivak v. State, 134 Idaho 641, 8 P.3d 636 (2000).

In several recent cases, this Court has affirmed district court decisions dismissing successive petitions, as opposed to dismissing the appeals from those decisions. See, e.g., Id.; Pizzuto v. State, 134 Idaho 793, 10 P.3d 742 (2000); McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999). Additionally, in the recent cases in which this Court has dismissed petitioners’ appeals, the dismissals were generally³ based upon this Court’s independent review of the petition and independent determination that the petition was facially insufficient, under I.C. § 19-2719, to warrant further appellate procedures. See, e.g., Rhoades v. State, 135 Idaho 299, 17 P.3d 243 (2000); Row v. State, 135 Idaho 573, 575, 21 P.3d 895, 897 (2001). I agree with this Court’s dispositions in those cases and I do not interpret those cases or I.C. § 19-2719(5) as implying that this Court lacks jurisdiction to consider a petitioner’s appeal from a district court’s decision to dismiss a successive petition for post-conviction relief.

3 . Porter v. State, 136 Idaho 257, 32 P.3d 151 (2001), utilized an analysis of the district court's decision throughout the opinion, but disingenuously suggested in the Conclusion section that the question was "not appealable.”