NO. 93-388 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

RUDOLPH STANK0 , 

Petitioner and Appellant, 

-vSTATE OF MONTANA, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rudy Stanko, Laurel, Montana, pro se 

For Respondent: 

Dennis Paxinos, County Attorney, John Kennedy, 

Deputy County Attorney, Billings, Montana 

Submitted on Briefs: November 5, 1993 

Filed: 

Decided: December 10, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from the Thirteenth Judicial District, 

Yellowstone County, ordering defendant held on bail until his trial 

and denying defendant's subsequent petition for a writ of habeas 

corpus. We affirm. 

Rudy Stanko (Stanko) was charged by complaint in Yellowstone 

County with the misdemeanor offense of acting as an agent for a 

livestock dealer without possessing a livestock dealer's license. 

On June 11, 1993, he appeared in Yellowstone County Justice Court 

where a cash bail was ordered with respect to the misdemeanor 

charge. Stanko paid bail and is not now incarcerated. 

On June 21, 1993, Stanko filed a petition for writ of habeas 

corpus with the Thirteenth Judicial District Court. The court 

denied the petition because the petition did not satisfy the 

requirements for issuance for a writ and because the District Court 

did not have jurisdiction to dismiss a complaint filed in justice 

court. 

Stanko filed a notice of appeal to this Court on July 2, 1993, 

seeking to have this Court overturn the District Court's denial. 

Stanko's appeal is really an attempt to have this Court decide 

the question at issue. Stanko argues that he is due the writ 

because he is "restrained of liberty," which he defines as not 

being able to select and sell cattle. Stanko argues that he does 

not have to be incarcerated in order to be eligible for a writ of 

habeas corpus, he just needs to be restrained of liberty. Thus, 

what Stanko seeks from this Court is permission to reinstate his 
liberty interest, which he believes is his right to sell cattle 

without a license. 

The State argues Stanko has no right to a writ because he is 

not incarcerated. We agree. Section 46-22-101(1), MCA, provides: 

[Elvery person in prison or otherwise restrained of 

liberty within the state may prosecute a writ of habeas 

corpus to inquire into the cause of imprisonment or 

restraint. . . . 

Stanko is not incarcerated. His petition seeking a writ to release 

him from incarceration is then moot: 

The court cannot grant habeas corpus relief when the 

petitioner is not in custody. 

State v. Sor-Lokken (1991), 247 Mont. 343, 351, 805 P.2d 1367, 

1373. Here, the court was without any power to grant Stanko his 

request. 

Affirmed . 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

We Concur: