COURT OF APPEALS DECISION DATED AND RELEASED May 2, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1286
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
DAVID J. RUSTAD,
Plaintiff-Appellant,
v.
MICHAEL SULLIVAN,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Dane County:
MARK A. FRANKEL, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. David Rustad appeals from an order dismissing his
petition for review of a parole revocation decision. Rustad filed his petition nine months after his parole was
revoked and labeled it a petition for habeas corpus relief. The trial court construed it as a petition
for a writ of certiorari, and dismissed it as untimely under the six-month
laches rule. See State ex
rel. Czapiewski v. Milwaukee City Serv. Comm'n, 54 Wis.2d 535, 538-39,
196 N.W.2d 742, 743 (1972). We affirm
the dismissal.
Certiorari is the only
means to review a revocation decision. See State ex rel. Johnson v. Cady, 50 Wis.2d
540, 549-50, 185 N.W.2d 306, 311 (1971).
Rustad argues that review by habeas corpus should also be available
where review by certiorari is no longer possible. He cites State ex rel. McMillian v. Dickey, 132
Wis.2d 266, 392 N.W.2d 453 (Ct. App. 1986), for that proposition. However, in McMillian, the
petitioner filed a timely certiorari petition and the court then failed to act
on it for several years. This court
held that habeas corpus provided a remedy for the claim that the trial court
violated due process by delaying action on the certiorari petition. Id. at 279, 392 N.W.2d at
458. We did not hold that habeas corpus
could substitute for certiorari review of the original decision. Because the latter remains the sole means
for judicial review of a revocation decision, and because Rustad did not pursue
it in a timely fashion, a remedy by other means is no longer available.
By the Court.—Order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.