THE STATE OF NEVADA, Appellant, v. ERNEST J. BANDICS, Respondent
State v. Bandics
Springer and Steffen, JJ., concur.
THE STATE OF NEVADA, Appellant, v. ERNEST J. BANDICS, Respondent.
THE STATE OF NEVADA, Appellant, v. ERNEST J. BANDICS, Respondent.
No. 21181
February 7, 1991
805 P.2d 66
[Rehearing denied May 2, 1991]
Frankie Sue Del Papa, Attorney General, Carson City; Karen M. Wright, Deputy Attorney General, Las Vegas; Rex Bell, District Attorney, Clark County, for Appellant.
William Smith and Annette R. Quintana, Las Vegas, for Respondent.
OPINION
By the Court,
Young, J.:
On July 24, 1981, Ernest J. Bandies was convicted, pursuant to a guilty plea, of one count of robbery with use of a deadly weapon and one count of grand larceny. NRS 200.380, 193.165, 205.220. Bandies was sentenced to two consecutive terms of fifteen years and one consecutive term of ten years in the Nevada State Prison, to be served concurrently with the twelve year federal sentence for bank robbery Bandies was already sentenced to serve.
In August of 1981, Bandies began his federal prison term. On March 24, 1988, the federal correctional institution in Phoenix sent a "detainer action letter" to the Department of Prisons in Nevada. That letter indicated that Bandies would be released on April 29, 1988, and that the Department of Prisons should make arrangements to pick up Bandies.
On April 11, 1988, Sharon Montgomery, a warrant coordinator with the Nevada Department of Prisons, wrote to Joyce Langhorst at the federal correctional institution in Phoenix and, referring to an earlier phone conversation, indicated that "Mr. Bandies was discharged from his Nevada sentence on January 4, 1986 and this department has no further interest in him." This information was apparently erroneous. On April 19, 1988, the federal correctional institution in Phoenix sent another "detainer action letter" to the Nevada Department of Prisons. This detainer action letter indicated that the detainer on Bandies had been removed pursuant to the state's request.
On June 1, 1988, Bandies was paroled from his federal sentence. Bandies violated his parole by using a controlled substance, and voluntarily reported this fact to his parole officer. On February 24, 1989, Bandies was arrested by federal officials for violating parole. Bandies was again paroled in September of 1989. On February 24, 1990, Bandies was arrested by Nevada authorities, who had discovered their error in releasing the Nevada detainer on Bandies.
On May 11, 1990, Bandies filed in the district court a petition for a writ of habeas corpus, alleging that the state could not lawfully reincarcerate him. On June 22, 1990, the district court granted Bandies' petition and ordered Bandies released from prison. This appeal by the state followed.
The district court, in granting Bandies' petition, found that principles of waiver, equitable estoppel, and due process prevented the state from reincarcerating Bandies. In these conclusions the district court erred. The central issue in deciding whether the state can lawfully reincarcerate a prisoner who has been mistakenly released is whether the state's conduct amounts to more than a ministerial error. See Green v. Christiansen, 732 F.2d 1397 (9th Cir. 1984); United States v. Merritt, 478 F.Supp. 804 (D.D.C. 1979). We emphasize that the analysis must focus on the conduct of the state, not that of the former prisoner. Although appellant did relapse after parole on one occasion and used drugs, we grant the point made in the dissent that Bandies' adjustment to freedom appears to be otherwise free of crime. Nevertheless, Bandies' behavior has no bearing on the question of whether the state has committed more than a simple, ministerial error.
Our review of the record convinces us that the state's mistake here was nothing more than ministerial error. Accordingly, we conclude that the district court's findings of waiver, equitable estoppel and violation of due process are clearly erroneous and not supported by substantial evidence. Accordingly, we vacate the district court's order granting Bandies' petition for a writ of habeas corpus, and remand this matter to the district court for further proceedings in light of this opinion.
Springer and Steffen, JJ., concur.