Ostrosky v. State

725 P.2d 1087 (1986)

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Nature of the Case

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Facts

On retrial, the court concluded that D had not established the defense of reasonable mistake of law by a preponderance of the evidence and reimposed D's original sentence. D appealed. On remand, D called Frederick Paul, the attorney who represented him. The attorney testified that he knew the state had never applied for a stay of the decision while the appeal was pending, and this was one of the 'factors' he discussed with D. The attorney explained that he told D his fishing was not a crime under the ruling, assuming there was no reversal on appeal. D understood that there was a risk of reversal. He also told Ostrosky D that 'while technically, he was -- he could be found guilty, . . . . there would be some amelioration.' The attorney also testified that there were no other cases that he knew of challenging the constitutionality of the entire Limited Entry Act. D argued that he had acted reasonably. P argued that D had failed to meet his burden of establishing by a preponderance of the evidence that his reliance on the 1981 order was reasonable. The judge held that an objective standard would determine what was reasonable. He found that no reasonable person could reasonably rely upon the trial court's decision in this case. D appealed.