Ostrosky v. State I

In 1979, Harold Ostrosky (defendant) and his daughters were convicted of fishing without a limited-entry permit. In August 1981, Ostrosky’s daughters moved for post-conviction relief, and the three convictions were set aside after a finding that the Limited Entry Act (the act) was unconstitutional. The state (plaintiff) appealed, and the case was taken up by the state supreme court for review. In the meantime, on July 3, 1983, a fish-and-wildlife officer again caught Ostrosky fishing without a permit but did not cite him. On July 7, the state filed an emergency stay of the previous judgment deeming the act unconstitutional until the appeal was resolved. The motion was granted. One day later, Ostrosky was cited for his July 3 infraction. On July 19, the state supreme court reversed the former decision on the act, upholding it as constitutional. Ostrosky filed a motion to dismiss his case, arguing that when he was cited for fishing on July 3, the act had been declared unconstitutional, and that he was thus entitled to rely on that judgment. The judge, however, stated that Ostrosky did not have a right to rely on the judgment because it could possibly be reversed on appeal. Ostrosky then testified that he thought he was fishing legally at the time and had been relying on the prior judgment and on assurances from his attorney that he would not be arrested for fishing that season. The judge denied Ostrosky’s request for jury instructions on reasonable reliance on a judicial decision and mistake of law. Ostrosky was convicted after a court trial, and he appealed.