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Ostrosky v. State II

Alaska Court of Appeals
725 P.2d 1087 (1986)


In 1983, Harold Ostrosky (defendant) was caught fishing without the limited-entry permit required under the Limited Entry Act (the act). In 1981, the act had been held unconstitutional, but this decision was appealed by the state (plaintiff) and reversed in July 1983. Ostrosky was ultimately convicted for the 1983 violation. He appealed, arguing that he was entitled to a mistake-of-law defense. The appeals court remanded the case to allow Ostrosky to build this defense. During the hearing on remand, Ostrosky called his attorney, Frederick Paul, as a witness. Paul testified that he had represented Ostrosky between 1978 and 1983 in Ostrosky’s challenges to the act and his accompanying fishing violations. Paul stated that, after the 1981 decision declaring the act unconstitutional and the state’s subsequent appeal, he did not advise Ostrosky that he was free to fish. He told Ostrosky about the risks of fishing and noted there was a chance the decision could be reversed on appeal. Ostrosky also testified at the hearing, arguing that he had reasonably relied on the 1981 decision declaring the act unconstitutional. He stated that he had also read an article reporting that other courts had held the act unconstitutional as well. The superior court judge noted a discrepancy between the case Ostrosky put forth at the hearing on remand and the facts of his 1983 trial. Notably, in 1983, Ostrosky made the assertion that Paul had advised him that he would not be arrested for fishing without a permit. At the hearing on remand, however, Paul denied this. The judge further held that no reasonable person could rely on the 1981 decision because it was on appeal. Ostrosky knew the law and ignored it. The judge held that Ostrosky had not proven his defense by a preponderance of the evidence, as required. Ostrosky’s original sentence was imposed, and he appealed.

Rule of Law


Holding and Reasoning (Coats, J.)

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