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LANGE v. WEBER

No. 20821.

602 N.W.2d 273 (1999)

1999 SD 138

Mary LANGE, Applicant and Appellant, v. Douglas WEBER, Warden of South Dakota State Penitentiary, Appellee.

Supreme Court of South Dakota.

Decided October 27, 1999.

Attorney(s) appearing for the Case

Susan Kirkvold, Sioux Falls, for applicant and appellant.

Mark Barnett, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, for appellee.

MILLER, Chief Justice.

[¶ 1.] The habeas judge dismissed Mary Lange's application for writ of habeas corpus as frivolous. He then issued a certificate of probable cause in order to permit her to appeal. Because we hold that dismissing a habeas petition on the basis of frivolity is not reconcilable with the subsequent issuance of a certificate of probable cause, we reverse, strike the certificate of probable cause and remand to the trial court for reconsideration...

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