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Schlagel v. State (11/9/00) ap-1702
Schlagel v. State (11/9/00) ap-1702
NOTICE: The text of this opinion can be corrected before
the opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS D. SCHLAGEL, )
) Court of Appeals No. A-7538
Appellant, ) Trial Court No. 3DI-S99-267 CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1702 November 9, 2000]
)
Appeal from the District Court, Third Judicial
District, Dillingham, Donald D. Hopwood, Judge.
Appearances: Charles M. Merriner, Anchorage,
for Appellant. Eric A. Aarseth, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Following a bench trial, Thomas D. Schlagel was convicted
of violating 5 AAC 06.358(d)(1)(B), which provides that a "set
gillnet may not be set or operated within 150 feet of another set
gillnet." The State concedes that the trial court did not properly
apply the "first in time, first in right" rule a defense to
criminal charges for violating the minimum distance between units
of fishing gear [Fn. 1] to the facts in this case. Because we
find the State's concession to be well founded, we reverse.
On June 30, 1999, Schlagel and another fisherman, Byron
Lamb, were vying for the same set net site in the Wood River Special
Harvest Area. After the opening began, Schlagel was the first to
put his net in the water but Lamb deployed some of his net and threw
his outward anchor into the river before Schlagel was able to anchor
his net. Although it was undisputed that Schlagel was the first to
have a legal net in the water, the trial court found Schlagel guilty
of violating 5 AAC 06.358(d)(1)(B) because Lamb was the first to
throw his outward anchor in the water.
The State concedes that the trial court did not properly
apply the first in time rule. The State agrees with Schlagel that
the act that determines who is "first in time" is the first legal
web that is placed in the water. According to the State:
[F]rom an enforcement point of view, the only
practical starting point is the first legal web in the water. To
try and use the completed set would beg questions such as can a
person anchor only one square web or does it have to be the full
allowable length of net.
The State also concedes that Schlagel's conviction should be
reversed.
A confession of error by the State is entitled to great
weight. Nevertheless, this court must "independently review the
proceedings below to ensure that the error confessed is supported
by the record on appeal and has legal foundation." [Fn. 2] We have
independently reviewed the record and case law cited by the parties,
and agree that the act that determines who is "first in time" is
the first legal web that is placed in the water. [Fn. 3] We find
that the trial court erred in concluding that the Schlagel failed
to establish the "first in time" defense. Accordingly, Schlagel's
conviction is REVERSED.
FOOTNOTES
Footnote 1:
See Clucas v. State, 815 P.2d 384, 387-88 (Alaska App. 1991).
Footnote 2:
Martin v. State, 797 P.2d 1209, 1218 (Alaska App. 1990) (citing
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)).
Footnote 3:
See Fisher v. Everett, 66 F. Supp. 540, 543-44 (D. Alaska
1945); Snug Harbor Packing Co. v. Miller, 123 F. Supp. 150, 152 (D.
Alaska 1954).
