                             NO.    93-388
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993


RUDOLPH STANK0 ,
           Petitioner and Appellant,
     -v-
STATE OF MONTANA,
           Respondent and Respondent.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Russell K. Fillner, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Rudy Stanko, Laurel, Montana, pro se
           For Respondent:
                Dennis Paxinos, County Attorney, John Kennedy,
                Deputy County Attorney, Billings, Montana


                             Submitted on Briefs:       November 5, 1993
                                             Decided:   December 10, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from the Thirteenth Judicial District,
Yellowstone County, ordering defendant held on bail until his trial
and denying defendant's subsequent petition for a writ of habeas
corpus.   We affirm.
     Rudy Stanko (Stanko) was charged by complaint in Yellowstone
County with the misdemeanor offense of acting as an agent for a
livestock dealer without possessing a livestock dealer's license.
On June 11, 1993, he appeared in Yellowstone County Justice Court
where a cash bail was ordered with respect to the misdemeanor
charge.   Stanko paid bail and is not now incarcerated.
     On June 21, 1993, Stanko filed a petition for writ of habeas
corpus with the Thirteenth Judicial District Court.       The court
denied the petition because the petition did not satisfy the
requirements for issuance for a writ and because the District Court
did not have jurisdiction to dismiss a complaint filed in justice
court.
     Stanko filed a notice of appeal to this Court on July 2, 1993,
seeking to have this Court overturn the District Court's denial.
     Stanko's appeal is really an attempt to have this Court decide
the question at issue.    Stanko argues that he is due the writ
because he is "restrained of liberty," which he defines as not
being able to select and sell cattle.   Stanko argues that he does
not have to be incarcerated in order to be eligible for a writ of
habeas corpus, he just needs to be restrained of liberty.     Thus,
what Stanko seeks from this Court is permission to reinstate his
liberty interest, which he believes is his right to sell cattle
without a license.
        The State argues Stanko has no right to a writ because he is
not incarcerated.    We agree.   Section 46-22-101(1), MCA, provides:
        [Elvery person in prison or otherwise restrained of
        liberty within the state may prosecute a writ of habeas
        corpus to inquire into the cause of imprisonment or
        restraint.  ...
Stanko is not incarcerated. His petition seeking a writ to release
him from incarceration is then moot:
        The court cannot grant habeas corpus relief when the
        petitioner is not in custody.
State v. Sor-Lokken (1991), 247 Mont. 343, 351, 805 P.2d 1367,
1373.     Here, the court was without any power to grant Stanko his
request.
     Affirmed   .
        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.

We Concur:
