(dissenting).
[¶ 30.] We do not have authority to hear this habeas appeal because the Governor commuted the petitioner’s sentence and she was placed on parole. Our statutes provide that habeas petitioners are not entitled to relief unless they are “committed or detained, imprisoned or restrained” of their liberty. SDCL 21-27-1. Habeas petitioners must specify in their petitions the facts concerning their detention and in whose custody they are detained. SDCL 21-27-3. The petitioner is certainly not in the custody of the one she alleges, respondent Duane Russell, the warden of the women’s penitentiary. A writ issued to him would have no effect as he cannot deliver her or release her.
[¶ 31.] Concededly, parolees remain in the legal custody of the Department of Corrections and subject to the authority of the Board of Pardons and Paroles until their sentences expire. Nonetheless, parolees are not “imprisoned” or “detained” in physical custody and may not be placed back in prison unless they violate the conditions of their parole. People ex rel. Williams v. Morris, 44 Ill.App.3d 39, 2 Ill.Dec. 631, 357 N.E.2d 851, 853 (1976) (“Considering the history and nature of habeas corpus, we believe that actual custody is necessary for maintaining this action.”). Furthermore, the petitioner is in no danger of losing her parole status. No one alleges that she has violated her parole conditions and she is not awaiting parole revocation proceedings.
[¶ 32.] Other states have held likewise, although there is a split of authority on whether parolees can maintain a state ha-beas corpus action. See Andrea G. Nadel, J.D., When is a Person in Custody of Governmental Authorities for Purpose of Exercise of State Remedy of Habeas Corpus — Modem Cases, 26 A.L.R.4th 455 (1983). However, the better reasoned decisions hold that persons on parole no longer have their liberty restrained to such a degree that they are entitled to the extraordinary relief afforded through ha-beas corpus proceedings. People ex rel. Wilder v. Markley, 26 N.Y.2d 648, 307 N.Y.S.2d 672, 255 N.E.2d 784 (N.Y.1970). See In re Painter, 85 S.D. 156, 179 N.W.2d 12, 13 (1970) (person free on bond not eligible fof habeas relief).
[¶ 33.] The petitioner may have other remedies to challenge her conviction, but because she has been released from prison, habeas corpus is not a proper remedy. I would dismiss the petition.
[¶ 34.] GILBERTSON, Justice, joins this dissent.