(concurring).
[¶ 25.] I concur and write to emphasize that our precedent has been consistently in line with those courts holding that a parolee is not committed, detained, imprisoned, or otherwise restrained of his liberty sufficient to invoke habeas corpus relief. I also write to address an additional statutory argument raised by Bostick.
[¶ 26.] Although there is a split of authority among other courts on the right to habeas relief following parole, our decision is governed by our prior decisions on this issue. In Moeller v. Solem, 395 N.W.2d 165, 166 (S.D.1986), this Court held that a released prisoner seeking habeas relief is no longer under “restraint of liberty.” Therefore, if a habeas petitioner “is neither committed, detained, imprisoned, nor otherwise restrained of his liberty, the appeal is moot and it is unnecessary to consider the merits of [the request for habeas relief].” Id. (citing Moeller v. Solem, 363 N.W.2d 412, 414 (S.D.1986)). This Court explained:
... the additional burdens placed upon [the petitioner] in the penitentiary, [are] no longer a consideration ... thus, the conviction cannot be said to have some restraint upon his liberty. Inasmuch as we will not assume that [the petitioner] will commit another crime and be imprisoned again we will not entertain this appeal and hereby dismiss it as moot.
Id.
[¶ 27.] Although Bostick contends that we should adopt the contrary position adopted by some other courts, we have previously rejected this invitation. In Application of Painter, 85 S.D. 156, 160, 179 N.W.2d 12, 14 (1970), this Court stated that it was aware of the decision in Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), which concluded that a habeas corpus proceeding was not rendered moot when the petitioner was released from custody. However, we distinguished that federal position noting that “[t]he present federal habeas corpus statute [was] broader than the remedy afforded in this state.” Painter, 85 S.D. at 161, 179 N.W.2d at 14 (citation omitted).
[¶ 28.] Furthermore, after Painter, this Court decided Rennich-Craig v. Russell, 2000 SD 49, 609 N.W.2d 123, in 2000. In Rennich-Craig, three members of this Court determined that under the special facts of that case9 “Rennich[, a parolee, *524was factually] under the custody and control of the State, [therefore the] habeas action [was] not moot.” Id. ¶ 11 n. 4. However, three members of this Court also agreed that generally:
a person on parole is not entitled to bring a habeas corpus petition. However, if there is any evidence that such person is being physically confined or otherwise restrained of her liberty, then a habeas action is warranted.
Id. ¶ 27 (Miller, C.J., concurring specially) (emphasis added) (agreeing with Konen-kamp and Gilbertson, J.J., dissenting.)
[¶ 29.] Because the facts of Bostick’s case place him within this general rule, he raises an additional argument under SDCL 24-15-13, another provision of the Habeas Corpus Act. Bostick argues that by adopting that statute, the Legislature defined “custody” to include prisoners on parole.
[¶ 30.] SDCL 24-15-13 provides:
Each parolee shall at all times be considered confined, in the legal custody of the Department of Corrections, and shall remain under conviction for the crime for which the parolee was convicted and sentenced.
Under this statute, Bostick is under the legal custody of the Department of Corrections. However, his argument fails to recognize the difference between physical custody and legal custody. The court in People ex rel Williams v. Morris, 44 Ill.App.3d 39, 2 Ill.Dec. 631, 357 N.E.2d 851 (1976) explained the difference. It explained that, while a parolee is under the legal custody of the Department of Corrections:
a parolee is not imprisoned and is subject to reimprisonment only if he violates a condition of his parole. No one has actual custody or physical control of the parolee, and where, as here, the parolee is at liberty to come into court on his own, there is little sense in directing a writ of habeas corpus to a parole officer or parole board whose only authority to take physical custody of the parolee is dependent upon that parolee’s breaching of a condition of his parole.
Id. at 852. Additionally, “it is fundamental that habeas corpus is available to test the legality of present confinement only, and if the applicant is no longer incarcerated there is nothing for the courts to adjudicate.” Sorrow v. Vickery, 228 Ga. 191, 184 S.E.2d 462 (1971) (internal citations omitted).
Here, Bostick is no longer confined, and he is at liberty to come into court on his own. Because he is on parole, our prior decisions clearly preclude habeas corpus relief. SDCL 24-15-13 does not change that result. I therefore concur.
. The facts of that case reflected that:
[w]hile in prison, Rennich developed a debilitating illness, ... which left her confined to a wheelchair. Consequently, the degree of care that she required was beyond that offered in the women’s prison. Therefore, ... Rennich’s sentence [was commuted] conditioned on her signing a parole agreement with the Board of Pardons and Paroles. Pursuant to the agreement, Rennich [was] confined to the Kingsbury Memorial Manor in Lake Preston, South Dakota for medical assistance and care, subject to the usual terms and conditions of parole.
The following demonstrates some of the limitations of her parole: On October 16, 1998, Rennich formally requested that she be released from the Kingsbury Manor to attend the hearing on her Motion for Summary Judgment. The request, directed to the habeas court, involved the sheriff transporting her to the courthouse. The habeas court denied her request.
Id. ¶ 11 n. 4.