In this appeal the Department of Corrections challenges the trial court’s granting *1090of appellee’s petition for writ of habeas corpus entered on May 5, 1983.

On May 11, 1983, the same day notice of appeal was filed with this court, appellant filed a motion in the trial court seeking a stay of appellee’s release pending the outcome of the appeal. The trial court denied the motion finding that appellee had been released from custody. Therefore, the trial court found that no useful purpose would be served by granting the motion to stay. We point out that appellant did not seek a stay from this court.

In view of appellee’s release and appellant’s failure to file a motion for stay with this court, we affirm the trial court’s issuance of the writ of habeas corpus.

AFFIRMED.