Collier v. Denato

• Decision Date: 17 November 1976
• Docket Number: No. 59291,59291
• Citation: 247 N.W.2d 236
• Parties: Eddie Deno COLLIER, Petitioner, v. The Honorable J. P. DENATO, Judge, Polk County District Court, Respondent.
• Court: Iowa Supreme Court

Page 236

247 N.W.2d 236

Eddie Deno COLLIER, Petitioner, v. The Honorable J. P. DENATO, Judge, Polk County District Court, Respondent.

No. 59291.

Supreme Court of Iowa.

Nov. 17, 1976.

Naomi S. Mercer and Robert A. Wright, Sr., Des Moines, for petitioner.

Ray A. Fenton, County Atty., and Karla J. Fultz, Asst. County Atty., Des Moines, for respondent.

Heard before MOORE, C.J., and MASON, LeGRAND, UHLENHOPP, and mCCORMICK, JJ.

MASON, Justice.

Eddie Deno Collier filed a petition for writ of certiorari in this court challenging the legality of the Honorable James P. Denato's order overruling petitioner's motion to dismiss a county attorney's information filed against him in Polk County. Petitioner's motion was based upon the State's alleged failure to file the information within thirty days from the date petitioner was held to answer. This court entered an order for issuance of the writ and proper return was filed.

A preliminary information was filed January 20, 1976, charging petitioner with the crime of soliciting for prostitution in violation of section 724.2, The Code. Petitioner was arraigned the same day and pleaded not guilty before the Honorable Norman Elliott, an Associate Judge of the Polk District Court. In addition petitioner waived preliminary hearing and demanded a speedy indictment and trial. Defendant was then held to answer and bail was set. Included in the certification of the proceedings had before the magistrate is Judge Elliott's order of January 20 in which he states:

'On judicial inquiry made I find probable cause for this charge and to detain the Defendant thereon.

/s/ N. Elliott

'Let the Defendant be released on posting Cash or Surety Bond of $2000 or 200.

/s/ N. Elliott'

Cash bail was posted on the same day and the papers were promptly transmitted to the Polk District Court where they were filed January 22.

February 17 the county attorney requested a preliminary hearing and pursuant to Judge Elliott's order a preliminary hearing was held February 18. Petitioner did not request that proceeding. As a result of the February 18 hearing petitioner was bound over to the grand jury for further proceedings.

A county attorney's information was filed February 27 charging petitioner with the same offense set out in the preliminary information. On the same day, pursuant to notice filed February 23, petitioner took the deposition of a witness for the State.

Petitioner was arraigned March 3 before the Honorable James P. Denato and entered a plea of not guilty. Trial was set for April 14, 1976. On the date of his assignment before Judge Denato petitioner filed a motion to dismiss based upon the prosecution's alleged failure to file the information within thirty days from the date petitioner was held to answer as required by section 795.1, The Code. Judge Denato overruled petitioner's motion March 22 and this certiorari action followed.

The following issues are presented for review in this proceeding:

(1) Is certiorari a proper method to challenge the legality of the trial court's action in overruling petitioner's motion to dismiss?

(2) Was the preliminary hearing illegally ordered and illegally held?

(3) Did petitioner's actions in voluntarily and affirmatively participating in the preliminary hearing and in taking the deposition of a State's witness constitute a waiver of the speedy indictment provisions of section 795.1, The Code?

(4) Did petitioner's actions establish good cause for the State's failure to comply with the thirty day requirement of section 795,1, The Code?

(5) Were petitioner's constitutional rights to speedy trial and assistance of counsel violated by respondent's actions in ordering that the preliminary hearing be held and in overruling petitioner's motion to dismiss?

I. 'A writ of certiorari shall only be granted when specifically authorized by statute; or where an inferior tribunal, board or officer, exercising judicial functions, is alleged to have exceeded its, or his proper jurisdiction or otherwise acted illegally.' Rule 306, Rules of Civil Procedure.

It is well established that rule 306, R.C.P., strictly limits certiorari relief to questions of jurisdiction or illegatlity of an inferior tribunal's actions unless there is a specific statutory exception applicable. See State v. Dist. Ct. in and for Polk Cty., 231 N.W.2d 1, 5 (Iowa 1975) and State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975). Petitioner does not assert respondent was acting beyond the scope of his jurisdiction; rather it is maintained respondent acted illegally in denying petitioner's motion to dismiss.

In Vohs v. District Com'rs of Fremont Cty., Etc., 218 N.W.2d 595, 596 (Iowa 1974), this court defined 'illegally,' as used in rule 306, R.C.P., as follows:

'There is illegality within the meaning of the certiorari rule 'when there is not substantial evidence to support the findings on which the inferior court or tribunal based its conclusions of law.' * * * (citing authority).' See also State v. Cullison, 227 N.W.2d at 126.

It is clear a trial court's ruling on a motion to suppress evidence can be reviewed by certiorari. State v. District Court of Iowa, in & for Linn County, 218 N.W.2d 641, 643 (Iowa 1974); State v. Holliday, 169 N.W.2d 768, 770--771 (Iowa 1969); State v. Rees, 258 Iowa 813, 816, 139 N.W.2d 406, 408. It is equally clear the right to challenge pretrial rulings of lower courts by certiorari has been extended to the state and to defendants. Steinbeck v. Iowa Dist. Ct. in and for Linn Cty., 224 N.W.2d 469, 472 (Iowa 1974).

A writ of certiorari challenging an order denying a transfer of proceedings to juvenile court was sustained in Mallory v. Paradise, 173 N.W.2d 264 (Iowa 1969). Likewise, a writ was sustained in Harnack v. District Court of Woodbury County, 179 N.W.2d 356 (Iowa 1970), where defendants were challenging trial court's order changing the place of trial. In Pollard v. District Court of Woodbury County, 200 N.W.2d 519 (Iowa 1972), this court sustained a writ challenging an order overruling a motion for change of venue.

This court will not deny or annul a writ of certiorari on the ground petitioner has another plain, speedy or adequate remedy. Rule 308, R.C.P.; Reed v. Gaylord, 216 N.W.2d 327, 333 (Iowa 1974).

Petitioner maintains the undisputed facts presented by this record do not support respondent's conclusion petitioner's conduct amounted to a waiver of his right to speedy indictment as a matter of law. In other words it is argued respondent's conclusion of law was 'illegal.'

In light of the cited cases wherein this court in certiorari proceedings reviewed various pretrial rulings of lower courts, it is our view certiorari is a proper method for challenging respondent's ruling on petitioner's motion herein.

Principles controlling this court's scope of review in certiorari actions are set out in State v. Cullison, 227 N.W.2d at 126, as follows:

'Certiorari is not an equitable proceeding. The action is by ordinary proceedings, rule 317, R.C.P., which means it is a law action. * * * (citing authority). Consequently, our review ordinarily is not De novo and we do not review fact findings of the lower tribunal further than to ascertain if they are sustained by competent and substantial evidence. * * * (citing authorities).

'* * *

'Where this is no factual dispute and no conflicting inferences may be drawn from the facts it is for us to review trial court's conclusions as a matter of law. * * * (citing authority). And in reviewing law issues, this court is not bound by trial court's ruling. * * * (citing authorities).'

In the case before us there is no factual dispute and no conflicting inferences may be drawn from those undisputed facts. Consequently, this court must review respondent's ruling as a matter of law.

It should be noted here petitioner points out a possible violation of his constitutional rights to a speedy trial and to assistance of counsel. Arguably then an exception to this court's normal scope of review in certiorari actions, requiring an assessment of the totality of the circumstances, would apply. State v. Cullison, 227 N.W.2d at 126. However, since the facts here are undisputed and respondent's ruling is to be assessed as a matter of law with reference to those facts, it is immaterial whether the noted exception applies.

II. Petitioner contends respondent's overruling of the former's motion to dismiss was illegal within the meaning of rule 306, R.C.P. The alleged illegality is the fact respondent's ruling was based upon the erroneous conclusion petitioner's participation in the belated preliminary hearing and in taking the deposition of the State's witness amounted to a waiver of the speedy indictment provisions of section 795.1, The Code. Petitioner insists the preliminary hearing was contrary to law and participation therein could not amount to a waiver of his right to speedy indictment.

Although it is not altogether clear whether petitioner argues the prosecution has no right to request a preliminary hearing or whether that request may only be made at the time of petitioner's proposed waiver, it appears the latter is the case. In any event the question of the legality or illegality of this preliminary hearing held February 18 at the State's request need not be resolved here. The issue is, did petitioner's participation in that hearing constitute a waiver of the provisions of section 795.1. That question can be resolved without reaching a conclusion as to the legality or illegality of the preliminary hearing in question. For this reason petitioner's second contention will not be dealt with.

III. In connection with the third issue presented we point out again respondent's ruling is based on the conclusion petitioner waived his right to be indicted or informed against within the 30-day period mandated in section 795.1 by 'his voluntary and affirmative participation in the preliminary hearing and the deposing of witnesses.' Petiti...