Fox v. State, 22421

• Court: Court of Appeals of Idaho
• Citation: 129 Idaho 881,934 P.2d 947
• Docket Number: No. 22421,22421
• Parties: Thomas Dewey FOX, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Decision Date: 21 March 1997

Page 947

934 P.2d 947 129 Idaho 881 Thomas Dewey FOX, Petitioner-Appellant,
v.
STATE of Idaho, Respondent. No. 22421. Court of Appeals of Idaho. March 21, 1997.

Page 948

Robert L. Crowley, Jr. (argued), Rigby, for petitioner-appellant.

Alan G. Lance, Attorney General, John C. McKinney, Deputy Attorney General (argued), Boise, for respondent.

WALTERS, Chief Judge.

Thomas D. Fox appeals from the summary dismissal of his application for postconviction relief, which the district court held was not filed within the statute of limitation prescribed by I.C. § 19-4902. We affirm in part and reverse in part.

FACTS AND PROCEDURE

Following the entry of a guilty plea to one count of lewd conduct with a minor under sixteen, Fox was convicted and sentenced to a unified term of fifteen years, with a minimum period of confinement of five years. Fox was committed to the North Idaho Correctional Institution (NICI) for 180 days, and on April 5, 1991, the district court rejected probation for Fox as an alternative to incarceration, and relinquished jurisdiction. In July, 1991, Fox filed a motion for reconsideration of his sentence, which was denied. ¹ Fox did not appeal from the judgment of conviction or from the denial of his I.C.R. 35 motion.

On February 11, 1995, Fox filed a pro se application for post-conviction relief from his judgment of conviction, alleging that his due process rights had been violated during his commitment at NICI. He also filed a motion for court-appointed counsel to assist him in his post-conviction proceeding. The state answered and moved the district court to dismiss the application as untimely. The district court provided Fox with notice of its intent to dismiss the application as untimely, and after receiving no response from Fox within the twenty-day period set forth in the notice, the district court entered an order dismissing the application. The district court failed to rule on Fox's request for appointed counsel. The district court concluded that Fox's application should have been filed no later than July of 1994, one year after the effective date of the 1993 amendment to I.C. § 19-4902, in order to comply with the statute of limitation governing post-conviction relief applications.

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DISCUSSION

The pivotal issue in this appeal is the timeliness of Fox's application for postconviction relief. Our review, therefore, requires us to examine the district court's construction of I.C. § 19-4902 and its application to the facts in Fox's case. Because the construction and application of a legislative act present pure questions of law, we exercise free review. Hanks v. State, 121 Idaho 153, 154, 823 P.2d 187, 188 (Ct.App.1992), citing State v. Cheney, 116 Idaho 917, 919, 782 P.2d 40, 41 (Ct.App.1989).

At the time of Fox's conviction in 1990, I.C. § 19-4902 provided a limitation period for post-conviction actions of five years from the expiration of the time for appeal in the criminal case, or from the determination of an appeal or from the determination of a proceeding following an appeal, whichever is later. 1988 Idaho Sess.Laws, ch.76, p. 131. The five-year limitation, however, was shortened in 1993 to one year. ² The district court determined that Fox had one year from the effective date of the 1993 amendment to initiate a post-conviction proceeding and dismissed the action because it was filed more than six months beyond the expiration of the limitation period.

On appeal, Fox advances several arguments to establish why the district court erred in ruling that his application for post-conviction relief was untimely. First, he argues that the application of the one-year limitation to his case violates the Ex Post Facto clauses of the federal and state constitutions and a statutory prohibition against retroactive laws, thus depriving him of a preexisting statutory right. Second, Fox asserts that Browning v. Vernon, 44 F.3d 818 (9th Cir.1995), which held that practices at NICI similar to the ones Fox complained of in Fox's application were constitutionally impermissible, had the effect of enlarging the statutory limitation period for bringing a post-conviction action. Alternatively, in light of Browning, Fox asserts that a discovery exception should be recognized to extend the limitation period. Lastly, he argues that "the expiration of the time for appeal in his criminal case" was forty-two days after the district court's denial on June 24, 1994, of his Rule 35 motion for reduction of sentence....