Gonzalez v. State

• Decision Date: 03 November 2003
• Docket Number: No. 28976.,28976.
• Citation: 79 P.3d 743,139 Idaho 384
• Parties: Lisa Marie GONZALEZ, Petitioner-Appellant, v. STATE of Idaho, Respondent.
• Court: Idaho Court of Appeals

79 P.3d 743

139 Idaho 384

Lisa Marie GONZALEZ, Petitioner-Appellant, v. STATE of Idaho, Respondent.

No. 28976.

Court of Appeals of Idaho.

November 3, 2003.

Molly J. Huskey, State Appellate Public Defender; Eric Don Fredericksen, Deputy

Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Ralph Reed Blount, Deputy Attorney General, Boise, for respondent.

LANSING, Chief Judge.

Lisa Marie Gonzalez appeals from the order of the district court dismissing her petition for post-conviction relief as untimely. We affirm.

I. BACKGROUND

The facts relating to Gonzalez's underlying criminal conviction were set forth in this Court's opinion on Gonzalez's appeal from an order revoking her probation:

In January 1990, [Gonzalez] pleaded guilty to aggravated battery and received a unified ten-year sentence with five years determinate. The court suspended the sentence, however, and placed her on probation. In June 1990, it was reported that Gonzalez violated her probation by consuming alcohol, driving under the influence, causing an automobile accident, and fleeing the scene of the accident. She admitted the violations, but the court reinstated her probation subject to additional conditions, including participation in an alcohol treatment program. In September 1990, Gonzalez's probation officer again reported violations, including failure to attend her court-ordered substance abuse counseling program, failure to appear for job training, changing her residence without permission, and failing to appear for bi-monthly reports to her probation officer. Gonzalez never again reported to her probation officer, and she remained at large for more than nine years. When she was finally apprehended in February 2000, the district court revoked probation and ordered execution of Gonzalez's original sentence. She now appeals, contending that the district court abused its discretion by not reducing her sentence when her probation was revoked.

State v. Gonzalez, 136 Idaho 457, 35 P.3d 274 (Ct.App. 2001) (unpublished). The district court's revocation order was affirmed on appeal.

In February 2001, Gonzalez filed an action for post-conviction relief. Her amended petition alleged that her defense attorney provided ineffective assistance in the criminal case because he: (1) did not adequately communicate with her, (2) refused to raise the defense of self-defense, and (3) did not adequately investigate the presentence investigation report or allow Gonzalez adequate time to review the presentence investigation report. The State filed a motion to dismiss the post-conviction action asserting, among other things, that the petition was untimely because it contained only claims arising from conduct of counsel that preceded the 1990 judgment. The district court agreed and dismissed the petition on the ground that it was time barred. Gonzalez appeals.

II. ANALYSIS

A petition for post-conviction relief may be summarily dismissed when there exist no genuine issues of material fact and, on the undisputed facts, the State is entitled to judgment as a matter of law. Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Cowger v. State, 132 Idaho 681, 684, 978 P.2d 241, 244 (Ct.App.1999); Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App.1991).

The statute of limitation for post-conviction actions, Idaho Code § 19-4902, provides that a petition for post-conviction relief "may be filed at any time within one (1) year from the expiration of the time for appeal or from the determination of appeal or from the determination of a proceeding following an appeal, whichever is later." The "appeal" referenced in that section means the appeal in the underlying criminal case. Freeman v. State, 122 Idaho 627, 628, 836 P.2d 1088, 1089 (Ct. App.1992); Hanks v. State, 121 Idaho 153, 154, 823 P.2d 187, 188 (Ct.App.1992).

Gonzalez did not appeal from her judgment of conviction. Therefore, because the time for appeal expired forty-two days after entry of the judgment pursuant to Idaho Appellate Rule 14, the statute of limitation for a post-conviction action challenging the legality of Gonzalez's conviction began to run on the forty-third day. See Loman v. State, 138 Idaho 1, 2, 56 P.3d 158, 159 (Ct. App.2002)

. Gonzalez did, however, appeal from the February 2000 order revoking probation, and that appeal was not resolved until April 2001. The question thus presented is whether Gonzalez's petition for post-conviction relief was timely because it was filed within one year after the conclusion of her appeal from the probation revocation order. We conclude that the petition is not timely because Gonzalez's post-conviction petition does not challenge the probation revocation order or proceedings leading up to it but, rather, challenges only the validity of the judgment of conviction and sentence imposed in January 1990.

This conclusion is dictated by our decision in Lake v. State, 124 Idaho 259, 858 P.2d 798 (Ct.App.1993). In that case, a petition for post-conviction relief was filed in May 1990 challenging both a judgment of conviction that had been entered in April 1984 and a probation revocation order that was entered in November 1986. At the time of Lake, I.C. § 19-4902 allowed a defendant five years to bring an action for post-conviction relief. See footnote 2, infra. We held that the petitioner's claim that he received ineffective assistance of counsel during the probation revocation proceeding was timely, but that the claims relating to the 1984 convictions were barred by the statute of limitation. Id. at 260, 858 P.2d at 799. It is implicit in that decision that the time for filing a post-conviction application challenging a judgment of conviction or sentence does not start anew from the entry of a probation revocation order. Rather, any post-conviction action filed within the limitations period connected to the probation revocation...