State v. Gansz, 86-591

• Decision Date: 15 April 1987
• Docket Number: No. 86-591,86-591
• Citation: 403 N.W.2d 778
• Parties: STATE of Iowa, Appellee, v. Dale Eugene GANSZ, Appellant.
• Court: Iowa Supreme Court

Page 778

403 N.W.2d 778

STATE of Iowa, Appellee, v.Dale Eugene GANSZ, Appellant.

No. 86-591.

Supreme Court of Iowa.

April 15, 1987.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., William E. Davis, Co. Atty., and Realff Ottesen, Asst. Co. Atty., for appellee.

Considered by HARRIS, P.J., and SCHULTZ, CARTER, WOLLE, and LAVORATO, JJ.

CARTER, Justice.

Defendant, Dale Eugene Gansz, was convicted of perjury on June 26, 1984.That conviction was reversed in State v. Gansz, 376 N.W.2d 887(Iowa1985), and procedendo mandating retrial was issued on December 4, 1985.The basis for reversal of the prior conviction was that the jury was permitted to consider allegedly false testimony given at a time beyond the applicable statute of limitations.

In an apparent attempt to avoid the statute of limitations problems posed by the first trial, the prosecutor, on January 7, 1986, filed a new trial information under a different docket number.The new information charged the defendant with two counts of perjury, one of which embraced the same transactions presented in the original charge.On February 4, 1986, the trial court granted the State's motion to dismiss the original information based upon the State's affirmation that the crime previously charged was in fact two separate crimes, and the State now wished to proceed in separate counts.

The case was tentatively assigned for trial on March 17, 1986.That assignment occurred prior to defendant's arraignment on the newly filed information.Defendant was arraigned on the second information on January 15, 1986.At this time, the trial court took up the matter of whether the case was assigned for trial within the time required to satisfy defendant's speedy trial rights.At this point, the following colloquy occurred:

MR. HINES [defendant's attorney]: We'll waive the reading, Your Honor.We've received the Minutes and the Trial Information.We've also received the Rule 13(2)(a) Discovery Statement.Mr. Gansz is charged with his true and correct name.We will not execute a speedy trial waiver and enter a plea of not guilty to both counts.

THE COURT: What's the speedy trial expiration date?

MS. DAVIS [Assistant County Attorney]: It will be--

MR. HINES: It was filed on the 7th.

MS. DAVIS: I'm trying to think.It would have been whatever the--It would be the week after the enrolled order date set for trial.Anyway, should have an enrolled trial date set on the order.

THE COURT: The 17th of March.The 24th of March.

MS. DAVIS: Yes.

THE COURT: The Court has entered an enrolled order fixing various cut-off dates, copies of which are made available to the defendant, his attorney, and counsel for the State.

MR. HINES: Thank you, Your Honor.

On March 14, 1986, three days before the time the case had been set for trial and one hundred days after the issuance of the procedendo, the defendant moved to dismiss that count of the second information which embraced the original perjury charge.

The motion to dismiss was grounded on the State's failure to retry defendant within ninety days of the issuance of procedendo following the appeal of the first trial, as required by State v. Zaehringer, 306 N.W.2d 792(Iowa1981).The motion was denied by the trial court.Upon trial of the two-count information, the defendant obtained a directed verdict of acquittal on one count but was convicted on the count which paralleled the original perjury charge.

The defendant contends on this appeal that the State's failure to retry him within ninety days of the issuance of procedendo from the appeal of his first trial violated his statutory right to a speedy retrial.The State urges that, based on our holding in State v. Fisher, 351 N.W.2d 798, 802(Iowa1984), the ninety-day period begins anew upon the...