Esquivel v. StateEsquivel v. State
- Reporters:
- , ,
- Before:
- Schroeder
This is an appeal by Jose E. Esquivel from the dismissal of his petition for post-conviction relief. The dismissal was based on the expiration of the statute of limitations found in section 19-4902 of the Idaho Code (Supp. 1995) (amended 1993). We affirm the dismissal.
I.
BACKGROUND AND PRIOR PROCEEDINGS
Esquivel pled guilty to conspiracy to deliver a controlled substance and was sentenced on October 26, 1989, to a unified sentence of ten years with eight years fixed. Subsequently he filed a Rule 35 motion pursuant to the Idaho Criminal Rules (I.C.R.) to reduce his sentence. The motion was denied. He did not appeal this denial.
On October 27, 1994, Esquivel filed a motion for post-conviction relief from his judgment and commitment of October 26, 1989, claiming ineffective assistance of counsel. Esquivel claimed that his court appointed attorney failed, refused or neglected to contact Esquivel regarding the status of his case as it proceeded. The district court dismissed the petition pursuant to
II.
THE DISTRICT COURT PROPERLY DISMISSED ESQUIVEL’S PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS THAT THE AMENDED ONE-YEAR STATUTE OF LIMITATION WAS APPLICABLE TO HIS PETITION.
In
University of Utah Hosp. v. Pence,
104 Idaho 172, 657 P.2d 469 (1982), this Court addressed the issue of the applicability of a statute which limited the time for filing claims for medical indigency benefits. In
Pence
the University of Utah Hospital and Medical Center filed a claim for medical indi-gency benefits on behalf of a hospital patient. The claim was filed some eleven months after release of the patient from the hospital.
Id.
The claim would have been timely under the 1974 version of section 31-3504 of the Idaho Code, which allowed a year following discharge for a patient receiving emergency treatment to apply for county aid. However, the defendants moved to dismiss the action, asserting that the application was untimely. The 1976 version of
The
Pence
court recognized that retroactive application of the 1976 version of
The Pence court followed the reasoning of a California court:
In this regard, it is to be observed further that there is almost universal agreement that when a statutory period of limitation is amended to reduce the limitation period, the party whose right accrued before the effective date of the amendment cannot be heard to complain if he is given the full time allowed for action according to the terms of the amended statute from and after the effective date of the amended statute.
Id.
at 175, 657 P.2d at 472 (citing
Olivas v. Weiner,
127 Cal.App.2d 597, 274 P.2d 476 (1954)). Consequently, the Court concluded that the proper measure of the time limitation period began to run from July 1, 1976, the effective date of the 1976 version of
The Court of Appeals addressed a similar issue in determining the application of a five-year limitation period for the filing of post-conviction relief petitions mandated by a 1979 amendment of
The Mellinger court also addressed the petitioner’s claim that the five-year limitation was given unfair ex post facto application because it deprived him of a preexisting statutory right. The court quoted from the United States Supreme Court, which stated:
[E]ven if a law operates to the defendant’s detriment, the ex post facto prohibition does not restrict “legislative control of remedies and modes of procedure which do not affect matters of substance.” (citation omitted). Hence no ex post facto violation occurs if the change in the law is merely procedural and does “not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.” (citations omitted).
Miller v. Florida, 482 U.S. 423, 433, 107 S.Ct. 2446, 2452, 96 L.Ed.2d 351 (1987). The Mel-linger court concluded that “no substantial right has been materially affected,” and affirmed the dismissal of Mellinger’s application for post-conviction relief. 113 Idaho at 34, 740 P.2d at 76. The Court indicated that “[t]he important factor is that Mellinger had filed two petitions since the statute was amended.” Id. at 35, 740 P.2d at 77.
Esquivel asserts that his ease is distinguishable from
Mellinger
since he has not filed for post-conviction relief prior to this claim. Since
Mellinger,
however, the. Court of Appeals has made it clear that its conclusion is not dependant upon prior post-conviction relief petitions having been filed. In
LaFon v. State,
119 Idaho 387, 807 P.2d 66 (1991), the Court of Appeals cited to
Mellinger
for the rule that the five-year statute of limitation applied to cases where convictions were entered prior to the 1979 amendment which added the five year limitation period to
The Court rejected LaFon’s arguments and declared that, “[(legislative reduction of a statutory period of limitation may apply to an accrued cause of action as long as a reasonable amount of time is allowed within which to assert the cause.” Id. at 390, 807 P.2d at 69. The Court rejected LaFon’s argument that he did not have actual knowledge of the amendment. LaFon had filed no prior petitions and was still found to be limited by the five-year statute of limitations. See also Reyes v. State, 913 P.2d 1183 (Ct.App.1996) and Chapman v. State, 918 P.2d 602 Docket No. 21763, 1996 WL 37935 (Ct.App. Feb. 1, 1996), decided recently by the Court of Appeals applying the one-year limitation period now in effect.
The reasoning of
Pence, Mellinger, LaFon, Reyes,
and
Chapman
is applicable to the present case. The application of
III.
CONCLUSION
The district court’s dismissal of the petition for post-conviction relief is affirmed. The respondent is awarded costs. No attorney fees are allowed.
McDEVITT, C.J., and JOHNSON, TROUT and SILAK, JJ., concur.