Thе State filed a motion to dismiss the postconviction relief application of Mark Hines. The motion was resisted in writing by the applicant, set for hearing by the court, orally argued by the parties, and then sustained by the court.
The question here is whether a postconviction relief applicant, after the above-stated procedural record; is further entitled under section 663A.6, The Code 1977, to a notice of intention to dismiss аnd opportunity to reply to a proposed dismissal.
Believing he is so entitled, Hines appeals. We disagree and affirm.
In June 1972 Hines pleaded guilty to the crimes of burglary with aggravation in violation of section 708.1, The Code 1971, and rape in violation of section 698.1, The Code 1971. He was sentenced on June 22 to forty years in the Iowa State Reformatory at Anamosa for each offense. The sentences were ordered to run concurrently.
Hines’ appeal to this court from those convictions was dismissed upon his request on November 20, 1972.
In 1975 Hines filed a pro se postconviction relief application that was ultimately dismissed.
On March 3,1978, Hinеs, through counsel, again applied for postconviction relief. On March 8 the court ordered the State to respond within ninety days by answer or motion.
The State, on April 7, filed a motion to dismiss on the ground that the aрplication failed to state a claim for postconviction relief. On April 17 Hines filed a written resistance to the State’s motion. The court set the motion to dismiss for hearing and, on August 4, after several continuances, the parties were heard in oral argument on the motion.
The court sustained the State’s motion on August 9, 1978, and thereby dismissed plaintiff’s application for postconviction relief. Relative to this second application by Hines, the court did not inform him of its intention to dismiss the application nor was Hines afforded any further opportunity to reply.
Hines appeals the dismissal of his latest application for postconviction relief on the grounds that he was improperly denied notice of the court’s intention to dismiss his application and denied an opportunity to reply to the proposed dismissal, as required by paragraph two of section 663A.6, The Code 1977. Hines does not contest the merits of the court’s dismissal in this appeal. We, therefore, only consider the procedural issue raised for our review.
We are faced with a stаtutory postconviction review proceeding under the Uniform Postconviction Procedure Act, chapter 663A. Such an action is at law and our review is not de novo, but only on errors assigned.
State v. Mulqueen,
Hines relies on the following language from paragraph two of section 663A.6:
When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for dismissal. The applicant shall be given an opportunity to reply tо the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or direct that the procеedings otherwise continue. Disposition on the pleadings and record is not proper if a material issue of fact exists.
Iowa 288 NORTH WESTERN REPORTER, 2d SERIES
(Emphasis added.)
As we have stated before, section 663A.6 provides not one but two methods for summary disposition of postconviction relief applications.
Hauser v. State,
The court may grant a motion by either party for summary disposition of the application, when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreеments of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
(Emphasis added.)
The first method allows for summary disposition on the court’s initiative and the аpplicant is foundationally entitled to notice of the court’s intention to dismiss the application and its reasons for dismissal. In addition, the applicant shall be given an opportunity to respond thereto, рrior to final disposition.
State v. Mulqueen,
The second method, set forth in paragraph three of section 663A.6, allows for summary disposition on the motion of either party. Id.
The common thread which runs through paragraphs two and three of section 663A.6 is that of protecting the applicant from having his application dismissed by the court without an opportunity to resist in some manner, either at hearing before the court or through an opportunity to reply to a court-proposed dismissal.
In the present case the State filed a motion to dismiss Hines’ application for post-conviction relief. Paragraph three of section 663A.6 provides that the court may grant a “motion for summary disposition of the application” when filed by either party, if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Becausе the State moved to dismiss the application, a hearing was held on the motion, and the court granted the dismissal, we are faced with the procedure contemplated in paragraph three of seсtion 663A.6, in that the State had moved for a “summary disposition” of the application as contemplated within the meaning of that paragraph.
Chartier v. State,
The goal of paragraph three of section 663A.6 is to providе a method of disposition once the case has been fully developed by both sides, but before an actual trial.
State v. Mulqueen,
We note that
Chartier v. State,
The district court in the present case complied with the dictates of both
Mulqueen
and
Chartier,
in that the motion to dismiss filed by the State was resisted in writing by Hines, set for hearing, and both parties were given an opportunity to orally argue the motion and resistance. All of the protections available to an applicant under paragraph three of section 663A.6 were afforded to Hines.
See generally Balla v. State,
Hines аsks us to require the court, after a full hearing upon a motion to dismiss, to advise him of its intention to dismiss the application and the reasons for dismissal and to provide him an opportunity to reply to the proposed dismissal. Such a reading of section 663A.6 is misplaced. To require such a procedure would unduly extend the procedural protection already afforded Hines by the hearing on the motion to dismiss. He had and exerсised his opportunity in court to argue the validity of his application as it related to the State’s motion to dismiss.
Before us, Hines does not claim surprise in relation to the grounds set forth for dismissal in the court’s order. The grоunds relied upon by the court were fully argued at hearing and set forth in the motion and the resistance thereto. Hines’ application was not dismissed for any reason that was not fully presented in the State’s ■ motion.
Hines also asks us to read
Hauser
v.
State,
The court in the present case properly elected to proceed under paragraph three of section 663A.6 and set the State’s motion to dismiss for hearing.
We hold that the court had authority to dismiss Hines’ application upon motion of the State after Hines had the opportunity to resist the motion at hearing. Hines was not additionally entitled under paragraph two of section 663A.6 to notice of intention to dismiss and opportunity for further reply to a proposed dismissal.
AFFIRMED.