David A. Moe, Petitioner and Appellant
State of North Dakota, Respondent and Appellee
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
Charles A. Stock, Crookston, Minn., for petitioner and appellant.
Dawn M. Deitz, Assistant State's Attorney, Bismarck, N.D., for respondent and appellee.
Gerald W. VandeWalle,
C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers. Dale V.
Sandstrom, concur in the result.
VandeWalle, Chief Justice.
[¶1] David Moe appealed from a district court order dismissing his application for post-conviction relief. Moe argues the district court erred in applying the statute of limitations and dismissing his application because the State waived the statute of limitations defense and a statutory exception applied to the statute of limitations. We affirm.
[¶2] In 2005, Moe was convicted of possession of marijuana with intent to deliver, possession with intent to manufacture psilocybin, possession of methamphetamine with intent to deliver, and two counts of possession of drug paraphernalia.
[¶3] On December 11, 2013, Moe applied for post-conviction relief, arguing he received ineffective assistance of counsel; evidence was illegally seized during a search of his home, citing Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013); and there was prosecutorial misconduct. The State moved for summary dismissal of the application under N.D.C.C. § § 29-32.1-06(2) and 29-32.1-09(1), arguing it was evident from the application that Moe was not entitled to the requested relief, the application did not raise a genuine issue of material fact, and the State was entitled to judgment as a matter of law.
[¶4] On April 15, 2014, the district court entered an order, noting that N.D.C.C. § 29-32.1-01(2) requires an application for post-conviction relief be filed within two years of the conviction becoming final, that Moe's application was not filed within two years, and that it did not appear any exception to the two-year limitation applied under N.D.C.C. § 29-32.1-01(3). The court also noted the State did not raise the two-year time limitation in its motion for summary dismissal of the application. The court requested the parties submit briefs addressing why the application should not be dismissed as untimely under N.D.C.C. § 29-32.1-01(2).
[¶5] The State filed a brief, arguing the application was untimely, the exceptions to the time limitation did not apply, and Moe's application should be dismissed.
Moe also filed a brief, arguing the two-year time limitation did not apply because the time limitation in N.D.C.C. § 29-32.1-01(2) was a new statutory provision, it became effective on ...