Released for Publication April 14, 2014.
Appeal from the Iowa District Court for Linn County, Russell G. Keast, District Associate Judge. Gregory Hollie Jr. appeals from judgment and sentence entered following his conviction for driving while barred.
David E. Mullin of Mullin & Laverty, L.C., Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Thomas H. Miller, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Laurie Craig, Assistant County Attorney, for appellee.
Considered by Doyle, P.J., and Danilson and Mullins, JJ.
Gregory Hollie Jr. appeals from the judgment and sentence entered following his conviction for driving while barred. He argues the district court erred in denying his motion to suppress as untimely. We disagree and find the district court did not abuse its discretion in denying the motion as untimely. Alternatively, Hollie argues his trial counsel was ineffective in failing to timely file a motion to suppress. We agree and therefore reverse and remand.
I. Background Facts and Proceedings.
On October 21, 2011, a Cedar Rapids police officer observed a car being operated with no license plates but displaying a temporary registration card. A traffic stop was initiated. The driver, Hollie, produced an identification card, but he had neither a driver's license nor the requested insurance and title documents. After Hollie asked the officer why he stopped him, the officer replied, " Because you don't have a license plate." Hollie asked, " Because I have temp tags?" The officer responded, " Yeah. People alter those all the time so we pull them over just to make sure."
Hollie was ultimately arrested and charged with driving while barred, an aggravated misdemeanor, in violation of Iowa Code sections 321.560 and 321.561 (2011). Later the State filed a trial information, and Hollie filed a written arraignment and plea of not guilty on November 30, 2011. A jury trial was set for January 30, 2012, with a pretrial conference to be held on January 11. The pretrial report, generated after the conference, indicates Hollie requested the trial be reset because " [a]dditional discovery [was] needed." The trial was reset for March 5, 2012.
On February 7, 2012, Hollie filed a motion to suppress alleging the stop " was not justified by any traffic violation" and therefore violated Hollie's rights " under the [F]ourth Amendment to the United States [C]onstitution, and the laws and Constitution of the State of Iowa." The State resisted, arguing the motion was untimely under Iowa Rule of Criminal Procedure 2.11(4) and that Hollie had not stated
any good cause for the late filing of his motion. The timeliness issue and the merits of the motion were both submitted to the court for consideration. The digital recording of the stop and a supplemental police report were accepted by the court as " the evidence in entirety as it relates to [Hollie's] motion to suppress." The court denied the motion, finding Hollie failed to ...