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Ciric v. State

Court of Appeals of Iowa

March 8, 2017

ALEKSANDAR CIRIC, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         Applicant appeals the district court decision denying his request for postconviction relief from his convictions for third-degree burglary and third-degree theft. AFFIRMED.

          Blake D. Lubinus of Lubinus Law Firm, P.L.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant Attorney General, for appellee.

          Considered by Mullins, P.J., Bower, J., and Goodhue, S.J. [*] McDonald, J., takes no part.

          BOWER, Judge.

         Aleksandar Ciric appeals the district court decision denying his request for postconviction relief from his convictions for third-degree burglary and third-degree theft. We find the district court properly denied Ciric's request to find the State in default in the postconviction action. Additionally, Ciric has not shown he received ineffective assistance based on his claims defense counsel should have (1) conducted depositions in a more timely manner, (2) filed a motion to dismiss on the ground the trial information was defective, and (3) filed a motion to dismiss on speedy trial grounds. We affirm the decision of the district court.

         I. Background Facts & Proceedings

         On March 5, 2013, a preliminary complaint was filed alleging Ciric had committed third-degree burglary, possessed a controlled substance, and possessed burglar's tools. A trial information was filed on April 3, 2013, charging Ciric with burglary in the third degree, possession of burglar's tools, and theft in the second degree. The trial information in the court file was signed by a judge. The minutes of testimony were filed at the same time as the trial information.

         Ciric filed a pro se motion to dismiss, claiming the trial information was improper because the copy he received did not include a judge's signature. The district court denied the motion, finding the motion to dismiss was without merit.

         Defense counsel filed a motion to produce and gave notice of the intent to conduct depositions. The case was scheduled for trial on June 24, but defense counsel asked for a continuance in order to conduct depositions. The court granted the continuance and rescheduled trial for June 26. The depositions were conducted on June 25.

         The process of selecting a jury commenced as scheduled on June 26. On June 27, prior to the beginning of the trial, Ciric agreed to plead guilty to third-degree burglary, in violation of Iowa Code section 713.6A(1) (2013), and third-degree theft, in violation of section 714.2(2). The State agreed to dismiss the charge of possession of burglar's tools and not to file additional charges against him. Ciric was sentenced to terms not to exceed five years and two years, to be served consecutively. Ciric's convictions were affirmed on appeal. State v. Ciric, No. 13-1110, 2014 WL 5243344, at *2 (Iowa Ct. App. Oct. 15, 2014).

         On December 26, 2014, Ciric filed an application for postconviction relief, alleging he received ineffective assistance because defense counsel did not (1) file a motion to dismiss on the ground the trial information was defective; (2) file a motion to dismiss on the ground his right to a speedy trial was violated; and (3) timely depose witnesses.

         On July 27, 2015, Ciric filed a motion claiming the State was in default because it had not filed a motion or answer to his application for postconviction relief within a reasonable time. The State filed an answer on August 11, 2015. The court entered an order stating the motion for default would be considered at the time of the postconviction hearing. During the ...


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