VICTOR A. NOVANDER, Plaintiff-Appellant, vs. STATE OF IOWA, Defendant-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-322 / 06-1065
Filed June 13, 2007
VICTOR A. NOVANDER,
Plaintiff-Appellant,
vs.
STATE OF IOWA,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Lawrence M.
Fautsch, Judge.
Appeal from the district court’s dismissal of an application for
postconviction relief. AFFIRMED.
Leslie M. Blair III and Christopher M. Soppe of Blair & Fitzsimmons, P.C.,
Dubuque, for appellant.
Victor Novander, Dubuque, pro se.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, Ralph Potter, County Attorney, and Michael Whalen, Assistant County
Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
SACKETT, C.J.
Victor Novander appeals from the district court’s dismissal of his
application for postconviction relief. He contends the court erred (1) in ordering
defense counsel to evaluate his claims and not making specific findings of fact
and conclusions on each issue raised and (2) in not allowing him to amend his
application. We affirm.
Appellant pleaded guilty to operating while intoxicated, second offense.
This court affirmed his conviction on direct appeal. State v. Novander, No. 040330 (Iowa Ct. App. Feb. 24, 2005).
application for postconviction relief.
On November 29, 2005, he filed an
On December 2 the court appointed an
attorney to represent him, and ordered her to evaluate the merits of the
postconviction claims.
On February 20, 2006, the attorney filed her report
evaluating the claims. On March 29 the court issued an order noting the results
of counsel’s evaluation of the claims, finding insufficient grounds for
postconviction relief, giving notice of its intent to dismiss the application, and
giving Novander until April 28 to reply.
On April 28 Novander filed his own
response, generally expressing dissatisfaction with the judicial system. On May
23, after reviewing the response, the court found insufficient evidence to support
the single claim Novander raised in his response and dismissed the application
for postconviction relief. On June 21 Novander appealed.
Novander contends the district court erred in ordering defense counsel to
evaluate his claims and in not making findings of fact or conclusions of law on the
issues he raised in his application. Postconviction proceedings are reviewed for
correction of errors at law. Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005).
3
Novander did not request specific findings, challenge the order that counsel
evaluate his claims, or file a motion to amend or enlarge after the court’s order.
The district court was not given the opportunity to rule on the issue now raised on
appeal. We conclude error was not preserved. See Meier v. Senecaut III, 641
N.W.2d 532, 539 (Iowa 2002).
Novander argues the supreme court’s decision in Gamble v. State, 723
N.W.2d 443, 446 (Iowa 2006), should apply retroactively in his case. In Gamble,
the supreme court determined the widespread practice of having postconviction
counsel evaluate an applicant’s claims for the court should not be used because
the court should be making findings of fact and conclusions of law on each issue.
Gamble, 723 N.W.2d at 446; see Iowa Code § 822.7 (2005) (requiring that the
district court make specific findings of fact and conclusions of law as to each
issue).
When considering retroactive application of a judicial decision, we
consider the three factors relied on in Beeck v. S.R. Smith Co., 359 N.W.2d 482,
484 (Iowa 1984) (citing Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S. Ct.
349, 355, 30 L. Ed. 2d 296, 306 (1971)). As the supreme court applied the new
rule of law set forth in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), we
would conclude the rule set forth in Gamble should “be applicable only to [that]
case and those cases not finally resolved on direct appeal in which the issue has
been raised in the district court.”
Heemstra, 721 N.W.2d at 558 (emphasis
added). Novander did not raise this issue in the district court, so the rule in
Gamble would not apply.
Novander also contends the court erred in not allowing him to amend his
application for postconviction relief.
When evaluating Novander’s claims,
4
counsel recommended the appointment of “counsel for purposes of amending
the application” to aid in making an “all inclusive record” on the issues counsel
felt were too vague. The district court determined it was unnecessary to appoint
“second counsel for amending the application” because Novander “has shown
insufficient grounds for postconviction relief and no further purpose would be
served by further proceedings.” We find no error in the district court’s decision.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
