                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0762
                               Filed June 15, 2016


DAVID HERING,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Henry W.

Latham II, Judge.



      Applicant appeals the district court decision dismissing his application for

postconviction relief on the ground it was untimely. AFFIRMED.




      William R. Monroe of the Law Office of William Monroe, Burlington, for

appellant.

      David Hering, Anamosa, appellant pro se.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       David Hering appeals the district court decision dismissing his application

for postconviction relief on the ground it was untimely. We find Hering’s notice of

appeal was timely filed, however, we determine Hering’s application for

postconviction relief, filed on January 17, 2014, is untimely under Iowa Code

section 822.3 (2013). We affirm the decision of the district court.

       I.     Background Facts & Proceedings

       Hering was convicted of first-degree murder for killing his wife and of two

counts of attempted murder for shooting at officers who responded to a 911 call

from his residence.    His convictions were affirmed on appeal.       See State v.

Hering, No. 04-1222, 2006 WL 60678, at *1 (Iowa Jan. 11, 2006).

       Hering filed the present application for postconviction relief on January 17,

2014, claiming his convictions were void because he was incompetent to stand

trial under Iowa Code chapter 812. The district court, sua sponte, filed a notice

of intent to dismiss the application as untimely under section 822.3. The State

agreed the application was untimely and also stated the principle of res judicata

barred additional litigation on the issue because it had been adjudicated in a prior

postconviction action. Hering resisted the notice of intent to dismiss.

       The district court entered an order on April 1, 2014, dismissing Hering’s

application for postconviction relief on the grounds of untimeliness and res

judicata. On April 9, 2014, Hering filed a motion pursuant to Iowa Rule of Civil

Procedure 1.904(2), claiming the court did not address his assertion his criminal

convictions were void because he was not competent to stand trial. The district
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court entered an order on April 29, 2014, denying Hering’s rule 1.904(2) motion.

Hering appealed on May 7, 2014.

       II.    Timeliness of Appeal

       The State filed a motion to dismiss Hering’s appeal on the ground it was

untimely. The State claimed Hering did not file a proper rule 1.904(2) motion and

therefore it did not toll the time for filing an appeal. The Iowa Supreme Court

denied the motion to dismiss but ruled the issue could be raised by the State on

appeal, which the State has done.

       We determine Hering’s appeal is not untimely. Hering claimed the statute

of limitations for filing postconviction actions found in section 822.3 should not

apply because his convictions were void and the district court had not specifically

addressed this issue.     Therefore, we determine Hering filed a proper rule

1.904(2) motion and he timely appealed after the district court ruled on his

motion. See State v. Krogmann, 804 N.W.2d 518, 524 (Iowa 2011); Meier v.

Senecaut, 641 N.W.2d 532, 539 (Iowa 2002).

       III.   Timeliness of Postconviction Application

       The district court found Hering’s application for postconviction relief was

untimely. We review the district court’s decision for the correction of errors at

law. See Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003). An application

for postconviction relief must be “filed within three years from the date the

conviction or decision is final or, in the event of an appeal, from the date the writ

of procedendo is issued.”     Iowa Code § 822.3.       A writ of procedendo from

Hering’s direct appeal was filed on January 24, 2006, and his application for

postconviction relief was filed almost eight years later, on January 17, 2014.
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       There is a statutory exception for applications based upon “a ground of

fact or law that could not have been raised within the applicable time period.” Id.

Hering claims a past conservatorship proceeding provides the “ground of fact or

law that could not have been raised within the applicable time period.” See id.

While Hering’s criminal case was pending, the Muscatine County Sheriff filed a

petition for the appointment of a conservator for Hering, and the district court

entered an order finding “David L. Hering, is presently incarcerated in the

Muscatine County Jail and that it would be in his best interests that a

Conservator be appointed during the pendency of his incarceration.” 1 Hering

was aware prior to his criminal trial a conservator had been appointed for him

and there had not been a competency hearing under chapter 812. He has failed

to show his present claim could not have been raised within the three-year time

period found in section 822.3.

       Hering claims the statute of limitations for postconviction actions does not

apply to his application because his criminal convictions are void due to his

assertion he was mentally incompetent at the time of his criminal trial. When a

defendant is determined to have been incompetent at the time of trial, the

criminal conviction is reversed, not declared void. See State v. Pedersen, 309

N.W.2d 490, 501 (Iowa 1981).




1
  In an earlier case concerning Hering, the district court, when discussing the application
to appoint a conservator, found “the conservatorship proceeding may have been
prompted more by his incarceration and a desire to preserve his assets for his children,
than a truly impaired capacity to make, communicate, or carry out important decisions
concerning his financial affairs.”
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       We determine Hering’s application for postconviction relief, filed on

January 17, 2014, is untimely under section 822.3. We affirm the decision of the

district court.

       AFFIRMED.
