author: GILBERTSON, Chief Justice.

text:
    2003 SD 31
    STATE of South Dakota, Plaintiff and Appellee, v. Scott M. VATNE, Defendant and Appellant.
    No. 22359.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 13, 2003.
    Decided March 19, 2003.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Steven M. Christensen, Deadwood, South Dakota,. Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Scott Vatne (Vatne) was convicted after a jury trial of one count of possession of a controlled substance and four counts of distribution of a controlled substance. He was sentenced to one-year for the possession conviction, one-year for the first distribution charge and ten years each for the three remaining distribution convictions, pursuant to SDCL 22-42-2, which mandates a mandatory sentence for a “second or subsequent conviction.” Vat-ne appeals his convictions and we affirm.

FACTS AND PROCEDURE

[¶ 2.] On the evening of July 14, 2001, Vatne planned with a female co-worker, L.W. and her roommate, E.M., (both who were nineteen at the time) to have a “hot tub” party at the home of Vatne and L.W.’s boss, Paul Hogan (Hogan). Hogan was out of town at the time and had given Vatne a key to his home and permission to use the hot tub.

[¶ 3.] The two young women met Vatne at his apartment around midnight. Before leaving, all three drank a beer. After leaving the apartment, they made a stop downtown at the pawn shop where Vatne worked. Once there, the girls picked out several pornographic movies to watch that night, and Vatne offered each of them a line of methamphetamine, which L.W. and E.M. consumed. After leaving the pawn shop, Vatne bought some beer at a local convenience store.

[¶ 4.] Upon arriving at the Hogan residence, Vatne made the females several mixed drinks and also offered them another line of methamphetamine, which once again, L.W. and E.M. consumed. The three of them watched the pornographic movies and then decided to get into the hot tub, all the while drinking alcoholic drinks. In the hot tub, Vatne had sexual intercourse with each of the females. After E.M. started crying and told Vatne to stop, they all got dressed and Vatne gave E.M. a ride home.

[¶ 5.] The next evening, the two women went to the police station and reported that they had been raped. During the course of their interview, they admitted snorting fines of methamphetamines, which Vatne had given them twice during the evening. During a second police interview with Vatne, he admitted giving the females the methamphetamines twice during the evening; however, he stated that the sexual intercourse was consensual.

[¶ 6.] Although Vatne was not charged with anything relating to the sexual assault allegations, he was charged with Possession of a Controlled Substance and four counts of Distribution of a Controlled Sentence. Ultimately, Vatne was found guilty on all counts and sentenced to one-year each for the possession conviction and the first distribution conviction, with ten years each for the remaining distribution convictions. The sentences are to be served concurrently.

[¶ 7.] Vatne appeals his convictions, seeking the following for this Court’s review:

1. Whether the trial court properly denied Vatne’s motion to dismiss the indictment.
2. Whether the trial court abused its discretion when it considered counts 3, 4, and 5 as “second or subsequent convictions,” pursuant to SDCL 22-42-2, and therefore, sentenced Vat-ne to mandatory sentences of ten years each.
3. Whether the trial court abused its discretion when it denied Vatne’s motion in limine which sought to prohibit any reference to the rape allegations.

STANDARD OF REVIEW

[¶ 8.] The decision whether to grant or deny a motion to dismiss an indictment is within the sound discretion of the trial court, subject to an abuse of discretion standard. State v. Kleinsasser, 436 N.W.2d 279, 281 (S.D.1989).

[¶ 9.] A trial court’s interpretation of a statute is a question of law, reviewed by this Court de novo. Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (citations omitted).

[¶ 10.] A trial court’s evidentia-ry ruling is reviewed under an abuse of discretion standard. State v. Smith, 1999 SD 83, ¶ 39, 599 N.W.2d 344, 353 (citing State v. Spiry, 1996 SD 14, ¶ 11, 543 N.W.2d 260, 263) (citations omitted). “An evidentiary ruling will not be overturned unless error is ‘demonstrated ... [and] shown to be prejudicial error.’ ” Id. (quoting Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 (S.D.1976)). “Error is prejudicial when, ‘in all probability ... [it] produced some effect upon the final result and affected rights of the party assigning it.’ ” Id. (quoting K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983)).

ANALYSIS AND DECISION

[¶ 11.] 1. Whether the trial court properly denied Vatne’s motion to dismiss the indictment.

[¶ 12.] Vatne argues that the circuit court should have dismissed the indictment against him because the only witness testimony before the grand jury was based on hearsay evidence and was misleading. Specifically, DCI Agent Pat West testified in the grand jury proceeding that in his interview with L.W. and E.M., they alleged that Vatne had supplied them with methamphetamine twice and sexually assaulted them in the early hours of July 15, 2001. Agent West also testified that Vatne had admitted during an interview that he had given L.W. and E.M. methamphetamines two times during the night in question. Finally, Agent West testified that the urine of the two women revealed the presence of methamphetamines.

[¶ 13.] SDCL 23A-8-2 articulates the nine grounds for dismissing an indictment or information. This statute provides:

Upon motion of a defendant made pursuant to subdivision 23A-8-3 (1), (2) or (3), the court must dismiss an indictment or information in any of the following cases:
(1) When it is not found, endorsed, and presented or filed as prescribed by this title;
(2) When the names of the witnesses are not inserted at the foot of the indictment or information or endorsed thereon;
(3) When it' does not substantially conform to the requirements of this title;
(4) When' more than one offense is charged in a single count;
(5) When it does not describe a public offense;
(6) When it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution;
(7) When the grand jury which filed the indictment had no legal authority to inquire into the offense charged because it was not within the jurisdiction of the grand jury or because the court was without jurisdiction of the offense charged;
(8) When a person was permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, éx-cept as provided in § 23A-5-11; or
(9) When a defendant charged by information did not have or waive a preliminary hearing before the information was filed.

[¶ 14.] These nine grounds for dismissal of an indictment are exclusive. State v. Springer-Ertl, 1997 SD 128, ¶7, 570 N.W.2d 39, 40-1 (holding that judge could not dismiss information on ground of lack of probable cause). Therefore, although Vatne contends that the grand jury testimony was hearsay and incompetent, these are simply not grounds for dismissal. Furthermore, in State v. Hoekstra, 286 N.W.2d 127, 128 (S.D.1979), we joined the majority of courts when we held that this Court will not inquire into the “legality or sufficiency of the evidence upon which an indictment is based.” See also State v. Gardner, 429 N.W.2d 60, 61 (S.D.1988); Kleinsasser, 436 N.W.2d at 281.

[¶ 15.] In Kleinsasser, the defendant argued that it was reversible error when the trial court denied his motion to dismiss the indictment against him when the indictment was based on hearsay evidence. 436 N.W.2d at 281. In that case, we rejected defendant’s argument and found the Hoekstra case to be totally dispositive of that issue. Id. We, therefore, held that “neither the Fifth Amendment, nor justice and the concept of a fair trial, required indictments to be open to challenge on the grounds that there was inadequate or incompetent evidence before the grand jury.” Id. (citing Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956).) Therefore, Vatne’s arguments under this issue are rejected.

[¶ 16.] 2. Whether the trial court abused its discretion when it considered counts 3, 4, and 5 as “second or subsequent convictions,” pursuant to SDCL 22-42-2, and therefore, sentenced Vatne to mandatory sentences of ten years each.

[¶ 17.] The trial court sentenced Vatne to one-year in the penitentiary for the first distribution charge and then imposed the ten-year mandatory sentence for the three remaining distribution counts. The trial court imposed this sentence pursuant to SDCL 22-42-2, which provides, in salient part:

[N]o person may manufacture, distribute or dispense a substance listed in Schedules I or II; possess with intent to manufacture, distribute or dispense, a substance listed in Schedules I or II; create or distribute a counterfeit substance listed in Schedules I or II; or possess with intent to distribute a counterfeit substance listed in Schedules I or II. A violation of this section is a Class 4 felony ... A first conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least one year, which sentence may not be suspended ... A second or subsequent conviction under this section shall be punished by a mandatory sentence in the state penitentiary of at least ten years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section,

(emphasis supplied). In deciding that the facts of the instant case made application of the ten-year mandatory sentences applicable to the three remaining distribution charges, the trial court concluded: “The requirements of mandatory sentences are met here. [Vatne] distributed to more than one person. Although, it occurred under the same circumstances, [Vatne] did it twice in the same evening.”

[¶ 18.] Vatne argues that common sense interpretation of SDCL 22-42-2 would be that “second or subsequent” convictions must be from altogether different transactions. Therefore, he contends that the trial court erred when it sentenced Vatne to the mandatory sentences for transactions that transpired during the course of the same evening. The State argues that Vatne’s distribution of methamphetamine on two occasions to two different women was not the “same transaction” and therefore, the pertinent language of SDCL 22-42-2 is applicable.

[¶ 19.] The interpretation of the “second or subsequent convictions” language of SDCL 22-42-2 in a case where defendant is charged, tried and sentenced on multiple counts of distribution in one proceeding, is an issue of first impression for this Court. The starting point in this analysis is whether Vatne’s distribution of methamphetamine to two women at two separate occasions during the night should be considered “arising out of the same transaction and involving the same facts and witnesses” as Vatne asserts it should be.

[¶ 20.] In State v. Sieler, the defendant was convicted of attempted first-degree murder, kidnapping, second-degree rape, first-degree burglary and aggravated assault. 1996 SD 114, ¶ 3, 554 N.W.2d 477, 478-79. Each of these convictions arose out the attack of the victim in a three to four hour time span. Id. ¶ 17, 554 N.W.2d at 481. In that case, we stated:

The “same transaction” test is valid only when “transaction” means a single act. When the “transaction” consists of two or more criminal acts, the fact that the two are “successive” does not require the conclusion that they have merged.

Id. at ¶ 18, 554 N.W.2d at 482 (citing Commonwealth ex reí Kréll v. Banmiller, 56 Sch.L.R. 31, 38 (Pa.Com.Fl.1960).) We, therefore, found that “[defendant’s] crimes were each distinct separate acts that were completed before the next act began as shown by the facts ...” Id. at ¶ 19, 554 N.W.2d at 482. See also State v. Cates, 2001 SD 99, ¶ 9, 632 N.W.2d 28, 33 (holding that despite defendant’s argument that he was convicted under two separate statutes for the same offense, “[e]ach act of sexual penetration constitutes a separate offense”).

[¶ 21.] In the case at hand, Vatne was convicted of four separate distributions that were not from the same transaction. Specifically, Count 2 dealt with Vatne’s distribution to L.W. at the pawn shop and Count 3 related to Vatne’s distribution to E.M. at the pawnshop. Count 4 concerned Vatne’s distribution to L.W. at the Hogan residence later that same evening and Count 5 dealt with Vatne’s distribution to E.M. at the Hogan residence. Clearly then, each of the counts of distribution were separate and distinct.

[¶ 22.] Next, our analysis turns to whether the SDCL 22-42-2’s language of “[a] second or subsequent conviction” supports Vatne’s enhanced sentence. For guidance, we look to other courts that have faced this same issue in interpreting similar or identical language in the context sentencing enhancements. In Deal v. United States, 508 U.S. 129, 130, 113 S.Ct. 1993, 1995, 124 L.Ed.2d 44 (1993), the defendant committed six bank robberies on six different dates, and he was convicted on all counts in a single proceeding. The trial court sentenced him to five years on the first 924(c) count, and imposed the mandatory minimum sentence for each of the remaining 924(c) counts under the enhancement provision. 508 U.S. at 131, 113 S.Ct. at 1995-96, 124 L.Ed.2d at 49. The Supreme Court found that the defendant’s second through sixth convictions constituted “second or subsequent convictions” under the enhancement provisions of 18 USC 924(c)(1)(C), which language is similar to SDCL 22^12-2. 508 U.S. at 132, 113 S.Ct. at 1996. The Court noted that “findings of guilt on several counts are necessarily arrived at successively in time.” 508 U.S. at 133, n. 1, 113 S.Ct. at 1997. Therefore, the Court recognized that more than one finding of guilt can occur in a single proceeding. Id. Just as the defendant in Deal was convicted of six different bank robberies that occurred at separate dates, Vatne distributed methamphetamine in four different instances on the night in question.

[¶ 23.] Furthermore, the court in United States v. Foote, 898 F.2d 659, 668 (8thCir.1990), cert. denied, 498 U.S. 838, 111 S.Ct. 112, 112 L.Ed.2d 81 (1990), held that the term “second” meant “another or additional conviction” and “may apply to two convictions contained in the same indictment.” Although that same court later in United States v. Freisinger, 937 F.2d 383, 391 (8thCir.1991) held that this interpretation does not apply to the case when defendant has been convicted of more than one 924(c)(1) violation in a single drug trafficking offense, Vatne’s conviction arose from four distinct distribution transactions and is more factually similar to Foote.

[¶ 24.] Vatne asserts that case law interpreting habitual offender statutes is controlling. He points to State v. Gehrke, 474 N.W.2d 722 (S.D.1991), for support. Although in that case we said that the “prior felony conviction must precede the commission of the principal offense” in order to make SDCL 22-7-7 operative, id. at 726, that statute’s language specifically uses the words “one or two prior felonies.” Conversely, SDCL 22-4-2 employs the words, “second or subsequent convictions.” Further, SDCL 22-7-9 contains limiting words for purposes of the habitual offender statutes that “only one prior conviction arising from the same transaction may be considered.” To the contrary, SDCL 22-42-2 contains no such limiting language.

[¶ 25.] This Court has followed the principal that in statutory construction, the legislature’s express words are to be given effect. See Rushmore State Bank v. Kurylas, Inc., 424 N.W.2d 649, 657 (S.D.1988) (stating that “the legislature said what it meant and meant what it said”) (citations omitted). We agree with the State’s argument that by looking at the statutory language of SDCL 22^42-2, the legislature apparently did not intend to limit sentence enhancement to only those convictions which occurred after entry of judgment for a prior violation of SDCL 22-42-2. See State v. Blem, 2000 SD 69, ¶ 21, 610 N.W.2d 803, 808 (stating that “[w]ords and phrases in a statute must be given their plain meaning and effect”).

[¶26.] Moreover, in the final sentence of SDCL 22-42-2, the legislature defined what it considered a “conviction” for purposes of this statute. It defined a conviction for purposes of the mandatory sentence provisions as “the acceptance by a court of any plea, other than not guilty, including nolo contendere, or a finding of guilt by a jury or court.” (emphasis added). Therefore, under a plain reading of SDCL 22-42-2, a second or subsequent conviction means a second or subsequent finding of guilt by a jury. We must assume the legislature said what it meant and meant what it said.

[¶ 27.] Finally, although Vatne argues that the trial court’s interpretation of SDCL 22-42-2 “arbitrarily” imposes mandatory sentences on first offenders convicted of multiple counts, this argument is not persuasive. Vatne was convicted of distributing a controlled substance on four separate occasions. As the State notes, he technically could have been charged separately and had been given four separate trials. Quite obviously, this would not have been an economical use of judicial resources. Therefore, the fact that Vatne was charged, tried, and sentenced all in a single proceeding does not mean that SDCL 22-42-2 should not apply to him.

[¶28.] 3. Whether the trial court abused its discretion when it denied Vatne’s motion in limine which sought to prohibit any reference to the rape allegations.

[¶ 29.] Vatne argues that the trial court should have granted his motion in limine, which would have excluded the State from presenting the uncharged rape allegations to the jury. During the trial, the State elicited testimony from L.W. and E.M. about the events of the night in question. Both women testified about consuming the methamphetamine, which Vat-ne had given to them at two different occasions during the night. Further, both women testified about the alleged sexual assault. L.M. testified that she felt she had been “taken advantage of’ by Vatne. Vante contends that the uncharged rape allegations made by two young women against him prejudiced the outcome of his trial on the drug charges. However, Vat-ne cites to no authority in support of this argument.

[¶ 30.] We find that this evidence was properly admitted under the res gestae exception to Rule 404(b). As we stated in State v. Goodroad:

This court has ... approved the admission of other crimes where such evidence is ‘so blended or connected’ with the one[s] on trial ... that proof of one incident involves the other[s]; or explains the circumstances; or tends logically to prove any element of the crime charged.

1997 SD 46, ¶10, 563 N.W.2d 126, 130 (citing State v. Floody, 481 N.W.2d 242, 253 (S.D.1992)) (additional citations omitted).

[¶ 31.] Herein, the alleged sexual assault combined with the distribution of the methamphetamines to the young women helped explain the circumstances of the series of events of the night. See State v. Andrews, 2001 SD 31, ¶ 9, 623 N.W.2d 78, 81 (holding that the disputed evidence was admissible under the res gestate exception because the events “were interconnected and part of the continuing chain of activities ... ”). The testimony explained the possible reason that Vatne provided the illegal drugs without cost to the women despite their value on the street for possible illegal sale. Further, testimony concerning the alleged sexual assault helped explain why the two women had gone to the police and admitted their own use of the methamphetamine that night. The distribution of the methamphetamines and the sexual acts that took place were clearly intertwined; as such, the trial court did not abuse its discretion when it denied defendant’s motion in limine. We affirm.

[¶ 32.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . While we review the granting of a motion to dismiss an indictment under an abuse of discretion standard, under Springer-Ertl, dismissal of an indictment for reasons not set forth in SDCL 23A-8-2 would be an error of law and thus by definition, an abuse of discretion.

      . Even if this Court looked behind the indictment, as Vatne urges us to do, Vatne still would not prevail. Agent West, in the grand jury proceeding, testified about Vatne's admissions that he had given the women the methamphetamines on two separate occasions. SDCL 19-16-3 defines such statements as not hearsay. Furthermore, SDCL 23A-5-15 provides that the rules of evidence apply to grand juries. This testimony was, therefore, properly admitted and supported the requisite probable cause to justify further inquiry at trial. See State v. Olsen, 462 N.W.2d 474, 476 (S.D. 1990).

      . This statute provides, in pertinent part, "Whoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ..., be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years....”

      . SDCL 22-7-7 provides:
      When a defendant has been convicted of one or two prior felonies under the laws of this state or any other state or the United States, in addition to the principal felony, the sentence for the principal felony shall be enhanced by changing the class of the principal felony to the next class which is more severe. The determination of whether a prior offense is a felony for purposes of this chapter shall be determined by whether it is a felony under the laws of this state or under the laws of the United States at the time of conviction of such prior offense. For the purpose of this section, if the principal felony is not classified it shall be enhanced to the class which has an equal maximum imprisonment. For the purposes of this section, if the maximum imprisonment for the principal felony falls between two classifications, the principal felony shall be enhanced to the class which has the less severe maximum authorized imprisonment.

      .SDCL 22-7-9 provides:
      A prior conviction may not be considered under either § 22-7-7 or 22-7-8 unless the defendant was, on such prior conviction, discharged from prison, jail, probation or parole within fifteen years of the date of the commission of the principal offense. In addition, only one prior conviction arising from the same transaction may be considered.


source: Caselaw Access Project

license: Public Domain

text:
    2003 SD 32
    STATE of South Dakota, Plaintiff and Appellant, v. Lariy GULLICKSON, Defendant and Appellee.
    No. 22472.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 10, 2003.
    Decided March 19, 2003.

      Lawrence E. Long, Attorney General, Richard M. Williams, Assistant Attorney General, Pierre, for plaintiff and appellant.
    David 0. Carter, Sioux Falls, for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] This appeal arises after the trial court concluded it did not have jurisdiction to hear the State’s motion to enforce court ordered restitution against Larry Gullick-son (Gullickson). We reverse the circuit court’s order.

FACTS AND PROCEDURE

[¶ 2.] Gullickson was an attorney and tax preparer who served as the trustee for several trusts. In December of 1993, after an accountant for one of the estates uncovered a theft of money by Gullickson, a criminal investigation began. Ultimately, fourteen separate incidents of embezzlement were uncovered that involved eight different victims.

[¶ 3.] Gullickson entered into an agreement with the State in which he agreed to plead guilty to embezzlement of property received in trust, contrary to the provisions of SDCL 22-30A-10 and SDCL 22-30A-17. A second count, forgery in violation of SDCL 22-39-36, was dismissed. As part of the plea agreement, Gullickson promised to make full restitution of $101,930.38 to his victims.

[¶ 4.] At his sentencing, Gullickson received a ten-year prison sentence and was ordered to make restitution. About a year later, Gullickson was granted a sentence modification that reduced his sentence from ten to eight years. The other terms of the original judgment, including restitution, remained unchanged.

[¶ 5.] After Gullickson was released from prison on May 18, 2000, he continued making restitution payments. However, he stopped making payments after December 5, 200Ó. At that time, he still owed over $40,000 in restitution. Therefore, on April 16, 2002, the State made a motion to the circuit court for an order to show cause as to why Gullickson should not continue making the court ordered restitution.

[¶ 6.] The day before the hearing, the circuit court, sua sponte, raised the issue of jurisdiction. After hearing the parties’ arguments on the jurisdictional issue, the circuit court entered its order that denied the State’s motion, deciding that it lacked jurisdiction to hear the merits of the case. The trial court found that once a defendant is sentenced to the executive branch of government, the judicial branch loses jurisdiction over the ability to collect restitution. The State brings this appeal, raising the following issue for our consideration: Whether the circuit court has jurisdiction to enforce the restitution order.

STANDARD OF REVIEW

[¶ 7.] Because this appeal requires us to decide whether the circuit court has jurisdiction to hear the merits of the case, our review is de novo. State v. Neitge, 2000 SD 37, ¶ 10, 607 N.W.2d 258, 260 (citations omitted).

ANALYSIS AND DECISION

[¶ 8.] It is the policy of this state that restitution is to be made by the violator to the victims of the criminal acts to the extent that the violator is reasonably able to do so. Pursuant to SDCL 23A-28-1:

It is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator’s criminal activities to the extent that the violator is reasonably able to do so. An order of restitution may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.

[¶ 9.] The State brought its motion for an order to show cause pursuant to SDCL 23A-27-25.4. This statute provides:

If a defendant sentenced to pay a fine, costs or restitution, defaults in the timely payment thereof, the court may, upon its own motion or upon motion of the state’s attorney, require the defendant to show cause why he should not be imprisoned or jailed for nonpayment. The court may issue a warrant of arrest, bench warrant or order to show cause for the defendant’s appearance.

[¶ 10.] Furthermore, the State asserts that the circuit court has authority under SDCL 23A-27-25.5 to enforce the restitution order. This statute provides:

No defendant may be imprisoned or jailed for failure to pay a fíne, costs and restitution or have his suspended prison or jail sentence revoked without a prior hearing. At the hearing, the defendant shall have the burden of proof to establish to the reasonable satisfaction of the magistrate or circuit judge that he did not willfully fail to pay the fine, costs or restitution or that he did make a bona fide effort to pay the fine, costs or restitution.
Failure by the defendant to make such a showing shall be grounds for being imprisoned or jailed. If the sentence provided for payment of fine, costs or restitution only, the term of jail or imprisonment shall be no longer than the number of days equal to the total amount of the fine, costs and restitution imposed divided by twenty. For purposes of making this computation, any fraction of less than one day shall be dropped from the term of imprisonment. In no event may such imprisonment for failure to pay the fine, costs and restitution together with all other time served or to be served exceed the maximum allowed by statute.
If the defendant establishes nonpayment was not willful, or that he did make a bona fide effort to pay, he may not be imprisoned or jailed for nonpayment. The magistrate or circuit judge shall consider other alternatives which take into account the state’s interest in punishment and deterrence.
The court shall make findings in its decision.

These statutes contain elements of both civil and criminal contempt. They allow the trial court broad latitude in fashioning a method of dealing with the issue of unpaid restitution.

[¶ 11.] It was Gullickson’s position before the trial court that under SDCL 23A-28-8, as it existed in 1995 at the time he received his sentence, the circuit court does not have the requisite jurisdiction to now enforce the order of restitution. SDCL 23A-28-8 was amended in 2001 so that it now provides:

Failure of the defendant to comply with § 23A-28-3 or to comply with the plan of restitution as approved or modified by the court constitutes a violation of the conditions of probation. Without limitation, the court may modify the plan of restitution or extend the period of time for restitution, regardless of whether the defendant is no longer on probation. If the defendant fails to make payment as ordered by the court, the defendant may be held in contempt of the court’s order, (emphasis added.)

[¶ 12.] However, this statute, as it existed in 1978 and through the time of Gullickson’s crime and sentence, provided, “[t]he court may modify the plan of restitution or extend the period of time for restitution, but not beyond the maximum probationary period.” Essentially, Gul-lickson argues that the statute’s language as it existed at the time of his sentencing is what should be applied by the court; otherwise, it would be a violation of ex post facto constitutional provisions. The State replies that SDCL 23A-28-8 is inapplicable to this case. We agree. Gullickson was never placed on probation by the trial court. He was sent to the penitentiary and later paroled therefrom.

[¶ 13.] The circuit court, in the motion hearing, concluded that it lacked jurisdiction over Gullickson to compel him to pay his restitution obligation. It reasoned:

This Court is of the opinion that when this Court sentences the defendant to the Department of Corrections that the matter and the execution of the sentence is then left in the hands of the ... Department of Corrections and that would include the restitution ... [T]his court is of the opinion that it does not reacquire jurisdiction, that once the defendant is sentenced to the penitentiary that the matter then rests with the executive branch ... [T]he sentence of the Court never anticipated that this Court even if it had jurisdiction would be responsible at some later time for collecting the restitution.

[¶ 14.] We hold that the circuit court has jurisdiction over Gullickson to compel him to pay the court-ordered restitution. This conclusion is arrived at after an analysis of the relevant statutory authority.

[¶ 15.] There appears to be confusion between the parties as to which statutes apply to the instant case. We first note that at the time the State brought its motion to show cause, Gullickson was no longer under the control of the Board of Pardons and Paroles because he was released from prison and later supervision under parole. Although while Gullickson was in confinement in the penitentiary, SDCL 23A-28-3 gave the Board of Pardons and Paroles the power to prepare a plan of restitution, we have held before that this power does not extend to the authority to set restitution in the first place. See State v. Wolff, 438 N.W.2d 199, 201 (S.D.1989).

[¶ 16.] Second, the circuit court ordered restitution, separate and independent of Gulliekson’s prison sentence. SDCL 22-6-1 provides in pertinent part:

The court, in imposing sentence on a defendant who has been found guilty of a felony, shall order in addition to the sentence that is imposed pursuant to provisions of this section, that the defendant make restitution to any victim in accordance with the provisions of chapter 23A-28. (emphasis added.)

[¶ 17.] Although SDCL 23A-27-19 deprives the circuit court of jurisdiction for the purpose of revoking a suspended sentence while the defendant remains under the Board’s jurisdiction, the restitution ordered was not made a condition of Gullick-son’s partially suspended sentence. Additionally, the language of SDCL 23A-27-19 does not specifically mention “restitution.” It clearly is limited to the circuit court’s jurisdiction to suspend sentences and has nothing to do with enforcement of restitution orders.

[¶ 18.] Rather, SDCL 23A-27-25.4— 25.5 provide the mechanism for which an order of restitution may be enforced. Because restitution acts as an independent judgment to any other sentence imposed, it-must have an avenue for collection other than being tied to the conditions of probation, suspended sentence, or collection by file Department of Corrections while the defendant is incarcerated.

[¶ 19.] Moreover, the circuit court has the inherent power to enforce the terms of its orders. This authority includes the power to “punish for willful and contumacious failure to pay money,” similar to a case where one party to a divorce action refuses to follow the orders of a court in a property division. See Hanks v. Hanks, 334 N.W.2d 856, 857 (S.D.1983). Where restitution is substantial as in this case, the only reasonable hope of making full restitution to the victims is to make the payments small enough that they can be made by the defendant’s obtaining the means of repayment, such as obtaining a job upon the defendant’s release from prison.

[¶ 20.] As part of Gullickson’s plea, he agreed to aid law enforcement in its continued investigation involving trusts in which he was trustee. In exchange, Gul-lickson received use immunity for any crimes discovered due to his cooperation. Significantly, pursuant to this plea agreement, Gullickson agreed to make full restitution for each act of embezzlement which was uncovered. To allow Gullickson to unilaterally void that agreement by claiming that neither the executive branch nor the judicial branch has jurisdiction over him to enforce the terms of the plea and his judgment of conviction would be contrary to the intent of our state’s policy on restitution. It is also a violation of the plea agreement as much as if the State now sought to prosecute him for counts of embezzlement which it dismissed in part for an agreement that Gullickson make full restitution.

[¶21.] For the foregoing reasons, we reverse and remand for a hearing on the merits.

[¶ 22.] SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . SDCL 22-30A-10 provides:
      Any person, who has been entrusted with the property of another, who, with intent to defraud, appropriates such property to a use or purpose not in the due and lawful execution of his trust, is guilty of theft. A distinct act of taking is not necessary to constitute theft under this section.

      . SDCL 22-30A-17 provides, in relevant part:
      Theft is grand theft, if:
      (1) The value of the property stolen exceeds five hundred dollars;
      (3) Property of any value is taken from the person of another;

      . SDCL 23A-27-19 provides:
      A court which may suspend sentence under § 23A-27-18 retains jurisdiction for the purpose of suspending any such sentence for a period of one year from the effective date of the judgment of conviction, notwithstanding the fact that the time for an appeal from such judgment is limited to a shorter period of time. The court shall notify the attorney who prosecuted such person or shall notify the successor in office of such attorney at least fourteen days in advance of such suspension. Such notice shall be provided any victim by such attorney pursuant to the provisions of § 23A-27-1.2. Any person whose sentence is suspended pursuant to this section is under the supervision of the board of pardons and paroles, except as provided in § 23A-27-18.2. The board is charged with the responsibility for enforcing the conditions imposed by the sentencing judge and the board retains jurisdiction to revoke the suspended portion of the sentence for violation of the terms of the suspension.

      . Although a discharge in bankruptcy was mentioned in Gullickson's brief, the dis-chargeability of the judgment is not considered or decided by this Court at this time. We are remanding for a hearing "on the merits."


author: TERNUS, Justice. CADY, Justice,

text:
    Terry J. HARRINGTON, Appellant, v. STATE of Iowa, Appellee.
    No. 01-0653.
    Supreme Court of Iowa.
    Feb. 26, 2003.
    Rehearing Denied April 18, 2003.

      Thomas P. Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Richard Crowl, Pottawatta-mie County Attorney, for appellee.
    Thomas H. Makeig of Thomas H. Mak-eig, P.C., Fairfield, for amicus curiae Dr. Lawrence A. Farwell.
   TERNUS, Justice.

Terry Harrington appeals a district court decision denying his application for postconviction relief. He claims the court erred in holding his claims were time barred. See Iowa Code § 822.3 (1999) (imposing a three-year statute of limitations on postconviction relief actions). In addition, he faults the district court for failing to vacate his first-degree murder conviction and order a new trial on the basis of newly discovered evidence consisting of a recantation by the State’s primary witness, police investigative reports impheating another suspect in the crime, and “brain fingerprinting” test results. See id. § 822.2(4) (providing postconviction remedy where material facts were not presented at criminal trial). Harrington also rests error on the court’s refusal to grant relief based on a due process violation resulting from the prosecution’s failure to produce the police reports at the time of Harrington’s criminal trial. See id. § 822.2(1) (providing postconviction remedy where conviction was in violation of United States Constitution). The State disputes Harrington’s allegations of error and affirmatively asserts that Harrington’s appeal is untimely.

After submission of the appeal, Harrington filed a conditional motion for limited remand. In the event this court believes that he is not entitled to a new trial on the basis of the present record, Harrington seeks to have the case remanded for the purpose of taking additional testimony in support of his application.

Upon our review of the record and the arguments of the parties, we conclude (1) Harrington’s appeal is timely; (2) this action is not time barred; (3) Harrington is entitled to relief on the basis of a due process violation; and (4) Harrington’s motion for conditional remand is moot. Accordingly, we reverse the district court judgment, and remand for entry of an order vacating Harrington’s conviction and sentence, and granting him a new trial. We deny Harrington’s motion for remand on the basis of mootness.

I. Timeliness of Appeal.

Before we discuss the merits of Harrington’s appeal, we address the State’s contention that this court lacks jurisdiction because Harrington’s notice of appeal was not filed before the applicable deadline. See In re Marriage of Mantz, 266 N.W.2d 758, 759 (Iowa 1978) (stating when an appellant files a late notice of appeal, the appellate courts are without jurisdiction to hear the appeal). The trial court entered its decision on March 5, 2001. The defendant then filed a motion under Iowa Rule of Civil Procedure 1.904(2) asking the court to expand its findings of fact and conclusions of law. The court denied the motion on March 28 and Harrington filed his notice of appeal on April 20. Thus, the notice of appeal was filed within thirty days of the court’s ruling on the post trial motion, but more than thirty days from the court’s initial decision.

Iowa Rule of Appellate Procedure 6.5(1) requires that a notice of appeal be filed within thirty days of the trial court’s decision or within thirty days of the trial court’s ruling on any rule 1.904(2) motion that is filed. If the rule 1.904(2) motion is not timely filed, however, it will not toll the thirty-day time period for filing a notice of appeal. See State ex rel. Miller v. Santa Rosa Sales & Mktg., Inc., 475 N.W.2d 210, 213-14 (Iowa 1991). A rule 1.904(2) motion must be filed within the time allowed for filing a motion for new trial, which is ten days after the filing of the district court’s decision. See Iowa Rs. Civ. P. 1.904(2), .1007.

In the present case, the rules of civil procedure required Harrington to file his post trial motion by Thursday, March 15. Harrington acknowledges that his motion was not date stamped by the clerk of court on or before March 15, but claims he faxed a copy to the clerk of court and the presiding judge on that date. He also served a copy of the motion on opposing counsel by mail on the same day.

The trial court file contains two copies of Harrington’s motion, one file stamped on Monday, March 19 and one filed stamped on Tuesday, March 20. In addition, when this issue was raised by the State on appeal, the district court, at Harrington’s request, entered an order “to clarify or correct the record.” In this order, the court made a factual finding that Harrington had faxed a motion under rule 1.904(2) to the clerk and to the court on March 15, and had mailed a copy to the clerk on the same day. The court also noted that it had made a finding in its ruling on the rule 1.904(2) motion that the “motion was timely filed.”

Although our rules contemplate that pleadings will be filed with the clerk, rule 1.442(5) addresses the situation where a pleading is filed with a judge. That rule provides:

Filing with the clerk defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that a judge may permit them to be filed with the judge, who shall note thereon the filing date and forthwith transmit them to the office of the clerk.

Iowa R. Civ. P. 1.442(5) (emphasis added). We think the exception to the rule applies here.

The trial judge apparently accepted the defendant’s motion for filing when the judge received a copy on March 15. Although the judge did not note the filing date on his copy as required by rule 1 .442(5), it appears the judge did transmit the motion to the clerk, as there are two copies in the clerk’s file, each with a different date stamp. We think the judge’s later ruling confirming his receipt and acceptance of the motion on March 15 substantially complies with the rule’s requirement that the filing date be noted on the motion. Therefore, Harrington’s rule 1.904(2) motion was timely filed and, consequently, his notice of appeal filed within thirty days of the court’s ruling on his motion was likewise timely filed.

We turn now to the substantive issues raised in this appeal. Our discussion begins with the factual background and procedural history of this case.

II. Background Facts and Proceedings.

A. Original murder trial. On August 4, 1978, Terry Harrington was convicted of first-degree murder in the shooting death of John Schweer. Because most of the relevant facts in this postconviction relief action relate to the underlying criminal proceeding in which Harrington was the defendant, we will refer to Harrington as the defendant in the remainder of our opinion.

Sometime after midnight on July 22, 1977, security guard John Schweer was murdered at a car dealership in Council Bluffs, Iowa. At the time, Schweer, a retired police captain, was a night watchman for several car dealerships in the area. Schweer had been shot, and a 12 gauge shotgun shell was found in the vicinity of the crime. Footprints and dog prints were also discovered near Schweer’s body.

Harrington, who was seventeen at the time, was charged with Schweer’s murder and was ultimately convicted, primarily on the testimony of a juvenile accomplice, Kevin Hughes. Hughes gave the following account of July 22, 1977. Shortly after midnight, Hughes, Harrington, and another juvenile, Curtis McGhee, went to the dealership with the intent to steal a beige Toronado. Hughes waited in Harrington’s car while Harrington and McGhee walked around a building to find the desired automobile. Harrington had a shotgun. Shortly after Harrington and McGhee left, Hughes heard a gun shot. Then Harrington and McGhee came running back. Harrington said he had just shot a cop.

Hughes was impeached by the defense with prior statements he had made implicating other persons in the crime. Hughes had separately named three other men as the killer. Each man was ultimately discovered to have an alibi before Hughes finally fingered Harrington. Hughes admitted that he had also changed his testimony about the type of gun used, first stating that Harrington had a pistol, then a 20-gauge shotgun, and finally a 12-gauge shotgun. He conceded he was “a confessed liar,” having lied “[ajbout five or six times talking about this case.” Hughes acknowledged that he visited the murder scene with the police and prosecutor and told them what he thought they wanted to hear. At the time, Hughes was being held on various theft and burglary charges and “he was tired of [being in jail].” He admitted that these charges were dropped after he agreed to testify against Harrington and McGhee.

The physical evidence linking Harrington to the crime was minimal. Hughes claimed Harrington wrapped the shotgun in his — Harrington’s—jacket after the shooting. Chemical examination of the jacket by the police several weeks after the murder revealed two flakes of smokeless gunpowder consistent with the type used in shotgun shells. In addition, one of McGhee’s friends testified that he saw part of a shotgun in the trunk of Harrington’s car a few days before the murder.

Harrington presented an alibi defense, but this defense was rebutted by the prosecution’s witnesses who testified they saw Harrington with Hughes and McGhee late in the evening of July 21. These witnesses included Hughes’ girlfriend, Candice Pride, and two other juvenile friends of Hughes, Roderick Jones and Clyde Jacobs. They testified they saw Hughes get into Harrington’s car around eleven o’clock on the evening of July 21 and drive off with Harrington and McGhee. Another girlfriend of Hughes, Linda Lee, testified that Hughes came to her home in the early morning hours one night in July 1977. When she walked Hughes to the door as he was leaving, she saw Harrington’s car. Lee stated she could not tell if Harrington was in the vehicle, only that there were two other people in the car. She could not recall which night in July this occurred.

Harrington and McGhee were both convicted of first-degree murder in separate trials. Harrington’s appeal failed, see State v. Harrington, 284 N.W.2d 244 (Iowa 1979), as did a subsequent postconviction relief action in which he claimed that Hughes’ testimony was perjured, Harrington v. State, 458 N.W.2d 874 (Iowa Ct.App.1990). Harrington also unsuccessfully sought habeas corpus relief in federal court. See Harrington v. Nix, 983 F.2d 872 (8th Cir.1993). He is currently serving a life sentence without the possibility of parole.

B. Second postconviction relief (PCR) action. The present PCR action was filed in 2000, more than twenty years after Harrington’s conviction. Based on this timing, the State asserted the statute of limitations as an affirmative defense. Harrington relied on an exception to the statutory limitations period for “a ground of fact or law that could not have been raised within the applicable time period.” Iowa Code § 822.3. Although the trial court concluded the evidence upon which Harrington relied was newly discovered and could not have been discovered earlier in the exercise of due diligence, the court inexplicably concluded Harrington’s petition for postcon-viction relief was time barred.

Notwithstanding this determination, the court also addressed the merits of the defendant’s claim for relief. Harrington requested vacation of his conviction under Iowa Code section 822.2, which provides in pertinent part:

Any person who has been convicted of, or sentenced for, a public offense and who claims that:
1. The conviction or sentence was in violation of the Constitution of the United States or the Constitution or laws of this state; [or]
4. There exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
may institute, without paying a filing fee, a proceeding under this chapter to secure relief.

Id. § 822.2(1), (4). Harrington’s claim under section 822.2(1) was based on an alleged due process violation arising from the prosecution’s failure to turn over eight police reports to the defense during the criminal trial. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963) (holding failure of prosecution to disclose evidence that may be favorable to the accused is a violation of the Due Process Clause of the Fourteenth Amendment). The same police reports, in addition to recantation testimony and novel computer-based brain testing, also served as a basis for Harrington’s claim of newly discovered evidence under section 822.2(4).

In order to establish a Brady violation, the defendant had to prove “(1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issue of guilt.” State v. Veal, 564 N.W.2d 797, 810 (Iowa 1997), overruled in part on other grounds by State v. Hallum, 585 N.W.2d 249, 253 (Iowa 1998). To prevail on his newly discovered evidence claim, Harrington was required to show:

(1) that the evidence was discovered after the verdict; (2) that it could not have been discovered earlier in the exercise of due diligence; (3) that the evidence is material to the issues in the case and not merely cumulative or impeaching; and (4) that the evidence probably would have changed the result of the trial.

Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991).

Because we conclude the due process claim is dispositive of the present appeal, we do not reach the question of whether the trial court erred in rejecting Harrington’s request for a new trial on the basis of newly discovered evidence. Nonetheless, we briefly review the evidence introduced by the defendant at the PCR hearing with respect to various witnesses’ recantation of their incriminating trial testimony, as it gives context to our later discussion of the materiality of the police reports. Because the scientific testing evidence is not necessary to a resolution of this appeal, we give it no further consideration.

1. Witness recantation. Harrington introduced testimony from three witnesses who had testified for the prosecution at the criminal trial: accomplice Kevin Hughes, and two individuals who rebutted Harrington’s alibi, Candice Pride and Clyde Jacobs. All three recanted their trial testimony.

Hughes testified that he made up the story about he, Harrington and McGhee going to the dealership to steal a car. He said he lied to obtain a $5000 reward being offered for information about the murder and to avoid being charged with the crime. (It appears Hughes was being held in Omaha on car theft charges at the time he came to the attention of the Council Bluffs police. Omaha authorities suspected that Hughes or others involved in a car theft ring might have been involved in or might know something about the Schweer homicide, and so contacted the Council Bluffs investigators.)

Pride testified that she knew nothing about Harrington’s involvement in the murder and had no idea if her testimony at his criminal trial was true. She said she had simply testified to what Hughes told her to say because she was dating Hughes at the time.

Finally, Jacobs testified he lied when he said at the criminal trial that he saw Harrington with Hughes the night of the murder. Jacobs said he never saw Harrington that night. He claims he gave a contrary story at trial because he was pressured by the prosecutors and police. Jacobs stated he, Hughes, and others were stealing cars back then, and he implicated Harrington to avoid being prosecuted for those offenses. He asserted Harrington was never part of the car theft ring.

Joseph Hrvol, the then assistant county attorney who prosecuted the case against Harrington, testified for the State at the second PCR hearing. Hrvol emphatically denied that any “buy” money was offered to Hughes or that Jacobs’ testimony was coerced. While there was no documentation in police records that Hughes had been offered a reward, one of the previously undisclosed police reports indicated that the police had “put the word out what we had to offer and what we wanted in return.” This same report, dated July 27, 1977, stated that “officers made several other contacts this evening [July 25, 1977] putting out information money,” and that the next day, “[s]ome of the contacts started to make contact back to [the police].” This report identified one individual by name who “was offered money if he could come up with something,” and another potential witness “who was also offered information money.”

The PCR court determined the recantation evidence could not have been discovered earlier in the exercise of due diligence. The court also concluded, however, that the recantations were not credible. The court considered the new testimony cumulative and merely impeaching, and thought it would not affect the outcome of the case in a new trial.

2. Police investigative reports. As indicated earlier, Harrington claims in the present action that eight police reports were not made available to him during his criminal trial in 1978. Harrington’s original defense attorney, Paul Watts, died after the appeal of the criminal case and therefore his file was not available for review. Nonetheless, James Cleary, who represented Harrington on his first PCR claim, testified at the second PCR trial that he told the county attorney’s office in 1987 “that [he] wanted to see everything,” “the DCI files, ... the police department files from Council Bluffs, and any and all related documents relative to their investigation.” The materials disclosed to him at that time did not contain the eight police reports. The evidence showed these reports were not known to Harrington or his PCR attorneys until 1999 when a person who had become interested in Harrington’s case asked the Council Bluffs police department for a copy of the complete file pertaining to Schweer’s murder. The police reports were produced at that time and eventually given to Harrington’s present counsel.

Harrington argued this newly discovered evidence warranted vacation of his conviction. He also asserted a Brady violation occurred in 1978 because these reports contained potentially exculpatory evidence of an alternative suspect and they had been withheld by the prosecution. All but one of the eight reports documented the police department’s investigation of another suspect in the Schweer homicide, forty-eight year old Charles Gates.

Of particular relevance here, these documents showed that Schweer had made a written request for additional lighting in the car lot just days before his murder. In a note dated 12:30 a.m. July 20, 1977, Schweer stated he had observed a man trying to get into one of the trucks “last night” and had chased him out of the parking lot. Schweer wanted the dealership to install floodlights in the car lot. Police confirmed this incident through John Burke, a Northwestern Bell employee who worked in the area of the car dealership and approached police after the murder to provide the following information. Burke told police he saw a man running with a dog in that vicinity shortly before midnight on July 19, 1977. At first Burke thought the man was carrying a board, but then realized it was a shotgun. Burke said that not long after he saw this man, another man in a vehicle stopped to ask if Burke had seen the running man. Burke later identified the person in the vehicle as John Schweer.

Another incident the following night was also documented in the police reports. This report, prepared by a Council Bluffs police officer on the morning of July 23, 1977, revealed that the officer had talked with Schweer in the early morning hours of July 21 concerning Schweer’s observation of a man in the area of the dealership. Schweer told the officer that he had observed a man carrying what Schweer thought was a rifle, although the item could have been a car jack. Schweer said he had lost sight of the man, but he believed the man was still in the area, hiding in some nearby weeds. The officer’s report also documented there was a dog in the vicinity that Schweer thought belonged to the man with the rifle.

The investigative reports also revealed the police had talked to an individual who worked at a service station near the car dealerships. This witness told the police he had seen a man walking a dog in that area during the evening hours on various occasions. This witness was able to identify Charles Gates as that person from a photograph.

Although the undisclosed reports state the police subsequently located Gates and questioned him at the police station, no summary or recording of that interview has been discovered. One of the reports also references a polygraph test administered to Gates by Confidential Polygraph Service in Omaha. This test was interpreted to show Gates was “not truthful in his denial of owning a shotgun or having shot John Schweer.” The actual polygraph results, which are stated in one of the newly discovered reports to be contained in an addendum to that report, have never been produced, even though, according to the police, polygraph reports are usually put in the case file. The reports that were found showed that Gates was a suspect in a fourteen-year-old unsolved murder in Omaha. Police also learned during interviews with Gates’ former neighbors and a former landlord that Gates was “a ‘spooky type individual,’” was a loner, had “very strange living habits,” and had three dogs that appeared to be “extremely mean.”

Several Council Bluffs police officers involved in the investigation of Schweer’s murder were also called to testify at the second PCR hearing. They basically confirmed the substance of the written reports. These officers agreed that several witnesses had seen Charles Gates in the vicinity of the car lot in the days surrounding the murder. An individual, whom the police thought was Gates, had been observed walking a dog and carrying a gun in the area. One officer, Larry Williams, stated the police thought Gates was the person Schweer had chased off the car lot a few days before Schweer’s death. This same officer, who oversaw the investigation in the Schweer murder case, believed the police eventually excluded Gates as a suspect, but no one could now recall the reason for Gates’ elimination. Although Officer Williams testified a report stating why Gates was no longer a suspect “should have been” in the file, such a report has not been discovered.

The district court found Harrington’s trial counsel did not have the police reports in question and that the reports were material and not merely cumulative or impeaching. Nonetheless, the court concluded disclosure of the police reports probably would not have changed the outcome of the trial. The court noted that other information admittedly provided to Harrington’s original attorney revealed “[mjore than a dozen potential suspects, including Gates.” The court noted one report known to defense counsel stated a person living in the vicinity saw an individual matching Gates’ description walking dogs in the area. Moreover, defense counsel knew the police had taken casts of dog paw prints from the murder scene. Concluding the evidence would probably not have changed the outcome of the criminal trial, the district court denied postconviction relief on the basis of the Brady violation and under the theory of newly discovered evidence.

III. Scope of Review.

“Postconviction proceedings are law actions ordinarily reviewed for errors of law.” Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). But when the basis for relief is a constitutional violation, our review is de novo. Id. Because the basis for relief here is a due process violation, we employ a de novo review of the court’s ruling on the asserted Brady violation. See State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996) (conducting a de novo review of due process claim based on a Brady violation).

Our review of the court’s ruling on the State’s statute-of-limitations defense is for correction of errors of law. See Dible v. State, 557 N.W.2d 881, 883 (Iowa 1996) (reviewing trial court’s dismissal of PCR action as time barred “to correct errors of law”). Thus, we will affirm if the trial court’s findings of fact are supported by substantial evidence and the law was correctly applied. Benton v. State, 199 N.W.2d 56, 57 (Iowa 1972). We start with that issue.

IV. Statute of Limitations.

Iowa Code section 822.3 contains' a statute of limitations for postconviction relief actions. At the time Harrington filed the present action, this provision required that PCR applications “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 proceden-do is issued.” Iowa Code § 822.3. This statute was enacted in 1984, several years after Harrington’s conviction and appeal became final. See 1984 Iowa Acts ch. 1193, § 1 (codified at Iowa Code section 663A.3 (1985)). In Brewer v. Iowa District Court, 395 N.W.2d 841 (Iowa 1986), we held “that all potential postconviction applicants whose convictions became final prior to July 1, 1984, must file their applications' for postconviction relief on or before June 30, 1987, or be barred from relief” 395 N.W.2d at 844 (holding Harrington’s first PCR application was timely filed). Thus,- Harrington’s present action is time barred unless an exception applies.

To avoid this problem, Harrington relies on that part of Iowa Code section 822.3 providing that the three-year statute of limitations “does not apply to a ground of fact or law that could not have been raised within the applicable time period.” The district court apparently concluded this exception did not apply because it ruled that Harrington’s PCR action was “time barred by section 822.3.”

In addition to the obvious requirement .that an applicant relying on section 822.3 must show the alleged ground of fact could not have been raised earlier, the applicant must also show a nexus between the asserted ground of fact and the challenged conviction. See Dible, 557 N.W.2d at 884; Hogan v. State, 454 N.W.2d 360, 361 (Iowa 1990). This additional requirement is based on the common sense conclusion that it would be absurd to toll the statute of limitations pending the discovery of a trivial fact that could not possibly affect the challenged conviction. See generally State v. Anderson, 636 N.W.2d 26, 35 (Iowa 2001) (stating court interprets statutes to avoid an absurd result). Accordingly, we have held that an “exonerating ground of fact must ... be ‘relevant and ... likely [to] change the result of the case.’ ” Hogan, 454 N.W.2d at 361; accord Dible, 557 N.W.2d at 884 (“a satisfactory nexus exists when the exonerating ground would likely have changed the result of the original criminal case”).

The State contends and the trial court apparently believed that the nexus test mirrors the requirements for a substantive claim for postconviction relief based on newly discovered evidence. See Iowa Code § 822.2(4). To succeed on such a claim an applicant must establish, among other things, that the newly discovered evidence is material, not merely cumulative or impeaching, and would probably have changed the outcome of the trial. See Jones v. State, 479 N.W.2d 265, 274 (Iowa 1991). Although our prior cases have never equated the requirements for the ground-of-fact exception with a newly-diseovered-evidence claim for relief, the language used in our cases dealing with both concepts is similar. Compare Dible, 557 N.W.2d at 884 (holding section 822.3 requires likelihood that result would be different), with Jones, 479 N.W.2d at 274 (holding section 663A.2(4) (now found at section 822.2(4)) requires probability of different result). Since this similarity has generated confusion in the present case, it is appropriate at this time to clarify the differences between these two concepts.

Initially, we confirm our statement in Hogan that a postconviction-relief applicant relying on the ground-of-fact exception must show the ground of fact is relevant to the challenged conviction. 454 N.W.2d at 361. By “relevant” we mean the ground of fact must be of the type that has the potential to qualify as material evidence for purposes of a substantive claim under section 822.2. We specifically reject any requirement that an applicant must show the ground of fact would likely or probably have changed the outcome of the underlying criminal case in order to avoid a limitations defense. A determination of that issue must await an adjudication, whether in a summary proceeding or after trial, on the applicant’s substantive claim for relief. We disavow our prior cases to the extent they are inconsistent with the standard we set forth today.

Turning to the case at hand, we note the trial court did not discuss whether the ground-of-fact exception asserted by Harrington applied. Notwithstanding the lack of express findings on this matter,, we can safely assume the court’s rejection of this exception was not based on Harrington’s failure to show that he could not have raised the asserted matters earlier. With respect to both the undisclosed police reports and the recantation evidence, the court held, in ruling on Harrington’s substantive claims, that he had proved they were discovered after the verdict in his criminal trial and that they could not have been discovered earlier than they were discovered in the exercise of due diligence. These findings are clearly supported by substantial evidence, which we have reviewed above, and so are binding under the standard of review applicable to the statute-of-limitations issue.

The court’s rejection of the ground-of-fact exception was apparently based on its erroneous belief that Harrington had to prove the exonerating ground met the requirements for a claim of newly discovered evidence, a claim expressly rejected by the trial court. This error is significant because application of the correct principles of law requires a conclusion contrary to that reached by the trial court.

Having determined Harrington could not have raised these matters earlier, the only remaining task for the trial court was to decide whether there is a nexus between the undisclosed police reports and the recantation evidence on one hand and the defendant’s conviction on the other. Clearly there is. Both classes of evidence are the type of facts having the potential to qualify as material evidence that probably would have changed the outcome of Harrington’s trial. They are, therefore, relevant and, as such, meet the nexus requirement.

Because Harrington asserted a relevant ground of fact or law “that could not have been raised within the applicable time period,” this action is not time barred. The district court erred in making a contrary ruling. That brings us to the merits of Harrington’s application for postconviction relief.

V. Due Process Claim.

We briefly restate two earlier observations to set the stage for our analysis. First, our review is de novo. See Romeo, 542 N.W.2d at 551. Second, to show a due process violation, Harrington must prove “(1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issue of guilt.” Veal, 564 N.W.2d at 810 (stating requirements for a Brady violation). We address each element separately.

A. Suppression of the evidence. Evidence is suppressed “when information is discovered after trial ‘which had been known to the prosecution but unknown to the defense.’ ” Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988). This test does not mean, however, that evidence unknown to the individual prosecutor is not considered suppressed. See Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490, 508 (1995). The prosecutor “has a duty to learn of any favorable evidence known to ... others acting on the government’s behalf in the case, including the pqlice.” Id. Regardless of whether the prosecutor actually learns of the favorable evidence, the prosecution bears the responsibility for its disclosure. Id. at 438, 115 S.Ct. at 1567-68, 131 L.Ed.2d at 508. Thus, it is the fact of nondisclosure that is important; “[t]he good faith or bad faith of the prosecution in failing to produce the evidence” is not. Romeo, 542 N.W.2d at 551; accord Kyles, 514 U.S. at 437-38, 115 S.Ct. at 1567-68, 131 L.Ed.2d at 508.

It is also now well established that the prosecution’s duty to disclose “is applicable even if there has been no request by the accused” for the information. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286, 301 (1999). Nonetheless, “if the defendant either knew or should have known of the essential facts permitting him to take advantage of the evidence,” the evidence is not considered “suppressed.” Cornell, 430 N.W.2d at 385.

The State does not dispute that the evidence in question was known to the prosecution — or at least the police — during trial. Nor does the State challenge the trial court’s factual finding that the police reports were not known to the defense at trial. Upon our de novo review, we agree with the trial court and find that Harrington did not discover the reports until more than twenty years after his conviction when a person assisting Harrington’s family obtained the complete file on Schweer’s murder.

We also think the reports were “suppressed” within the meaning of the Brady rule. It is apparent from some of the questions asked by Harrington’s defense counsel at trial that he had some information about a man seen walking a dog and carrying a shotgun near the railroad tracks by the car dealership. Gates is never mentioned by name, however, and Harrington’s first postconviction relief counsel testified that there were no police reports referring to Gates in the materials provided to him by the prosecutor in 1987. In addition, one of the lead investigators testified without impeachment at Harrington’s 1988 PCR hearing that the police had no immediate suspects in the Schweer homicide. We think it probable that original trial counsel did not know that Gates was the suspicious person seen by witnesses in the area. Clearly, counsel did not know of Schweer’s contact with a person fitting Gates’ description in the nights preceding Schweer’s murder, including the fact that Schweer caught this individual trying to break into a truck.

We conclude Harrington did not have the “essential facts” of the police reports so as to allow the defense to wholly take advantage of this evidence. As the Nevada Supreme Court stated under similar circumstances, “[0]nly access to the documents themselves would have provided the range and detail of information necessary to fully understand the implications of the police investigation.” Mazzan v. Warden, 116 Nev. 48, 993 P.2d 25, 37 (2000) (holding oral disclosure of identity of another suspect was not sufficient to avoid Brady violation for failing to produce police investigatory reports); see also Wilson v. State, - So.2d -, -, 2002 WL 732110 (Ala.Crim.App.2002) (finding Brady violation despite defendant’s knowledge of witnesses’ identities, where withheld police report gave details of their testimony in the absence of which the defendant would have had “no reason to expend the time or resources to locate them”). Because Harrington did not have the essential details contained in the withheld police reports, we hold the evidence was suppressed.

B. Exculpatory nature of the evidence. To prove a Brady violation, the defendant must show the undisclosed evidence was favorable to his defense. See Romeo, 542 N.W.2d at 551. Here, Harrington steadfastly claimed he did not commit the murder. Obviously, evidence that someone else killed Schweer would be favorable to this defense. The police reports, documenting an individual with a shotgun and a dog caught trying to break into a truck late at night just days before the shooting, would provide abundant material for defense counsel to argue that Gates had the opportunity and motive to commit the crime, thereby creating reasonable doubt that Harrington was the perpetrator. Harrington has proved the second element of a Brady violation.

C. Materiality. The suppression of favorable evidence is not a denial of due process unless the evidence is “material to the issue of guilt.” Id. Evidence is material when “ ‘there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.’ ” Cornell, 430 N.W.2d at 386 (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985)). This test does not require the defendant to prove disclosure of the evidence “would have resulted in his acquittal.” Romeo, 542 N.W.2d at 551. As the United States Supreme Court has recently explained:

[T]he materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions. Rather, the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”

Strickler, 527 U.S. at 290, 119 S.Ct. at 1952, 144 L.Ed.2d at 307 (quoting Kyles, 514 U.S. at 435, 115 S.Ct. at 1566, 131 L.Ed.2d at 506); accord State v. Tangie, 616 N.W.2d 564, 572 (Iowa 2000). In deciding whether our confidence in the verdict is undermined, we consider “the totality of the circumstances, including the possible effects of nondisclosure on defense counsel’s trial preparation.” Cornell, 430 N.W.2d at 386.

Upon our de novo review of the record and consideration of the totality of the circumstances, our collective confidence in the soundness of the defendant’s conviction is significantly weakened. Hughes, the primary witness against Harrington, was by all accounts a liar and a perjurer. With the police offering a $5000 reward for information, Hughes named three other individuals as the murderer before finally identifying Harrington as the perpetrator, and then only after the other three men produced alibis.

As questionable as Hughes’ veracity is, it is not the character of the prosecution’s principal witness that undermines our confidence in the defendant’s trial; Hughes’ ability and propensity to lie were well known in 1978. The unreliability of this witness is, however, important groundwork for our analysis because this circumstance makes it even more probable that the jury would have disregarded or at least doubted Hughes’ account of the murder had there been a true alternative suspect. Gates was that alternative. See Kyles, 514 U.S. at 439, 115 S.Ct. at 1568, 131 L.Ed.2d at 509 (“[T]he character of a piece of evidence as favorable will often turn on the context of the existing or potential eviden-tiary record.”).

At the original trial Gates was one of more than a dozen individuals who were considered by the police as the potential culprit. Certainly defense counsel would not have had the time and resources to track down and investigate each of these individuals. But if the defendant had known the additional information contained in the withheld investigatory reports, the defense would surely have focused its efforts on Gates, not only in preparing for trial, but at trial as well. Our conclusion is based on two important points revealed in these reports: (1) Gates’ identification -as the suspicious person seen in the area with a gun and a dog; and (2) Schweer’s contact with Gates, which for the first time provided a concrete link between an alternative suspect and the victim.

The State is hard pressed to argue the defendant’s trial preparation and trial strategy would not have been altered by this additional information. Officers testifying at the second PCR hearing admitted the police considered Gates to be “the prime suspect” based on their investigation, an investigation unknown to Harrington at the time of his criminal trial. It is fair to conclude that had Harrington’s counsel been provided with this information, he would have zeroed in on Gates in his trial preparation and at trial, just as the police had zeroed in on Gates during their investigation. Harrington’s attorney could have used Gates as the centerpiece of a consistent theme that the State was prosecuting the wrong person.

Independent witnesses placed Gates at the scene of the crime in the days before the murder. Independent witnesses saw him with a shotgun and a dog. The victim himself interrupted a person resembling Gates breaking into a truck only two nights before the victim was shot to death in the car lot. In contrast, Harrington was identified as the murderer by a confessed liar, whose testimony was corroborated only by two particles of gunpowder found on Harrington’s coat several weeks after the murder and the now-recanted testimony of the witness’s teenage cohorts. The murder weapon was never found and no one has ever connected Harrington with the dog prints found at the murder scene, even though the police from the beginning had focused their investigation on finding “a man with a dog.”

Given this evidence, a jury might very well have a reasonable doubt that Harrington shot Schweer. That is all that is required to establish the materiality of the undisclosed evidence. See Lay v. State, 116 Nev. 1185, 14 P.3d 1256, 1263 (2000) (stating “specific evidence of the existence of another shooter” was potentially material because the defense “might develop reasonable doubt as to whether [the defendant] was the actual killer”). We do not think Harrington had to show, as the State argues, that the police reports would have “led to evidence that someone else committed [the] crime.” It was incumbent on the State to prove Harrington’s guilt beyond a reasonable doubt; it was not Harrington’s responsibility to prove that someone else murdered Schweer. Therefore, if the withheld evidence would create such a doubt, it is material even if it would not convince the jury beyond a reasonable doubt that Gates was the killer.

Under the circumstances presented by the record before us, we cannot be confident that the result of Harrington’s murder trial would have been the same had the exculpatory information been made available to him. We hold, therefore, that Harrington’s due process right to a fair trial was violated by the State’s failure to produce the police reports documenting their investigation of an alternative suspect in Schweer’s murder. See Mazzan, 993 P.2d at 74-75 (finding Brady violation where withheld “police reports provided support for [the defendant’s] defense that someone else murdered” the victim); Davis v. Commonwealth, 25 Va.App. 588, 491 S.E.2d 288, 293 (1997) (holding prosecution’s failure to disclose information of other African-American females in vicinity of drug sale constituted a Brady violation). Accordingly, we reverse the trial court’s contrary ruling, and remand this matter for entry of an order vacating Harrington’s conviction and granting him a new trial.

REVERSED AND REMANDED.

All justices concur except CADY, J., who dissents, and LARSON, J., who takes no part.

CADY, Justice,

(dissenting).

I respectfully dissent. Harrington’s due process claim is not based on his pretrial lack of knowledge of a potential suspect who had been seen walking a dog and carrying a shotgun near the railroad tracks by the car dealership a few days prior to the murder. Furthermore, Harrington’s claim is not that he did not have knowledge that dog prints were observed at the murder scene. If these were his claims, I would have no disagreement with the majority. Instead, his claim is that the police failed to turn over the written reports of their investigation into the potential suspect. Although suppression by the police of potentially exculpatory information can justify a new trial, it does not in this case because Harrington clearly knew enough about the information independent of the contents of the suppressed police reports to conduct his own investigation and determine its value as a defense.

I am outraged that the police, apparently, failed to turn over the questioned reports. This was a clear violation of Brady. However, due process does not require a new trial unless the suppressed reports would have reasonably altered the outcome of the trial. Although the passage of time, as well as the death of the defense attorney, has cast a cloud of vagueness over much of the trial proceedings, it is undisputed that Harrington and his attorney knew enough about the information contained in the suppressed police reports to examine witnesses at trial about the matter. Moreover, this information was so sensational and so exculpatory that Harrington’s counsel surely would have earnestly pursued the matter independent of any police reports and then formulated a defense around it if it had been warranted. Consequently, I am unable to conclude that the reports would have altered anything at the original trial.

The majority cites two decisions to support its conclusion that the suppression of the reports denied Harrington the essential facts to structure a defense around the suppressed reports. See Mazzan, 993 P.2d at 37; Wilson, 2002 WL 732110, — So.2d at -. However, in Mazzan the actual police reports were essential to understanding and appreciating the implications of the information. Similarly, in Wilson defense counsel would have had no reason to “expend the time or resources” to locate the witness unless he would have known about the details of their testimony contained in the suppressed reports. In this case, however, there is no dispute that Harrington and his counsel had been made aware of the eerie, suspicious circumstances mentioned in the suppressed reports. Moreover, police did provide defense counsel with a report identifying the potential suspect by name, together with a host of names and addresses of neighbors who had seen the suspicious person. The suppressed police reports were not necessary to understand the significance of this known information or to prod any competent attorney to investigate every aspect of the information.

I believe the majority has attached too much significance to the suppression of the reports, and has elevated the circumstances implicating Gates as the murderer into a sensationalized claim that seemingly vindicates Harrington today, yet was known and rejected by police and Harrington’s own defense counsel twenty-five years ago. The majority exalts the claim far beyond the significance anyone involved in the case gave it twenty-five years ago, including Harrington’s own defense counsel, whose competency was not questioned in this proceeding. The majority now sets aside a twenty-five year old jury verdict and places the State in the difficult position of retrying this case after the passage of two and one-half decades because of a misdeed by the police which, while disconcerting, did not result in prejudice to Harrington. I would conclude the Brady violation is not cognizable in this postconviction relief proceeding. I would otherwise affirm the district court ruling.

      . Harrington’s motion did not contain a proof of service. See Iowa R. Civ. P. 1.442(7) (requiring certificate of service on all papers required or permitted to be served or filed). The State does not complain about the sufficiency of the defendant's rule 1.904(2) motion, however, so we do not consider the absence of a certificate of service in determining the timeliness of this appeal.

      . The police determined the shell was manufactured prior to 1966, some twelve years before the crime.

      . Hughes’ status as an accomplice was disputed at the time of Harrington’s murder trial. See State v. Harrington, 284 N.W.2d 244, 248 (Iowa 1979) (stating court had "serious doubts whether Hughes was an accomplice”). Years later, however, when Harrington's claim for habeas corpus relief was heard in federal court, evidence had come to light that Hughes had been charged with a crime— conspiracy to steal an automobile — stemming from the events on the night of the murder. Harrington v. Nix, 983 F.2d 872, 875 (8th Cir.1993).

      . The murder weapon itself was never found. Additionally, even though plaster casts were made of footprints found at the murder scene, the police did not compare these casts to Harrington's feet.

      . In our decision on Harrington's direct appeal, we stated that Lee “saw the defendant in his car with another person, waiting for Hughes” when she walked Hughes to the door sometime “after midnight in July of 1977.” Harrington, 284 N.W.2d at 249. A review of the trial transcript reveals, however, that Lee testified there were two persons waiting in the car for Hughes, but she could not see who these individuals were.

      . This testing evidence was introduced through the testimony of Dr. Lawrence Far-well, who specializes in cognitive psychophy-siology. Dr. Farwell measures certain patterns of brain activity (the P300 wave) to determine whether the person being tested recognizes or does not recognize offered information. This analysis basically "provide[s] information about what the person has stored in his brain.” According to Dr. Farwell, his testing of Harrington established that Harrington's brain did not contain information about Schweer’s murder. On the other hand, Dr. Farwell testified, testing did confirm that Harrington’s brain contained information consistent with his alibi.

      . Harrington asserts in his motion for limited remand that if this matter were remanded, he would present the testimony of the remaining two prosecution witnesses who had rebutted his alibi, Linda Lee and Roderick Jones. He claims these witnesses will also recant their trial testimony placing Harrington with Hughes on the night of the murder.

      . Ann Danaher, who worked as a barber at the Iowa State Penitentiary in 1994, became acquainted with Harrington’s case after striking up a conversation with Harrington’s family in the parking lot of the penitentiary. Ms. Danaher worked for five years gathering information and talking to persons connected with the Schweer murder investigation and Harrington's prosecution in an effort to assist Harrington’s family in proving his innocence.

      . The same officer admitted at Harrington’s second PCR hearing in.2000 that Gates was a suspect within a couple of days of the murder.

      . At Harrington's sentencing he stated:
      I just want you to know that no matter what happens, I know I’m innocent, and as long as, you know, I feel that inside, then I’m going to keep on fighting because I know I can’t see myself locked up for the rest of my life for something I didn't do. .... I feel like I was judged by the color of my skin and not the content of my character, and I'll always feel that way until I get, you know, the kind of verdict the testimony shows, and that’s innocent or not guilty as they would say in the courtroom.