Opinion
No. 3-437 / 02-1549.
Filed June 25, 2003.
Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge.
Schawitsch appeals from the district court's denial of his application for postconviction relief. AFFIRMED.
James Clements, Davenport, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, and Bruce McDonald, County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Michael Schawitsch was convicted of first-degree robbery, first-degree burglary, and unauthorized possession of an offensive weapon. He was sentenced to fifty years in prison. Schawitsch then filed a direct appeal asserting the trial court erred in 1) failing to suppress identification evidence; 2) failing to strike two witnesses; 3) excluding evidence of a computer composite image generated by an eye-witness; 4) overruling a motion for judgment of acquittal; 5) imposing consecutive prison terms; and 6) failing to find Iowa Code section 902.12 (1999) unconstitutional. This court reached the merits of every claim raised, and affirmed Schawitsch's convictions.
Schawitsch then filed a petition for postconviction relief, reasserting five of the six arguments raised on direct appeal. The district court concluded all five claims now asserted "were previously and finally adjudicated by the Iowa Court of Appeals" and granted the State's motion for summary disposition. A postconviction proceeding may not be used as a means to relitigate claims which "were or should have been properly presented on direct appeal." Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). To the extent identical issues were previously raised by Schawitsch and rejected by this court on direct appeal, they were properly dismissed by the district court in this action.
Schawitsch does not contend the claims asserted in this postconviction proceeding are different than those previously asserted on direct appeal. Even if we were to assume the claims now asserted are distinguishable in some discernible respect, Schawitsch has offered no reason for his failure to raise them on direct appeal. Accordingly, the district court correctly dismissed the application in this case. See Iowa Code§ 822.8.