Ortiz v. State , 124 Idaho 67 ( 1993 )

856 P.2d 104 (1993) 124 Idaho 67

Gustavo ORTIZ, Petitioner-Appellant,
v.
STATE of Idaho, Respondent.

No. 20070.

Court of Appeals of Idaho.

July 1, 1993.

Ismael Chavez, Caldwell, for appellant.

Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., for respondent.

PER CURIAM.

Gustavo Ortiz appeals from the summary dismissal of his petition for post-conviction relief alleging ineffective assistance of counsel. We vacate the dismissal order and remand for consideration of Ortiz's request for court-appointed counsel which should have been determined prior to disposing of the post-conviction petition.

When he pled guilty in 1990 to sexual abuse of a child, Ortiz was represented by the public defender's office. He was convicted and sentenced to the custody of the Board of Correction for a term of two to eight years. No direct appeal from his conviction and sentence was taken, and he has been incarcerated since the date of his conviction. In his post-conviction petition, Ortiz enumerated how he had been denied the effective assistance of counsel, and he included a request for court-appointed counsel to assist him in the post-conviction proceeding. Ortiz also filed a separate motion and affidavit of indigency for counsel to be appointed, citing I.C.R. 44 as the basis for his right to counsel.

Idaho Code § 19-4904 provides that a petitioner seeking post-conviction relief is entitled to court-appointed counsel if he has no means to pay for counsel. Here, Ortiz made the required showing of indigency in support of his motion to appoint counsel, although he did not rely on I.C. § 19-4904; but the district court did not rule on his motion.

The district court ordered a conditional dismissal of Ortiz's petition on May 18, 1992, and entered its summary order of dismissal without ever addressing Ortiz's request for a court-appointed attorney. Accordingly, our review of the merits of the dismissal of the post-conviction petition must be forestalled. Henderson v. State, 123 Idaho 138, 844 P.2d 1388 (Ct.App.1992). We vacate the order of dismissal of the petition for post-conviction relief and remand to the district court for action in accordance with this opinion.