(dissenting)
I respectfully dissent.
The pretrial conference order required that all motions be served on or before April 1, 1985. Defendant filed his alibi defense on April 9, 1985, which violated Iowa R.Crim.P. 10(ll)(a) because it was *731filed after April 1. The trial court, exercising its discretion, did not find that a good cause for the belated filing was shown. Defendant bears the burden of proof on appeal to show the trial court abused its discretion. Our standard of review is not to substitute our judgment as if we were sitting as the trial judge, as I think the majority has done in this instance; but rather, our review is to find if the trial judge’s discretion, regardless of whether we would have similarly ruled or not, was abused. See State v. Christensen, 323 N.W.2d 219, 222 (Iowa 1982). The trial judge certainly did not abuse his discretion.
Defendant offered no valid reason as to why the April 1 deadline was not met. At trial, defense counsel explained that the notice of alibi was not filed until April 9 because he had not been given the names of the witnesses by defendant’s parents until April 8. Defense counsel also said that he met with defendant’s parents on April 1 to discuss the possibility of alibi witnesses. Even though defense counsel may not have known about the witnesses to establish the defense until April 8, defendant did not substantiate his claim that he was unable to locate the nine listed witnesses who constituted family and friends before April 9. All of the nine witnesses on defendant’s list had Des Moines addresses.
The trial court, apparently concerned about the amount of time the State had to take the depositions of these nine witnesses and the State’s ability to adequately prepare for trial with such information from nine witnesses, found no showing was made that this was a situation beyond defendant’s control. In determining that no valid reason was offered to explain defendant’s failure to apprise his counsel of this defense, the trial court must have believed it was defendant’s and his family’s fault for not giving counsel the names sooner. The trial court did not accept defendant’s argument that he could not locate the nine witnesses, who supposedly had dinner with defendant during the crime, because he was in jail. See State v. Rourick, 245 Iowa 319, 324, 60 N.W.2d 529, 531 (1953) (defendant’s filing of an untimely alibi notice precluded him from having witnesses testify at trial that he was home when the crime occurred). The trial court noted that defendant knew each of these witnesses. No showing was made that defendant could not communicate with others outside of the jail, and defendant probably would normally have told his counsel about his alibi immediately after the incident rather than at a later time.
Given this evidence in the record, I cannot find the trial court abused its discretion. Therefore, I would affirm the trial court’s decision.
HAYDEN, J., joins this dissent.