STATE OF IOWA, Plaintiff-Appellee, vs. CURTIS DUFFIE, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-625 / 05-1914
Filed September 21, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CURTIS DUFFIE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis,
Judge.
Curtis Duffie appeals from the imposition of a fine upon his conviction for
driving while barred.
SENTENCE VACATED AND REMANDED FOR
RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean Pettinger, Assistant Attorney
General, J. Patrick White, County Attorney, and David V. Tiffany, Assistant
County Attorney, for appellee-State.
Considered by Sackett, C.J., and Vaitheswaran, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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SACKETT, C.J.
The defendant-appellant, Curtis Duffie, was convicted of driving while
barred in violation of Iowa Code sections 321.555 and 321.560 (2005), following
a guilty plea. His license had been barred in part because of five convictions for
violations of section 321J.2 (operating while intoxicated) and two convictions for
violations of section 321J.21 (driving while suspended, revoked, or barred).
At the sentencing hearing, defense counsel raised the issue of “what the
minimum fine is in this case and whether the fine is suspendable or not.” The
defense asserted:
It’s our position that because Mr. Duffie is charged with a violation
of [sections] 321.560 and 561, which is the straight driving while
barred statute, that he is subject to the standard aggravated
misdemeanor penalty—minimum penalty of $500 fine. And it’s our
view that that is the minimum fine available to the court in this case,
and it’s also the penalty that we are seeking.
Although part of the basis for the barment is related to an
earlier OWI, we believe that the statute is clear that if it’s a driving
while barred charge, it’s a driving while barred fine, . . .
The State set forth the opposing view:
The dilemma in this case is that if this were what we would
call an ordinary driving while barred, it would be an aggravated
misdemeanor, and it would have a mandatory minimum fine of up
to $500, which could even be suspended. . . . Unfortunately, when
the legislature rewrote section 321J.21 several years ago, they
wrote into that that any suspension, revocation, or bar due to a
violation of this chapter, 321J, is a serious misdemeanor
punishable by a $1000 fine. That’s where the fight comes in
because the bar in this case is due to a violation of chapter 321J,
and therefore, instead of being the aggravated misdemeanor, which
actually would give Mr. Duffie more preferable or favorable
treatment, makes it a serious misdemeanor with a mandatory
$1000 fine. And again, court interpretations of that rewrite have
also indicated that that fine is mandatory, it cannot even be
suspended. And so Mr. Duffie is in the unfortunate position of
being charged with a lesser offense with a greater penalty . . . .
The district court stated:
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It’s my belief that a bar that involves a 321J violation does
fall under the mandatory requirement that the court impose a
nonsuspendable $1000 minimum fine.
But for the statutory
language, I would not be inclined to fine this defendant in that
amount, but I believe that I am bound by the statute.
On appeal, the defendant contends the district court erred in concluding it
could not suspend the fine. Iowa Code section 321J.21 provides, in relevant
part, “In addition to any other penalties, the punishment imposed for a violation of
this subsection shall include assessment of a fine of one thousand dollars.” Iowa
Code sections 901.5 and 907.3 give courts discretion to defer or suspend
sentences except in certain limited circumstances not applicable here. The State
acknowledges our supreme court repeatedly has held that the authority to
suspend a portion or all of a sentence “is negated only when a specific statute
withholds this general sentencing authority.” State v. Klein, 574 N.W.2d 347,
348-49 (Iowa 1998), citing State v. Hildebrand, 280 N.W.2d 393, 397 (Iowa
1979); accord State v. Chana, 476 N.W.2d 39-40 (Iowa 1991).
The legislature “knows how to eliminate sentencing options.”
State v.
Hildebrand, 280 N.W.2d 393, 397 (Iowa 1979). Section 903.1 provides fines
imposed under that section “shall not be suspended by the court.”
E.g., §§
321.218 (“The sentence imposed under this section shall not be suspended by
the court, notwithstanding the provisions of section 907.3 . . . .”); 805.11 (“penalty
is scheduled fine without suspension.”).
limiting language.
Section 321J.21 contains no such
The State’s argument that the legislature’s prohibition of
suspended fines for serious misdemeanors in the general misdemeanor
sentencing provisions of section 903.1 and subsequent reference to “other
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penalties” in section 321J.21 indicates that it did not intend to allow for
suspended fines under section 321J.21 is unpersuasive.
We conclude the district court failed to exercise discretion in imposing the
fine in this case. A reviewing court will vacate a sentence only for an abuse of
discretion or a defect in the sentencing procedure.
N.W.2d 720, 724 (Iowa 2002).
State v. Formaro, 638
Failing to exercise discretion is a defective
sentencing procedure. State v. Wilson, 294 N.W.2d 824, 824-25 (Iowa 1980).
We therefore vacate the defendant’s sentence and remand for resentencing.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Vaitheswaran, J., concurs; Robinson, S.J., dissents.
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ROBINSON, S.J., (dissenting)
I acknowledge the authority to suspend part or all of a sentence “is
negated only when a specific statue withholds this general sentencing authority.”
State v. Hildebrand, 280 N.W.2d 393, 397 (Iowa 1979). The majority concludes
Iowa Code section 321J.21, has no limiting provision. I disagree. The legislature
specifically provided that driving while barred due to a violation of chapter 321J
(OWI) is punishable as a serious misdemeanor. The punishment for a serious
misdemeanor includes a jail sentence up to one year at the court’s discretion and
the imposition of a fine “which fine shall not be suspended.”
903.1(1).
Iowa Code §
Section 321J.21 specifically incorporates the penalties provided in
section 903.1(1) while mandating a fine of $1000.
Thus, the legislature has
limited the court’s sentencing discretion in two ways. First, it has mandated that
the fine be $1,000, thus taking away the court’s discretion to assess an amount
between $250 and $1,500.
Second, it eliminated the court’s discretion to
suspend the fine by incorporating the sentencing limitation of section 903.1(1).
I would affirm.
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