State v. Krivolavy

258 N.W.2d 157 (1977)

STATE of Iowa, Appellee, v. Robert Joseph KRIVOLAVY, Appellant.

No. 60186.

Supreme Court of Iowa.

October 19, 1977.

Dan T. McGrevey, Fort Dodge, for appellant.

Richard C. Turner, Atty. Gen., and William Thatcher, Webster County Atty., for appellee.

Submitted to MOORE, C. J., and MASON, LeGRAND, UHLENHOPP and REYNOLDSON, JJ.

LeGRAND, Justice.

Defendant entered a guilty plea to a charge of embezzlement by agent in violation of § 710.5, The Code, 1975. He was *158 sentenced to serve a term of not more than five years in the penitentiary and fined $3,621.25, the exact amount which he had embezzled. He appeals, asserting only that the sentence imposed was in excess of the maximum provided by statute. We modify the sentence and affirm the judgment.

The sentencing statute for those convicted of violating § 710.5 is § 709.2, which directs that the guilty party "shall be punished by imprisonment in the penitentiary not more than five years, * * * or by fine of not more than one thousand dollars, or by both such fine and imprisonment * * *." The State admits the fine imposed exceeds the statutory maximum.

We have said a sentence in excess of the maximum allowed by statute is void. State v. Wiese, 201 N.W.2d 734, 737 (Iowa 1972); State v. Hopp, 190 N.W.2d 836, 837 (Iowa 1971); State v. Shilinsky, 248 Iowa 596, 602, 81 N.W.2d 444, 448 (1957).

However, where, as here, the sentence is severable and the valid part (penitentiary time) is distinct from the invalid (the fine), we need not disturb the former. See State v. Edwards, 255 Iowa 446, 447, 123 N.W.2d 4-5 (1963).

Under § 793.18, The Code, and Edwards, we may ourselves impose the sentence which the trial court should have. Alternatively, of course, we may remand the case for resentencing.

In the present appeal, we see no purpose in remanding. We can remedy the sentencing defect ourselves by reducing the fine from $3,621.25 to the statutory maximum of $1,000.

We have considered, and now reject, defendant's request that circumstances arising since sentence was pronounced be considered in fixing his punishment.

Defendant's fine is reduced to $1,000. The judgment as thus modified is affirmed.

MODIFIED AND AFFIRMED.