STATE OF IOWA, Plaintiff-Appellee, vs. ROBERT JOSE FOWLER-ORTIZ, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-436 / 06-1934
Filed August 22, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT JOSE FOWLER-ORTIZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bruce B.
Zager, Judge.
Robert Jose Fowler-Ortiz appeals from a supplemental order amending a
sentence
previously
entered.
SUPPLEMENTAL
ORDER
VACATED;
SENTENCE VACATED; AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant
County Attorney, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
2
EISENHAUER, J.
Robert Jose Fowler-Ortiz appeals from a supplemental order amending a
sentence previously entered.
He contends the court improperly modified the
sentence in a supplemental order. He also contends he was denied due process
when the new sentence was entered without a hearing. We review his claims for
correction of errors at law. Iowa R. App. P. 6.4.
Fowler-Ortiz pled guilty to third-degree sexual abuse in violation of Iowa
Code section 709.4 (2005) on February 17, 2006 and was immediately
sentenced to a term of imprisonment not to exceed ten years. The sentence was
suspended and Fowler-Ortiz was placed on supervised probation for five years.
Approximately nine months later, the district court determined Fowler-Ortiz’s
sentence did not comply with Iowa Code section 903B.1 1 .
It entered a
supplemental order amending the judgment and sentence to provide that after
Fowler-Ortiz had completed his sentence, “Pursuant to Iowa Code Section
903B.1 the Defendant is sentenced to a special sentence which commits him into
the custody of the Iowa Department of Corrections for the rest of his life, with
eligibility for parole as provided in chapter 906.”
Fowler-Ortiz argues any error in his sentencing could not be corrected by
a supplemental order because the order was in the nature of a nunc pro tunc
order. Such orders are available only to correct clerical errors, not an error in
judicial thinking, a judicial conclusion, or a mistake of law. See State v. Naujoks,
637 N.W.2d 101, 113 (Iowa 2001). Fowler-Ortiz also argues the district court
1
Iowa Code section 903B.1 became effective on July 1, 2005
3
denied him the right to procedural due process by entering a new sentencing
order without providing him the opportunity to be heard.
We address Fowler-Otiz’s second argument first.
Our supreme court
requires a record establishing that the court has afforded an opportunity for the
defendant to speak regarding punishment. See State v. Craig, 562 N.W.2d 633,
637 (Iowa 1997). However, this requirement is not applied to all sentencing
proceedings. In State v. Cooley, 691 N.W.2d 737, 741 (Iowa Ct. App. 2004), we
held that under the Iowa Rules of Criminal Procedure, a defendant’s presence is
not required when three conditions were met. First, the district court is correcting
an existing sentence rather than imposing a new sentence. Id. Second, the
disposition would not be aided by the defendant’s presence.
Id.
Third, the
modification does not make the sentence more onerous. Id. In the present case,
the third condition was obviously not met. By entering the supplemental order,
Folwer-Ortiz was sentenced to a lifetime parole in addition to the suspended
sentence he was subject to under the original sentence.
The modification
therefore makes the sentence more onerous. We conclude Fowler-Ortiz should
have been before the court when it considered imposition of the lifetime parole.
The supplemental order is vacated.
We do not need to discuss the issue
whether the supplemental order is a proper way to correct the error in the original
sentence.
SUPPLEMENTAL ORDER VACATED; SENTENCE VACATED; AND
REMANDED FOR RESENTENCING.
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