STATE OF IOWA, Plaintiff - Appellee, vs. JONATHON DALE CAMPBELL , Defen dant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-919 / 08-0106
Filed December 31, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JONATHON DALE CAMPBELL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mills County, Susan Christensen,
Judge.
A defendant appeals following his conviction for driving while barred.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Martha Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor and Kyle Hanson,
Assistant Attorneys General, Marci Prier, County Attorney, and Eric Hansen,
Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Miller, JJ.
2
VOGEL, P.J.
Jonathon Campbell appeals following his conviction for driving while
barred in violation of Iowa Code sections 321.560 and 321.561 (2007).
He
challenges the sufficiency of the evidence as to whether the Iowa Department of
Transportation (DOT) mailed him notice that he was barred from driving.1 We
review sufficiency of the evidence challenges for correction of errors at law. Iowa
R. App. P. 6.4.
Pursuant to Iowa Code section 321.561, it is unlawful for a habitual
offender to operate a motor vehicle unless they have been granted a temporary
restricted license.
A driver’s knowledge of barment is not an element of an
offense pursuant to sections 321.560 and 321.561. However, our supreme court
has held that where the DOT is required to give notice, failure to prove the DOT
mailed the notice precludes a driver’s conviction for driving while suspended or
barred. State v. Green, 722 N.W.2d 650, 652 (Iowa 2006). Proof that the DOT
actually mailed a notice may be accomplished, for example, by an affidavit of
mailing, a certified mail receipt, or testimony to support its claim of mailing. Id.
In the present case, the State did not introduce any written proof of
mailing.
Thus, we must examine the testimony to determine if there was
evidence the notice was actually mailed. A DOT worker, Eileen Alff, testified to
the DOT’s procedures for mailing notices. She stated that notices are mailed
1
In the alternative, Campbell argues his counsel breached an essential duty by failing to
specify the DOT’s lack of proof of mailing. While we agree that the motion was more
generally geared to the competency and relevancy of the DOT’s witness, Campbell’s
counsel did include in his motion, “[a]nd she does not mail notices.” This followed an
objection made during trial in which counsel raised whether notice was “sent and
received—well, sent.” As such, we address the issue as being marginally preserved,
rather than as an ineffective-assistance-of-counsel claim.
3
from the central office in Ankeny, Iowa. If the notice is returned as undeliverable,
it is noted in that person’s file. As to whether Campbell’s notice was mailed, she
stated that there was a copy in his file and thus, she had no reason to believe it
had not been mailed. See Green, 722 N.W.2d at 652 (“We cannot presume,
based solely on the DOT’s furnishing of a copy of a notice found in its files that
the notice was actually mailed.”). However, she did not have any knowledge of
whether Campbell’s notice was in fact mailed.
The State asserts that the copy of the notice along with Alff’s testimony is
sufficient proof. We disagree. Alff explained the DOT’s procedures for mailing
notices, but there was no evidence that those procedures were followed in this
case. There was no testimony or documentation to show a notice was actually
mailed to Campbell. We conclude that the State failed to prove it mailed a notice
of barment to Campbell.
Thus, we reverse and remand for dismissal of the
charge.
REVERSED AND REMANDED.
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