State v. Koeppel

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97 N.W.2d 926 (1959)

STATE of Iowa, Appellant, v. Raymond James KOEPPEL, Appellee.

No. 49714.

Supreme Court of Iowa.

July 24, 1959.

Norman A. Erbe, Atty. Gen., Hugh V. Faulkner, Asst. Atty. Gen., Martin D. Leir, County Atty., and Edward N. Wehr, Asst. County Atty., Davenport, for appellant.

Walter E. Kroeger, Davenport, for appellee.

THORNTON, Justice.

October 16, 1958, a county attorney's information was filed charging defendant with robbery with aggravation in violation of section 711.2 of the 1958 Code of Iowa, I.C.A., the defendant was arraigned on the same day and entered a plea of not guilty. November 4th defendant asked leave to withdraw his plea of not guilty, which leave was granted. Defendant then offered to plead guilty to the lesser and included offense of assault with intent to commit robbery as defined in section 694.7. Over the objection of the assistant county attorney the court accepted such plea and set sentencing for November 14th. November 20th the court sentenced defendant as provided in section 694.7 and suspended the sentence pursuant to section 247.20.

*927 The state appeals from the ruling and judgment of the court accepting the plea to the included offense over the objection of the assistant county attorney on November 4th, which ruling was entered November 20th. We are not favored with a brief and argument on behalf of the defendant.

Frequently we entertain appeals by the state presenting legal questions the determination of which will be an aid and guide to trial courts in the future. See section 793.20 of 1958 Code of Iowa, I.C.A.; State v. Rasmus, Iowa 1958, 90 N.W.2d 429; State v. Haesemeyer, 248 Iowa 154, 79 N.W.2d 755; State v. Hill, 244 Iowa 405, 57 N.W.2d 58, and citations.

The state argues that the trial court has no power to accept a plea to the lesser included offense over the objection of the county attorney. Under the record presented here we think it was error to accept the plea to the lesser offense.

We have before us the abstract of the record and the clerk's transcript. Neither shows any basis for the action of the trial court. The record shows the only fact ascertained by the trial court was that the age of defendant was eighteen at the time of the offense. If there was power to act at all, the action must be based upon sound judicial discretion. An abuse of discretion is reviewable by this court. Where, as here, the court has no knowledge other than the age of the defendant and accepts a plea over the objection of the county attorney we are compelled to hold such action is an abuse of discretion. We have held in civil cases that a court may not act upon its own knowledge or knowledge gained in a previous case. Van Donselaar v. Van Donselaar, Iowa 1958, 87 N.W.2d 311.

As having some bearing see: State v. Powers, 239 Iowa 430, 30 N.W.2d 476; State v. Asbury, 172 Iowa 606, 154 N.W. 915; section 769.26 of the 1958 Code of Iowa, I.C.A.; and State v. English, 242 Iowa 248, 46 N.W.2d 13.

Reversed.

All Justices concur.

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