State v. Thomas

208 N.W.2d 902 (1973)

STATE of Iowa, Appellee, v. Fred THOMAS, Appellant.

No. 55553.

Supreme Court of Iowa.

July 3, 1973.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

*903 Frank A. Comito, Des Moines, for appellant.

Considered en banc.

MOORE, Chief Justice.

Defendant has appealed following his plea of guilty to the crime of delivery of a controlled substance in violation of Senate File 1, Section 401, Subsection 1, as amended by Senate File 468, Acts of the Sixty-Fourth General Assembly, now section 204.401(1), The Code, 1973.

At his request defendant was granted a hearing as provided by Section 410, Senate File 468, now section 204.410, The Code, 1973. The trial court found defendant failed to prove his alleged ground (accommodation) for mitigation of punishment.

Defendant assigns errors as follows:

"That Senate File I, Section 410, as amended by Senate File 468, Acts of the 64th General Assembly, is unconstitutional in that it shifts the burden of proof to the defendant to prove by clear and convincing evidence, that the sale of the narcotic was for accommodation and not for profit and thus denies the defendant the right to due process of law as guaranteed to him under the Fourteenth Amendment to the United States Constitution."

The procedural problems raised by the State need not be considered. The issues here raised are decided adversely to defendant by our opinion in State of Iowa v. Vietor, Iowa, 208 N.W.2d 894, filed simultaneously herewith.

We find no reversible error.

Affirmed.

MASON, LeGRAND, REES and HARRIS, JJ., concur.

McCORMICK, RAWLINGS, UHLENHOPP and REYNOLDSON, JJ., dissent.

McCORMICK, Justice (dissenting).

I respectfully dissent for the reasons stated in my dissent in State v. Vietor. I would vacate the sentence and remand for a new hearing under Code § 204.410 in accordance with those views.

RAWLINGS and REYNOLDSON, JJ., join in this dissent.