249 N.W.2d 688 (Iowa 1977), 58918, State v. Jaeger

Docket Nº:58918.
Citation:249 N.W.2d 688
Party Name:STATE of Iowa, Appellee, v. Fredrick Morse JAEGER, Appellant.
Case Date:January 19, 1977
Court:Supreme Court of Iowa

Page 688

249 N.W.2d 688 (Iowa 1977)

STATE of Iowa, Appellee,

v.

Fredrick Morse JAEGER, Appellant.

No. 58918.

Supreme Court of Iowa.

January 19, 1977

Page 689

Lawrence W. Zeringue, Burlington, for appellant.

Richard C. Turner, Atty. Gen., Michael W. Coriden, Asst. Atty. Gen., and Steven S. Hoth, County Atty., for appellee.

Heard by MOORE, C.J., and MASON, LeGRAND, UHLENHOPP and HARRIS, JJ.

MOORE, Chief Justice.

Defendant appeals from his guilty plea conviction of unlawful use of telephone in violation of Code section 714.37 which provides:

'It shall be unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to telephone another and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict injury or physical harm to the person or property of any person. It shall also be unlawful to attempt to extort money or other thing of value from any person, or to otherwise disturb by repeated anonymous telephone calls the peace, quiet or right of privacy of any person at the place where the telephone call or calls were received.'

The questions presented are--(1) Does a plea of guilty entered subsequent to defendant's demurrer waive all alleged constitutional errors in the charging statute?, and (2) Is section 714.37 unconstitutionally vague and overbroad on its face so as to charge no offense?

Defendant first demurred to the County Attorney's Information which charged him with unlawful use of a telephone in violation of Code section 714.37. He alleged the statute was facially both unconstitutionally vague and overbroad. The lower court's well-reasoned holding and order overruled defendant's demurrer. Thereafter defendant, with counsel, voluntarily and understandingly entered a plea of guilty as charged. In response to the court's interrogation defendant admitted he telephoned Lowell Bauer, a Burlington City Councilman, on April 6, 1975, at 2:20 A.M. and stated to him: 'Hello you dumb fucker. What do you think about the children of Viet Nam?' The call was immediately traced as prior similar calls had caused the telephone company to make the necessary attachments to Bauer's telephone.

I. This court has on numerous occasions stated:

'A plea of guilty freely and voluntarily entered in open court is a waiver of trial

Page 690

and defense and a submission without contest. It waives all defenses except that the indictment or information charges no offense, and, of course, the right to challenge the plea itself.'

State v. Everhart, Iowa, 243 N.W.2d 574, 575 (guilty plea waived challenge to venue); Zacek v. Brewer, Iowa, 241 N.W.2d 41, 50; (guilty plea was set aside because involuntary); State v. Sudduth, Iowa, 224 N.W.2d 19, 21 (guilty plea waived error concerning written confession); State v. Horstman, Iowa, 218 N.W.2d 604, 605 (guilty plea waived defendant's claim he was charged under the wrong statute); State v. McGee, Iowa, 211 N.W.2d 267, 268 (defendant foreclosed from complaint as to time lapse between information and plea); State v. Burtlow, Iowa, 210 N.W.2d 438, 439 (Miranda issue waived by guilty plea); State v. Culbert, Iowa, 188 N.W.2d 325, 326 (defendant waived confession issue by...

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