State v. West, 66320

• Decision Date: 16 June 1982
• Docket Number: No. 66320,66320
• Citation: 320 N.W.2d 570
• Parties: STATE of Iowa, Plaintiff, v. Frank R. WEST, Defendant. James L. GARDNER, et al., Appellants, v. Walt CHAMBERLAIN, et al., Appellees.
• Court: Iowa Supreme Court

Page 570

320 N.W.2d 570

STATE of Iowa, Plaintiff, v. Frank R. WEST, Defendant.

James L. GARDNER, et al., Appellants, v. Walt CHAMBERLAIN, et al., Appellees.

No. 66320.

Supreme Court of Iowa.

June 16, 1982.

John R. Leed, Oakland, and Milton L. Hanson, Avoca, for appellants.

James F. Fowler and Darrell Goodhue of Wilson, Goodhue & Fowler, Indianola, and Robert D. Nelson of Rasmussen & Nelson, Exira, for appellees.

Considered by REYNOLDSON, C. J., and HARRIS, ALLBEE, McGIVERIN, and SCHULTZ, JJ.

SCHULTZ, Justice.

Appellants appeal from a sentencing order approving a plan of restitution by defendant, Frank R. West. The plan provided for distribution of the restitution fund among appellees, twenty-eight victims of the criminal offense. Appellants, also claiming to be victims of West's criminal activity, allege that the district court incorrectly denied their claims to share in the distribution of the restitution fund. We treat the appeal as a petition for writ of certiorari and deny the writ.

This case stems from the insolvency and subsequent bankruptcy on January 7, 1975, of American Beef Packers, Inc. (hereinafter ABP). During the period of insolvency preceding January 7, certain individuals did not receive payment for cattle they delivered to ABP. Thirty grand jury indictments, representing thirty cattle producers who did not receive payment for cattle sold to ABP on January 6, 1975, were handed down charging West with conspiracy and false pretenses. The Story District Court dismissed the indictments, and we reversed and reinstated them in State v. West, 252 N.W.2d 457 (Iowa), cert. denied, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128 (1977).

Because of difficulty in obtaining extradition of certain witnesses, the indictments were subsequently dismissed without prejudice. On December 28, 1977, four days before the effective date of the revised Iowa Criminal Code, the Pottawattamie County Attorney filed thirty separate trial informations, representing the same thirty cattle producers, charging West with obtaining cattle by means of false pretenses in violation of section 713.1, The Code 1975.

Pursuant to a plea bargaining agreement, West appeared before a district associate judge on November 7, 1979. The record of the proceeding reveals the agreement reached between the State and West to be as follows:

DAVID RICHTER [Assistant County Attorney]: ... On behalf of the State of Iowa, it is the understanding by myself that the plea bargain is as follows: (1) That the Case 2112-C would be moved from the venue of Avoca to the Pottawattamie County Courthouse in Council Bluffs. And that the defendant will waive venue and ask that the Court take care of this matter here in Council Bluffs rather than Avoca. (2) That we will file an amendment to the True Information which has previously been filed herein. Such amendment has been approved this morning. Wherein the original charge of 713.1 of the 1975 Code is amended in the violation now stated is 713.2(2)a. That the defendant will enter a not guilty plea; however, that he will stipulate to the facts as contained in the original Information filed in Case Number 2112-C. Said stipulation to those facts contained shall be for the purpose of this hearing only and to be used specifically for no other purpose whatsoever. That the Court will find the defendant guilty. That the State of Iowa will recommend a fine of $500 and one year probation. And that the State of Iowa will recommend that the Court ask for $100,000 to be paid by Mr. West as restitution in this matter. That's my understanding of the plea bargain agreement, Your Honor.

THE COURT: Counsel.

MR. LINN [Defense Counsel]: That's also my understanding, Your Honor, with one addition. That is the State of Iowa through Attorney General or any other officer will not take any civil action against Mr. West because of this plea or because of any of the transactions herein stipulated to.

MR. SWANSON [Assistant Attorney General]: On behalf of the State, I so represent that.

THE COURT: All right.

MR. LINN: Or further criminal action too.

MR. SWANSON: Also.

THE COURT: Now, are there other criminal matters currently pending?

MR. RICHTER: As part of this agreement, Your Honor, it's going to be the recommendation of the County Attorney and the Attorney General that the remaining twenty-nine counts be dismissed upon the running of appeal day. And we are willing to be bound by that in the event Mr. West files no appeal of what happens here today. The State of Iowa will dismiss the remaining twenty-nine counts.

The amended information, which had been approved earlier by a district judge, charged West with the criminal offense of concealment of material facts, in violation of section 713.24(2)(a), The Code 1975, between December 10, 1974, and January 7, 1975. The charge pertained only to West's activities concerning one victim, one of the appellees.

The court found West guilty of violating section 713.24(2)(a), fined him $500 plus costs, and placed him on probation for a period of one year, on the condition that he make restitution payment in the amount of $100,000. The $100,000 restitution was promptly paid. The plan of restitution provided for distribution of the fund pursuant to the direction of the attorney general. The attorney general submitted a detailed distribution arrangement identifying as victims of West's criminal offense, and thus as recipients of the restitution fund, the thirty cattle producers represented in the original indictments and subsequent trial information who had sold cattle to ABP on January 6, 1975.

Other cattle producers who had not received payment for cattle sold to ABP on other dates between December 10, 1974, and January 7, 1975, heard about the restitution plan and submitted formal claims to share in the restitution fund. The court scheduled a hearing on the claims and caused notice to be published advising any additional claimants to submit verified claims prior to the hearing. Following the hearing, the court filed an order of restitution. The order noted that two of the thirty cattle producers included in the attorney general's distribution arrangement had been paid in full and provided that the $100,000 fund be divided on a pro rata basis among the remaining twenty-eight such producers. Appellants' claims to share in the restitution fund were denied, and they appealed. They contend the district court wrongly denied their claims. Prior to reaching the merits of this issue, however, we must resolve a threshold jurisdictional issue.

I. Jurisdiction. Appellees filed a motion to dismiss the appeal, alleging that this court lacks jurisdiction. They claim the right to appeal in criminal and civil cases is statutory and that chapter 814, The Code, does not provide authority for this appeal. Appellees also claim appellants lack standing to appeal because they were not collectively or individually parties to the criminal proceeding that gave rise to this controversy.

Appellants do not address these issues in their brief. They ask us to treat this matter as an action for writ of certiorari under Iowa R.App.P. 304. We take appellants' failure to address the issues concerning the propriety of their appeal as a concession that certiorari is the only means by which we may review the district court's denial of their claims to share in the restitution fund. We will therefore examine appellants' claims to determine whether review is proper under rule 304.

Certiorari lies when an inferior court is alleged to have exceeded its jurisdiction or to have acted illegally. Hadjis v. District Court, 275 N.W.2d 763, 765 (Iowa 1979). When an appeal has been taken improperly because no right of appeal exists, we may treat the application for appeal as a petition for writ of certiorari. Iowa R.App.P. 304; e.g., In re Marriage of Welsher, 274 N.W.2d 369, 371 (Iowa 1979).

In this case, appellants contend the district court exceeded its jurisdiction in approving the plan of restitution and acted illegally in excluding them from the class of persons entitled to share in the restitution fund. Certiorari is thus the appropriate means for seeking review of the district court's action. Appellees, however, contend that appellants lack standing to obtain certiorari under rule 304. We disagree.

Certiorari, which is an extraordinary remedy, is available to all persons who show a substantial interest in the activity challenged. Hohl v. Board of Education, 250 Iowa 502, 509, 94 N.W.2d 787, 791 (1959). Generally, only a party to an action may obtain the writ. An exception exists, however, when the public is concerned with the subject matter of the action, in which case anyone interested may petition. Id. In order for persons who are not parties to assert a claim, they must prove that they have been injured in a special manner, different from that of the public generally. Williamson v. Kelley, 271 N.W.2d 727, 729 (Iowa 1978). The tendency is to broaden the scope of the writ when no appeal is permitted and injustice will result unless such relief is granted. Hohl, 250 Iowa at 509, 94 N.W.2d at 791-92.

The question, then, is whether appellants have been injured in a special way, different from that of the public generally. This question clearly must be answered in the affirmative. Appellants claim...