Cartee v. Brewer

• Decision Date: 17 May 1978
• Docket Number: 61701,Nos. 61656,s. 61656
• Citation: 265 N.W.2d 730
• Parties: Elmer CARTEE, Jr., Appellant, v. Lou V. BREWER et al., Appellee. James HUGHES, Jr., Appellant, v. Roland McCAULEY et al., Appellee.
• Court: Iowa Supreme Court

Page 730

265 N.W.2d 730

Elmer CARTEE, Jr., Appellant, v. Lou V. BREWER et al., Appellee.

James HUGHES, Jr., Appellant, v. Roland McCAULEY et al., Appellee.

Nos. 61656, 61701.

Supreme Court of Iowa.

May 17, 1978.

John P. Roehrick and John C. Wellman, Des Moines, for appellants.

Richard C. Turner, Atty. Gen., Ray Sullins, Asst. Atty. Gen., and Dan Johnston, County Atty., for appellee.

En banc.

HARRIS, Justice.

In separate postconviction suits each petitioner contended § 801.5(3), The Code, supplement 1977, provides they are entitled to be sentenced anew upon their prior criminal convictions. In separate rulings filed in each action the trial courts rejected this contention. Upon petitioners' consolidated appeals we affirm.

On December 12, 1968 petitioner Cartee was convicted of second-degree murder in violation of § 690.3, The Code, 1966. He was thereupon sentenced to an indeterminate term of not to exceed 40 years. His conviction was affirmed in a prior appeal to us. State v. Cartee, 202 N.W.2d 93 (Iowa 1972).

On March 18, 1977 petitioner Hughes was sentenced to an indeterminate term of not to exceed five years for shoplifting in excess of $20 in violation of § 709.1 and § 709.2, The Code, 1977.

Under the new criminal code, which became effective January 1, 1978, second-degree murder carries a maximum sentence of 25 years. § 707.3 and § 902.9, The Code, supplement 1977. Under the new criminal code shoplifting is theft. § 714.1, The Code, supplement 1977. Where the value is between $50 and $100 theft is a serious misdemeanor. § 714.2(4), The Code, supplement 1977. Punishment for a serious misdemeanor is imprisonment not to exceed one year, or a fine not to exceed $1000, or both. § 903.1(2), The Code, supplement 1977.

Hence both petitioners would face substantially shorter sentences if they were to be punished under the new criminal code rather than under the provisions under which they were sentenced. The sole question in this appeal is their contention they are entitled to be sentenced anew under the lesser sentences now provided for their offenses.

I. A general revision of our criminal code became effective January 1, 1978. The Code, supplement 1977. In § 801.5, The Code, supplement 1977, the legislature addressed the question of applicability of the revision to offenses committed before its effective date. Section 801.5 provides in material part:

"1. Except as provided in subsections 2 and 3 of this section, this Act does not apply to offenses committed before its effective date. Prosecutions for offenses committed before the effective date are governed by the prior law, which is continued in effect for that purpose, as if this Act were not in force. For purposes of this section, an offense is committed before the effective date if any of the elements of the offense occurred before that date.

"2. * * * (Provides for cases pending on or commenced after January 1, 1978 involving offenses committed prior to that date.)

"3. Provisions of this Act governing the release or discharge of prisoners, probationers, and parolees shall apply to persons under sentence for offenses committed before the effective date of this Act, except that the minimum or maximum period of their detention or supervision shall in no case be increased, nor shall the provisions of this Act affect the substantive or procedural validity of any judgment of conviction entered before the effective date of this Act, regardless of the fact that appeal time has not run or that an appeal is pending."

The question narrows to whether the language "provisions of this Act governing the release or discharge of prisoners", includes postconviction petitioners serving sentences imposed prior to the effective date of the Act. In urging they are so included petitioners argue § 246.38, The Code, provides a prisoner's discharge date is to be determined by the maximum time he is sentenced to serve. It is suggested the length of sentence helps determine discharge date and hence is "a provision governing discharge" under § 801.5(3).

Upon consideration we adopt the views expressed by the trial court in Webster District Court in its ruling:

"The length and complexity of the phrase, 'Provisions of this Act governing the release or discharge of prisoners, probationers, and parolees shall apply to persons under sentence for offenses committed before the effective date of this Act', invites the reader to concentrate on particular portions of the phrase and distracts the reader from its overall import. However, when the phrase is condensed to its essential operative language, its thrust is clear. Basically, the phrase applies to 'the release or discharge of * * * persons under sentence.' The phrase contemplates that the person to be released or discharged is under a valid sentence, of whatever length, and merely makes the new Code's procedures for release or discharge applicable to that person. (For these procedures, see generally Iowa Code (1977 Supplement), Chapters 901-909, and in particular Chapter 906 and §§ 902.2, 902.6, 902.7, 902.8, 903.3, 907.9, and 907.10.)

"The procedural thrust of the disputed phrase is supported by the remainder of § 801.5(3). There is no language in the section that would permit an inference that it was intended to affect the substance of a previously-rendered judgment and sentence. On the contrary the section specifically states that nothing in the new code shall 'affect the substantive or procedural validity of any judgment of conviction entered before the effective date of this Act.'

"Thus, in the face of the obvious procedural thrust of the plain language of § 801.5(3), the...