State v. Dowell

• Decision Date: 17 September 1980
• Docket Number: No. 62727,62727
• Citation: 297 N.W.2d 93
• Parties: STATE of Iowa, Appellee, v. David James DOWELL, Appellant.
• Court: Iowa Supreme Court

Page 93

297 N.W.2d 93

STATE of Iowa, Appellee, v. David James DOWELL, Appellant.

No. 62727.

Supreme Court of Iowa.

Sept. 17, 1980.

Michael J. Schilling, Burlington, for appellant.

Thomas J. Miller, Atty. Gen., Shirley Steffe, Asst. Atty. Gen., and Harold R. Shortenhaus, Asst. Des Moines County Atty., for appellee.

Considered en banc.

McCORMICK, Justice.

The question here is whether a person arrested for an alleged parole violation has a right to have the proceedings against him dismissed with prejudice when the arresting officer does not take him "before a magistrate without unnecessary delay for an initial appearance" as required by § 908.2, The Code. We granted discretionary review of a magistrate's order overruling defendant David James Dowell's motion to dismiss alleging such a right. We affirm.

The relevant facts are undisputed. An information charging defendant with parole violation for changing his address without notifying his parole officer was filed June 2, 1978, and a warrant was issued. Defendant was arrested on Tuesday, October 31, 1978, and incarcerated in the Des Moines county jail at approximately 7:30 p. m. that date. On the following day, November 1, he was taken to the hospital at approximately 3:30 p. m. and was returned to jail an hour later. He was not taken before a magistrate until approximately 3:00 p. m. on November 2, 1978, almost 44 hours after his original incarceration. A magistrate had been available during the regular working hours on November 1 and 2.

Two parole officers were present at defendant's initial appearance before the magistrate on November 2. On that occasion the magistrate allowed them to amend the information to add allegations of three additional parole violations, one accusing defendant of leaving the state without permission, and the other two accusing him of committing criminal law violations. The magistrate furnished defendant with a copy of the information as amended and advised him of his rights. The public defender was appointed to represent him, and the matter was continued until 9:00 a. m. the next day. When that time came, defendant filed his motion to dismiss the information based on the alleged violation of section 908.2 in failing to bring him before the magistrate for his initial appearance without unnecessary delay. After hearing, the magistrate found the delay was unnecessary within the meaning of section 908.2 but held dismissal with prejudice was not the right remedy and therefore overruled the motion. We subsequently granted defendant's application for discretionary review.

Defendant makes the same contentions here that he did before the magistrate. In resistance, the State asserts section 908.2 was not violated but that, if it was, the magistrate was correct in refusing to dismiss the information with prejudice.

I. Whether section 908.2 was violated. Code chapter 908 is a legislative response to Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). It establishes procedures for parole revocation which are based on those provided in chapter 804 for the arrest and disposition of accused persons. J. Yeager and R. Carlson, 4 Iowa Practice: Criminal Law and Procedure § 1751 (1979). In Morrissey, the Supreme Court recognized two important stages in the typical process of parole revocation: "The first stage occurs when the parolee is arrested and detained, usually at the direction of his parole officer. The second occurs when parole is formally revoked." 408 U.S. at 485, 92 S.Ct. at 2602, 33 L.Ed.2d at 496.

Section 908.2 relates to the first stage. In relevant part it provides: "An officer making an arrest of an alleged parole violator shall take the arrested person before a magistrate without unnecessary delay for an initial appearance." The Supreme Court in Morrissey held that a probable cause determination should be made in the first stage of the proceeding. The Court reasoned as follows:

There is typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked. Additionally, it may be that the parolee is arrested at a place distant from the state institution, to which he may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.

(emphasis supplied). 408 U.S. at 485, 92 S.Ct. at 2602, 33 L.Ed.2d at 496.

The requirement of section 908.2 that the initial appearance before a magistrate occur "without unnecessary delay" implements the due process requirement that the probable cause inquiry be made "as promptly as convenient after arrest." However, nothing in chapter 908 defines "unnecessary delay."

The term "unnecessary delay" is defined in Iowa R.Crim.P. 1(2)(c) as "any unexcused delay longer than twenty-four hours, and consists of a shorter period whenever a magistrate is accessible and available." This definition is applicable to indictable offense procedures. Iowa R.Crim.P. 1(1). As such, it fixes the time limit for the initial appearance before a committing magistrate of a person arrested for an indictable offense. Rule 2(1) provides in part: "An officer making an arrest ... shall take the arrested person without unnecessary delay before a committing magistrate as provided by law."

The State argues that the definition in rule 1(2)(c) is inapplicable under section 908.2 because not expressly referred to in that section. Because the section does refer to rule 26, the State asserts the legislature would also have mentioned rule 1(2)(c) if it intended the definition to be applicable. We do not agree. Because the parole revocation procedure is modeled on the preconviction procedure, it is reasonable to believe the legislature intended the definition of "unnecessary delay" in indictable offense proceedings to apply in parole revocation proceedings. The language is strikingly similar in each situation. Use of "unnecessary delay" as a term of art implies consistency of meaning, and the purpose of the procedure in each situation is to require an early determination of probable cause for detaining the accused person on the charge.

Applicability of the definition is also indicated by the fact the rule and statute were adopted by the legislature at the same time. See 1976 Session, 66th G.A., ch. 1245(3), § 802; id. ch. 1245(2), § 1301, rule 1 as amended by 1977 Session, 67th G.A., ch. 153, § 2. The rule that statutes relating to the same subject matter are to be construed together has particular force when they were passed in the same legislative session. State v. Schmitt, 290 N.W.2d 24, 26 (Iowa 1980) (holding the definition of "arrest" in section 804.5 applies to the term in Iowa R.Crim.P. 27(2)(a)).

Upon this reasoning, we hold that the definition of "unnecessary delay" in rule 1(2)(c) applies to the same term in section 908.2.

Because the delay in the present case was 44 hours and no excuse was shown, the magistrate was correct in holding that defendant's right to be taken before a magistrate without unnecessary delay was violated.

II. Whether the revocation proceeding should have been dismissed with prejudice. Defendant contends the violation of section 908.2 requires that the parole revocation proceeding be dismissed with prejudice, relying on an alleged analogy to violations of an accused's rights to a speedy trial assured under U.S.Const. amend. VI, Iowa Const. art. I, § 10, and Iowa R.Crim.P. 27(2). However the situation is not analogous.

Denial of the Federal Constitutional right to speedy trial does require dismissal with prejudice under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). However, even a denial of constitutional preliminary hearing rights does not void a subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54, 68 (1975); State v. Henderson, 268 N.W.2d 173, 176 (Iowa 1978). Barker concerned a defect in proceedings following the probable cause stage. In contrast, Gerstein dealt with a defect at that stage. Because the violation in the present case occurred at the probable cause stage, this case is closer to Gerstein than to Barker. We hold that dismissal with prejudice is not required by analogy to Barker. In so holding, we do not suggest that the violation of section 908.2 was of constitutional magnitude.

Nor is the case analogous to State v. Johnson, 217 N.W.2d 609 (Iowa 1974), where the court held a denial of speedy trial rights under the statutory predecessor of rule 27(2) required dismissal with prejudice. Rather, because the present violation occurred in the probable cause stage of the revocation proceeding, it is analogous to a violation of statutory preliminary hearing rights. When neither statute nor rule provides a different sanction, the remedy for illegal detention based on a statutory violation in that stage of a criminal proceeding is limited to habeas corpus relief. State v. Rouse, 290 N.W.2d 911, 912-13 (Iowa 1980).

Moreover, we have held that Johnson does not preclude the dismissal without prejudice of an aggravated misdemeanor or felony charge when the State obtains the dismissal after a good-faith failure to comply with its duty under Iowa R.Crim.P. 2(1) to take the arrested person before a committing magistrate without unnecessary delay. State v. Hill, 286 N.W.2d 32 (Iowa 1979). We hold that dismissal with prejudice of a parole revocation proceeding is not required by analogy to a denial of speedy trial rights under rule 27(2).

Different remedies apply for violations at the different stages of the proceeding. A violation in the arrest and probable cause stage affects the legality of detention of the accused to answer the charge but has no necessary effect on its...