State v. Hollins, 64879
| Decision Date | 23 September 1981 |
| Docket Number | No. 64879,64879 |
| Citation | 310 N.W.2d 216 |
| Parties | STATE of Iowa, Appellee, v. Clyde HOLLINS, Appellant. |
| Court | Iowa Supreme Court |
Jorge Gomez, Jr. of Gomez, Feuerbach, May & Pries, Davenport, for appellant.
Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and William E. Davis, Scott County Atty., for appellee.
Considered by LeGRAND, P. J., and HARRIS, McCORMICK, ALLBEE, and LARSON, JJ.
In State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974), we interpreted our then-existing recidivism statute, section 747.5, The Code 1973. We held that, in order to invoke the provisions of that statute and impose sentence as such upon an habitual offender, the "first conviction and imposition of sentence must precede the second offense and that both of the prior convictions and impositions of sentence must precede the third conviction." Id. We must now interpret our present recidivism statute, section 902.8, The Code 1981. Noting a change in the statutory language, the trial court correctly held that the provisions of the present recidivism statute are triggered by convictions alone and not by any resulting prior sentences or commitments to prison. The trial court then concluded that two prior convictions which occurred on the same day sufficed as separate prior convictions, resulting in habitual offender status upon this third conviction. We believe this conclusion was error.
Defendant was charged, tried and convicted in Scott County with two unrelated counts of the crime of sexual abuse in the third degree in violation of section 709.4, The Code 1981. He was also alleged to be an habitual offender under section 902.8, The Code. After a jury found him guilty of the two main counts defendant admitted he was the same man who had previously been convicted of two counts of rape in violation of section 698.1, The Code 1975. The earlier convictions, though apparently unrelated, occurred on the same day, September 26, 1976, in Pottawattamie County.
Accordingly, defendant was sentenced as an habitual offender under each of the present convictions in Scott County. Under count I he was sentenced to incarceration of not more than 15 years. Under count II, also pursuant to the recidivism statute, he was sentenced to another term of 15 years. Sentences were ordered to run consecutively. In addition the court ordered that the minimum three year sentences contemplated in the recidivism statute, section 902.8, should also run consecutively.
I. Section 747.5, The Code 1973, which we interpreted in Conley, read as follows:
Whoever has been twice convicted of crime, sentenced, and committed to prison, in this or any other state, or by the United States, or once in this state and once at least in any other state, or by the United States, for terms of not less than three years each shall, upon conviction of a felony committed in this state after the taking effect of this section, be deemed to be a habitual criminal, and shall be punished by imprisonment in the penitentiary for a term of not more than twenty-five years, provided that no greater punishment is otherwise provided by statute, in which case the law creating the greater punishment shall govern. (Emphasis added.)
In considering that statute we said:
Here the statute defines the conditions for its application. In doing so it makes the nature of the disposition of the two prior convictions determinative of their use as predicates for the greater penalty upon a third conviction. The defendant must have been on each prior occasion "convicted of crime, sentenced, and committed to prison ... for (a term) of not less than three years ...." Significantly, the statute emphasizes conviction and disposition of the prior offense. There can be no recidivism until after conviction of crime and imposition of penalty. (Authority.)
Conley, 222 N.W.2d at 502-03. Applying the rule from Conley, in State v. Tillman, 228 N.W.2d 38, 41 (Iowa 1975), we said:
Our statute dictates that each offense must have been complete as to conviction, sentence and commitment to prison before the commission of the next in order that it qualify for application...
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