State v. Kirklin, 84-31

• Decision Date: 14 November 1984
• Docket Number: No. 84-31,84-31
• Citation: 357 N.W.2d 310
• Parties: STATE of Iowa, Appellee, v. Earl Leroy KIRKLIN, Appellant.
• Court: Iowa Supreme Court

Page 310

357 N.W.2d 310

STATE of Iowa, Appellee, v. Earl Leroy KIRKLIN, Appellant.

No. 84-31.

Supreme Court of Iowa.

Nov. 14, 1984.

Jon M. Kinnamon, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Valencia Voyd McCown, Mick Greene, Asst. Attys. Gen., and Denver D. Dillard, County Atty., for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, LARSON, SCHULTZ, and CARTER, JJ.

SCHULTZ, Justice.

Defendant Earl Leroy Kirklin was charged by trial information in Linn County with willful injury, a felony, based on events which occurred on July 4, 1982. The information charged the defendant with unjustifiably assaulting a female by stabbing her with a knife, intentionally causing serious injury. On April 8, 1983, the defendant entered an Alford plea of guilty to the lesser included offense, assault with intent to inflict serious injury, an aggravated misdemeanor, in violation of Iowa Code sections 708.1(1) and 708.2(1). On September 26, 1983, defendant was sentenced to imprisonment for an indeterminate term not to exceed two years for the aggravated misdemeanor and was given credit for the time spent in custody prior to sentencing. The court further provided that the sentence "shall not run concurrently with any other sentence of incarceration which may be imposed by this Court in Linn County Criminal Cause 5537-0180."

Defendant appeals from the sentence imposed. He asserts: (1) under Iowa Code section 903.1 a fixed sentence rather than an indeterminate sentence should have been imposed, and (2) under Iowa Code section 901.8 the court lacked authority to order that the sentence not run concurrent to any term of incarceration that may be imposed in pending probation revocation proceedings. We affirm.

I. Defendant was sentenced to an indeterminate term not to exceed two years. When the new Iowa Criminal Code became effective on January 1, 1978, section 903.1 mandated that when a penalty was not provided for in a misdemeanor conviction "the court shall determine the sentence, and shall fix the period of confinement or the amount of fine" within limits, which in the case of an aggravated misdemeanor were "imprisonment not to exceed two years, or a fine not to exceed five thousand dollars, or both." We held that the indeterminate sentence provisions of our law did not apply to aggravated misdemeanors because section 903.1 required the court to determine the length of sentence within the maximum of two years. State v. Wilson, 294 N.W.2d 824, 826 (Iowa 1980).

The defendant's reliance upon Wilson to support his allegation that the indeterminate sentence provisions of the Iowa law are inapplicable in his case is misplaced because of a statutory change in section 903.1. The maximum penalty is still "imprisonment not to exceed two years, or a fine not to exceed five thousand dollars, or both." However, the following addition has been made: "When a judgment of conviction of an aggravated misdemeanor is entered against any person and the court imposes a sentence of confinement for a period of more than one year the term shall be an indeterminate term." 1983 Iowa Acts ch. 183, § 2 (codified at Iowa Code § 903.1(2) (Supp.1983)). Section 3 of chapter 183 provides: "Section 2 of the Act amending section 903.1 of the Code, takes effect July 1, 1983, but also applies retroactively to January 1, 1978." The sentencing in question occurred after July 1, 1983; the act by its own terms is retroactive beyond the date of the commission of the offense in July of 1982. The district court was correct in sentencing defendant to an indeterminate sentence pursuant to the present section 903.1(2). We limit our ruling to matters raised by the defendant at either the trial court level or in his appellate brief.

II. Defendant challenges the portion of the district court's sentence which provides that it would not run concurrently with any term of incarceration which might be imposed in pending probation revocation proceedings. He asserts that a contingent sentence based upon the possible imposition of a sentence in another proceeding is improper. Defendant further contends that the sentencing judge in the other criminal proceeding should determine whether a sentence imposed in that case would run concurrently or consecutively with a sentence imposed in the present case. We conclude that the language used by the district court when referring to the sentence of incarceration "which may be imposed" in the other case is not literally correct because the other sentence had already been imposed. We find no reversible error in the sentence, however.

Defendant had previously been convicted of the felony of burglary in the second degree in Linn County Criminal Cause 5537-0180 and had been sentenced to serve not more than ten years; however, the sentence was suspended and defendant was placed on probation for three years. A presentence report prepared on May 20, 1983, indicated that defendant was still on probation for the earlier offense and that his probation officer was in the process of submitting a report of violation to the court requesting revocation of the earlier probation status. The record does not indicate whether the earlier probation was revoked, but it is apparent that the sentencing...