State v. Moritz, 62991

• Decision Date: 18 June 1980
• Docket Number: No. 62991,62991
• Citation: 293 N.W.2d 235
• Parties: STATE of Iowa, Appellee, v. Richard W. MORITZ, Appellant.
• Court: Iowa Supreme Court

Page 235

293 N.W.2d 235

STATE of Iowa, Appellee, v. Richard W. MORITZ, Appellant.

No. 62991.

Supreme Court of Iowa.

June 18, 1980.

Greg A. Egbers, of Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Selwyn L. Dallyn, Asst. Atty. Gen., and William E. Davis, Scott County Atty., for appellee.

Considered by REES, P. J., and UHLENHOPP, McCORMICK, McGIVERIN, and LARSON, JJ.

UHLENHOPP, Justice.

This appeal requires us to consider challenges by a deputy sheriff to his conviction on charges arising from his receipt of mileage fees for service of legal papers. References are to the 1977 Iowa Code unless otherwise stated.

As part of his duties as a Scott County deputy sheriff, defendant Richard W. Moritz supervised the service of legal papers by the sheriff's office and the accounting of funds generated by service. To cover the costs of serving civil papers, sections 79.9 and 337.11(10) of the 1977 Code provide that sheriffs are entitled to collect fifteen cents for every mile driven by their deputies in private cars to serve the papers. Under Moritz' supervision, Scott County deputies were instructed to charge attorneys flat dollar amounts calculated according to geographical zones, rather than the statutory rate. The funds generated by this system exceeded those authorized by law. The officers who actually served the papers received half of the amount charged; Moritz received a portion of the remaining funds each month. Although Scott County Sheriff Kenneth R. Paulsen took the largest share of those remaining funds, Moritz' portion ranged from $150 per month in mid-1973 to $250 per month in mid-1977.

On March 30, 1978, the State filed two informations charging Moritz with violations of sections 739.10 (accepting award for public duty) and 740.1 (extortion), as well as with conspiracy to commit those crimes. See § 719.1, The Code 1977. The information alleging violation of section 739.10 and of conspiracy to violate that section involved a specific act on January 7, 1977. The information alleging violation of section 740.1 and conspiracy to violate that section involved an incident on November 3, 1976. On June 29, 1978, the State orally moved to dismiss the original informations "in the interests of justice," and the motion was sustained by the district court. On the same day the State filed a new information again charging Moritz with violation of section 739.10 and with conspiracy to violate that section, involving an activity which allegedly occurred on April 5, 1977. See §§ 719.1, 739.10, The Code. Moritz filed a motion to dismiss the June 29 information on the ground that the crimes it charged were the same as those alleged in the previous informations, and that the previous informations should have been dismissed with prejudice for speedy trial reasons. The district court overruled the motion on the ground that, although the previously filed informations should have been dismissed with prejudice because of the prosecution's failure to provide a speedy trial thereon, the crimes alleged in the June 29 information constituted separate and distinct charges from those alleged originally. We denied Moritz' petition for a writ of certiorari to review that ruling on October 28, 1978.

Prior to the trial of this case Moritz filed three additional motions to dismiss which were overruled by the district court. Four days before trial the State filed a motion to amend the June 29 information to add as co-conspirators Sheriff Paulsen and two other deputy sheriffs. The district court granted the motion to amend over Moritz' protest of prejudice based on tardiness.

At the close of the State's evidence at trial and again at the close of all the evidence, Moritz moved for a directed verdict of acquittal. The trial court overruled both motions, and the jury found Moritz guilty of violating section 740.10 (taking more than a lawful fee, ruled by the trial court to be a lesser included offense of section 739.10) and of conspiracy to violate section 739.10. Moritz then filed motions for a new trial and for arrest of judgment asserting numerous errors by the trial court. The court overruled the motions and passed sentence, and Moritz appealed.

I. Speedy trial. We first take up Moritz' speedy trial contention.

A. Validity of June 29 charges. One of Moritz' arguments is that the court's dismissal of the original informations and the subsequent prosecution under the June 29 information violated his right to a speedy trial under section 795.2 of the 1977 Code as this court construed the section in State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1974). Section 795.2 provides in part:

If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial within sixty days after the indictment is found, the court must order it to be dismissed, unless good cause to the contrary be shown.

In Johnson this court held that when charges for a particular offense have been dismissed under section 795.2 the State may not subsequently file charges for that same offense, and that to hold otherwise would "drain (section 795.2) of its force and effectiveness in protecting the accused's right to a speedy trial." Id. at 612. Moritz contends that Johnson is applicable here and his conviction must therefore be reversed.

For Johnson to apply two factors must exist. First, the dismissal of the original charge must have been for speedy trial reasons rather than for such "good cause" as the facilitation of evidence-gathering, procurement of witnesses, or plea bargaining. Id. at 613. Second, the later-filed charge must be for the same offense as originally.

The district court specifically ruled that the original informations "should have been dismissed with prejudice by the Court for failure to bring the Defendants to trial within 60 days of the Informations, pursuant to Section 795.2 of the Code." The State does not challenge that finding. Although at one time the State claimed it could show "good cause" for the delay in Moritz' arraignment and trial, the record shows it dismissed the original informations twenty-seven days later "in the interests of justice" with no further pleading or proof on the good cause issue. We thus accept the finding of the district court that the State dismissed the original informations to avoid the consequences of its failure to bring Moritz to trial within sixty days.

The district court declined however to apply Johnson to this case, concluding that the charges in the June 29 information are "distinct and separate" from those in the original informations. It based this conclusion on the ground that the June 29 information alleged offenses occurring on different dates than those in the original informations. Because of differences in the crimes of which Moritz was convicted, we will consider them separately.

1. Acceptance of more than lawful fee. In the context of double jeopardy, we have adopted the "same evidence" test for determining whether two alleged offenses are the same. We believe that rationale is applicable here:

The rule now generally recognized is that, in order that the plea of former jeopardy may be available, it must appear that the two offenses are in substance the same, or of the same nature, or same species, so that the evidence which proves one would prove the other.

State v. Stewart, 223 N.W.2d 250, 251 (Iowa 1974), cert. denied, 423 U.S. 902, 96 S.Ct. 205, 46 L.Ed.2d 134 (1975) (citations omitted).

Applying this test to the two section 739.10 violations with which Moritz was charged originally and later, plainly the evidence which would sustain a conviction on one would not sustain a conviction on the other. The section 739.10 offense requires an overt act as one of its elements acceptance of valuable consideration for performance of an official act. Because the section 739.10 violation charged in the original informations alleged a different overt act than the one in the June 29 information, both charges could not be sustained on the same evidence and each one constituted a separate offense. See Lunsford v. United States, 200 F.2d 237, 238 (10th Cir. 1952) (circuit court found two bribery charges to be separate where the alleged transactions occurred on different dates, even though same parties were involved). See also, State v. Cabbell, 252 N.W.2d 451, 453 (Iowa 1977); State v. Morgan, 155 Iowa 482, 484, 136 N.W. 521, 522 (1912).

2. Conspiracy. The conspiracy charges involve a somewhat different analysis. The offense of conspiracy charged here consists essentially of an agreement to commit some "illegal act injurious to the public trade, health, morals, or police, or to the administration of public justice." § 719.1, The Code. The State did not have to prove any overt act in furtherance of the agreement. Compare State v. Tebo, 256 Iowa 449, 450, 127 N.W.2d 646, 647 (1964), with § 706.1, The Code 1979. Because an agreement is the primary element of a conspiracy charge, the nature of the agreement between conspirators determines whether a single overall conspiracy or separate conspiracies have occurred. See United States v. Palermo, 410 F.2d 468, 470 (7th Cir. 1969).

A single conspiratorial agreement may not be divided arbitrarily in such way as to permit multiple charges. See, e. g., United States v. Papa, 533 F.2d 815, 820 (2d Cir. 1976); United States v. Young, 503 F.2d 1072, 1075 (3d Cir. 1974); Palermo, 410 F.2d at 470. The United States Supreme Court stated the principle thus:

Whether the object of a single agreement is to commit one crime or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.

. . . Since the single continuing agreement, which is the...