State v. Rath

• Decision Date: 11 January 1966
• Docket Number: Nos. 51830,51831,s. 51830
• Citation: 139 N.W.2d 468,258 Iowa 568
• Parties: STATE of Iowa, Appellee, v. Thomas C. RATH, Appellant.
• Court: Iowa Supreme Court

Page 468

139 N.W.2d 468

258 Iowa 568

STATE of Iowa, Appellee, v. Thomas C. RATH, Appellant.

Nos. 51830, 51831.

Supreme Court of Iowa.

Jan. 11, 1966.

Martin D. Hill and O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Robert W. Burns, County Atty., Dubuque, for appellee.

MASON, Justice.

April 5, 1965, defendant Thomas C. Rath was found guilty upon his plea of guilty of the crime of breaking jail and escaping in violation of section 745.8, Code, 1962. He was sentenced by the Dubuque County district court to be confined in the state reformatory at Anamosa for a term not exceeding one year. The same day the court revoked a suspended sentence previously granted on a conviction of breaking and entering and ordered defendant confined in accordance with its original judgment. Defendant appeals, seeking review of the jail-breaking conviction and of the trial court's order revoking the suspended sentence for breaking and entering.

March 4, 1964, defendant had been found guilty upon his plea of guilty to the crime of breaking and entering in violation of section 708.8, Code, 1962, and sentenced to the state penitentiary for a term not to exceed ten years. The same day the court suspended execution of the sentence, pending defendant's good behavior, Code section 247.20, and placed him under the care, supervision and control of the state board of parole, section 247.21(2).

November 27, 1964, defendant was placed in the Dubuque County jail by an agent of the state board of parole as the result of a probation violation.

December 7, 1964, defendant was not found in the county jail and on December 9 he was charged by county attorney's information with breaking jail and escaping, Code section 745.8.

March 3, 1965, defendant filed a motion to set aside the county attorney's information on the grounds the evidence as shown by the assistant county attorney's bill of particulars revealed defendant's acts did not constitute the offense charged as defendant was not lawfully confined in the county jail upon a proper criminal charge at time of his alleged escape, the information shows upon its face defendant was falsely imprisoned and illegally deprived of his liberty and such unlawful confinement constituted a complete defense and bar to the offense charged inthe information.

March 10, 1965, the trial court overruled defendant's motion, holding he was confined in jail for breaking and entering of which he had been convicted and sentence had been suspended. March 30, 1965, defendant changed his plea from not guilty to guilty and on April 5 the court found defendant guilty and his plea and sentenced him to the state reformatory at Anamosa for a term not exceeding one year. On the same day the court revoked defendant's suspended sentence of March 4, 1964, and ordered him confined in the state penitentiary at Fort Madison for a term of not more than ten years. In its order the court found that on March 30, 1965, defendant pleaded guilty to the breaking jail and escaping charge in violation of the condition of his parole requiring good behavior.

Defendant contends the court erred: (1) In holding he was lawfully confined in Dubuque County jail at the time of his alleged escape without (a) a written order from the state board of parole, (b) revocation of his suspended sentence, and (c) an information or indictment for parole violation; (2) In holding defendant was confined in the county jail upon a 'criminal charge', to-wit: breaking and entering of which defendant had been convicted, sentence suspended and parole granted; and (3) In revoking defendant's suspended sentence on the breaking and entering conviction.

Defendant argues the confinement was not by virtue of any written order of the board of parole pursuant to section 247.11, Code, 1962, nor by virtue of a revocation of his suspended sentence as authorized by section 247.26, nor was defendant confined under any written charge by information or indictment for parole violation, but rather at the request of his parole agent. These facts may be conceded.

I. Defendant contends the court erred in revoking his suspended sentence on the breaking and entering charge when it gave as a reason in the order of April 5, 1965, defendant's conviction on the breaking jail and escaping charge. He argues if defendant was not guilty of the breaking jail and escaping charge, the court's revocation of his suspended sentence was not based upon sound judicial discretion and cannot stand.

Granting a bench parole under section 247.20 is a matter of grace and forbearance on the part of the sovereign. Defendant acquired no vested rights thereunder. Pagano v. Bechly, 211 Iowa 1294 1298, 232 N.W. 798, 800; Lint v. Bennett, 251 Iowa 1193, 1196, 104 N.W.2d 564, 566; Curtis v. Bennett, 256 Iowa ----, 131 N.W.2d 1, 3. Whatever rights defendant acquired by reason of the parole are necessarily limited and controlled by these provisions of section 247.26:

'Revocation of parole. A suspension of a sentence by the court as herein provided may be revoked at any time, without notice, by the court or judge, and the defendant committed in obedience to such judgment.'

When the court grants a parole under 247.20 he in effect says to the defendant, "I will suspend your sentence during good behavior, but reserve the power to revoke this suspension of sentence and parole at any time I may see fit without notice to you." Pagano v. Bechly, supra. Cited with approval...