State v. Sheets, 63757
| Decision Date | 23 April 1980 |
| Docket Number | No. 63757,63757 |
| Citation | 291 N.W.2d 35 |
| Parties | STATE of Iowa, Appellee, v. Lee Kenneth SHEETS, Appellant. |
| Court | Iowa Supreme Court |
Thomas J. Miller, Atty. Gen., Douglas F. Staskal, Asst. Atty. Gen., and Arnold O. Kenyon III, Union County Atty., Creston, for appellee.
Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, ALLBEE, and LARSON, JJ.
This defendant appeals his conviction of burglary in the first degree, in violation of sections 713.1-.2, The Code 1979. He alleges that his conviction should be reversed because (1) the county attorney who signed the information filed against him had failed to qualify for the office after being duly elected and (2) failure of the State to reveal exculpatory evidence rendered his trial unfair. We reject defendant's assignments of error and affirm the trial court.
Sheets was charged on January 22, 1979, with first-degree burglary of the Creston Medical Clinic. Several officers testified they saw Sheets inside the clinic, and one said he saw Sheets holding a short-barreled revolver. The burglars fled. A special deputy chasing one of them slipped and fell. While he was on the ground, he noticed Sheets kneeling beside a snowbank nearby. He arrested Sheets and made him lie prone next to the snowbank while awaiting the arrival of other officers. While lying there, Sheets started to move one of his hands until he was ordered to lie still. The officers spent another twenty to thirty minutes searching for the other suspect. When they returned and searched the area where Sheets was apprehended, they located a police special .38 revolver stuck in the snowbank within arm's reach of where Sheets was discovered. Five bullets were removed from the gun. Before Sheets was incarcerated, ten similar bullets were removed from his coveralls.
Sheets was apprehended on the same side of the highway as the clinic. On March 9, after the snow had melted, a Colt .45 handgun was discovered in the backyard of a residence on the opposite side of the highway and over a block from the point where the defendant was arrested.
The jury returned a verdict of guilty and defendant was sentenced on May 4, 1979. Defendant filed his appeal notice on June 7.
The disqualification of the county attorney was first brought to the court's attention in alternative motions to dismiss or for a new trial filed in the trial court on August 3, 1979, which was after the notice of appeal had been filed. These motions were based on the asserted failure of the county attorney to properly qualify for his office following his election. The parties stipulated he was duly elected, filed his bond with the auditor, and took his oral oath of office. The asserted disqualification was his failure to accompany his bond with a written oath.
I. The County Attorney Issue. Defendant contends that despite the fact a notice of appeal had been filed, the trial court nonetheless could rule on his motion raising the issue of the absence of a county attorney. His theory is that, since the court lacked subject-matter jurisdiction, there was no valid verdict or sentencing which would start the running of time limits on filing post-trial motions under Iowa R.Crim.P. 23. We find no merit in this theory but conclude that, even if properly preserved, the issue must be resolved against the defendant.
The appellant argues that because Mr. Kenyon failed to qualify as county attorney, there was a vacancy in the office, and the information filed by him did not invoke the criminal jurisdiction of the district court. Defendant waived this objection by failure to file it within the time limitations of Iowa R.Crim.P. 10. That rule provides, in part:
2. Pretrial motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial;
a. Defenses and objections based on defects in the institution of the prosecution.
b. Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceeding).
3. Effect of failure to raise defenses or objections. Failure of the defendant to timely raise defenses or objections or to make requests which must be made prior to trial under this rule shall constitute waiver thereof, but the court for good cause shown, may grant relief from such waiver.
4. Time of filing. Motions hereunder, except a motion for a bill of particulars, shall be filed either within thirty days after arraignment or prior to the impaneling of the trial jury, whichever event occurs earlier, unless the period for filing is extended by the court for good cause shown.
We were presented with a very similar situation in the recent case of State v. Hobson, 284 N.W.2d 239 (Iowa 1979). In Hobson the information was signed by an assistant attorney general, rather than by the county attorney or his assistant. we ruled that the objection was waived for failure to assert it within thirty days of arraignment and that such a defect in the information did not affect subject-matter jurisdiction. Id. at 241.
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...have surely been minor technical infirmities of those who otherwise clearly had color of title to their office. See State v. Sheets, 291 N.W.2d 35, 37 (Iowa 1980) (applying the doctrine to a county attorney who, following election to the office, failed to submit a written oath with his bond......
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