State v. Uebberheim, 59046

• Court: United States State Supreme Court of Iowa
• Citation: 263 N.W.2d 710
• Docket Number: No. 59046,59046
• Parties: STATE of Iowa, Appellee, v. Mark UEBBERHEIM, Appellant.
• Decision Date: 22 March 1978

Page 710

263 N.W.2d 710 STATE of Iowa, Appellee,
v.
Mark UEBBERHEIM, Appellant. No. 59046. Supreme Court of Iowa. March 22, 1978.

Page 711

Clarold E. Rogers, Glenwood, for appellant.

Richard C. Turner, Atty. Gen., Thomas A. Evans, Jr., Asst. County Atty., and H. Walter Green, County Atty., for appellee.

Considered by MOORE, C. J., and MASON, RAWLINGS, LeGRAND and REYNOLDSON, JJ.

RAWLINGS, Justice.

Defendant was charged with injuring a motor vehicle. On nonjury appellate trial anew district court found defendant guilty. He appeals. We reverse.

Mark Uebberheim, then a juvenile, was charged by preliminary information with injuring or tampering with a motor vehicle in violation of Section 321.78, The Code 1975, a nonindictable misdemeanor. See § 321.482. October 23, 1975, trial was had to a magistrate who found Uebberheim guilty. Oral notice of appeal was promptly given pursuant to § 762.43.

December 12th, the noticed appeal was scheduled to come on for hearing in district court December 16th and defendant was so notified by mail.

At trial time Uebberheim first unsuccessfully requested the hearing be governed by Ch. 232, i.e., conducted as a juvenile delinquency proceeding rather than adult criminal prosecution. Defendant then moved for a continuance, solely in order to permit a timely request for jury trial. This too was overruled.

Trial to the court proceeded and Uebberheim was again found guilty. The judge suspended all but ten days of a thirty day jail sentence and placed defendant on one year's "parole." This appeal followed.

Here raised are these issues, all of which need not be entertained:

(1) Does § 321.482, as applied, violate the constitutional requirement that laws of a general nature operate uniformly?

(2) Was defendant improperly denied his right to jury trial by district court's failure to grant a continuance?

(3) Did trial court impose unconstitutional or unlawful probation terms?

I. Uebberheim initially contends he should not have been charged under § 321.78 and resultantly tried as an adult.

Section 321.78 provides:

"Any person who * * * willfully injures or tampers with any vehicle or breaks or removes any part or parts of or from a vehicle without the consent of the owner is guilty of a misdemeanor punishable as provided in section 321.482."

Section 321.482 allows a maximum punishment of $100 fine or thirty days in jail and additionally states: "Chapter 232 shall have no application in the prosecution of offenses committed in violation of this chapter which are punishable * * * (as nonindictable misdemeanors)."

Page 712

Uebberheim argues that because he could have been charged under another statute which carries no Ch. 232 exemption, he should have been so charged. See, e.g., § 714.1.

This position is without merit. Assuming without deciding some statute other than § 321.78 was also violated by Uebberheim, it still remains the prosecution chose § 321.78 and secured a conviction thereunder. As recently observed in Bordenkircher v. Hayes, --- U.S. ----, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978):

"In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." (emphasis supplied).

See also United States v. Ojala, 544 F.2d 940, 943 (8th Cir. 1976); State v. Sefcheck, 261 Iowa 1159, 1167-1168, 157 N.W.2d 128, 133 (1968); State v. Russell, 259 Iowa 1133, 1136-1137, 147 N.W.2d 22, 24-25 (1966); ABA Standards Relating to The Prosecution Function, § 3.9 (1971), quoted in United States v. Lovasco, 431 U.S. 783, 794, 97 S.Ct. 2044, 2051 n.15, 52 L.Ed.2d 752 (1977); 63 Am.Jur.2d, Prosecuting Attorneys, § 26; 27 C.J.S. District & Pros.Attys. § 14(1).

Significantly, Uebberheim makes no showing that the decision to prosecute under § 321.78 was based on unconstitutional considerations such as race or religion or that it resulted from prosecutorial "vindictiveness". See Blackledge v. Perry, 417 U.S. 21, 24-29, 94 S.Ct. 2098, 2101-2103, 40 L.Ed.2d 628 (1974); Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962); State v. Walker, 236 N.W.2d 292, 295 (Iowa 1975). In fact, there is nothing to suggest Uebberheim was singled out for § 321.78 prosecution while other similarly situated minors were referred to juvenile court. See United States v. Ojala, 544 F.2d at 943. On the contrary, § 321.78 seems particularly if not exclusively appropriate under the involved facts. There was no abuse of prosecutorial discretion in so charging this defendant.

II. Relatedly, Uebberheim also submits the above quoted portion of § 321.482 makes the statute, as applied to him, violative of the constitutional requirement that "(a)ll laws of a general nature shall have a...