DECEMBER 2001

IOWA SUPREME COURT

State v. Bonstetter, 637  N.W.2d 161 (Iowa 12/19/2001)  [1]  Restitution -- "offset" authorized only by statute.  The restitution statute does not confer authority on the district court to include an offset in a restitution order. The only exception is an allowance for an offset for amounts paid the victim by insurance. [2]  Restitution -- costs of audit.  While common sense dictates that an audit was necessary in the case of a $422,000+ conversion of money by defendant-employee, the reviewing Court will not simply infer that the audit was necessary, fair and reasonable when challenged by defendant, absent proof to support the inclusion of the audit in the restitution order.  

State v. Burgess, 639 N.W.2d 534 (Iowa 12/19/2001). [1]  Guilty pleas -- rights waived.  Statute of limitations and speedy indictment claims are waived by an Alford plea.  [2]  Double jeopardy -- dismissal of "theft by misappropriation" charges, later charge and conviction of "theft by "theft by deception" charges.  Even if the dismissal of "theft by misappropriation" constituted an acquittal of that charge, it was proper for the State to re-indict and convict defendant on charges of "theft by deception" arising from the same facts, as the two charges are not the same offense for purposes of double jeopardy.  

State v. Cagley, 638 N.W.2d 678 (Iowa  12/19/2001).   [1] Hearsay -- excited utterance -- recanting domestic abuse victim statement.  Given the standard of review -- deferring to the trial court's factual findings and affirming if substantial evidence supports them -- alleged domestic-abuse victim's statements, which she recanted in part in court, were properly ruled not to fall within "excited utterance" or "residual hearsay" exceptions by district court.   (District court's ruling based on following:  (1) time between statement and event not so great as to necessarily fail excited utterance test, but was long enough to permit fabrication of a story; (2) many of statements were in response to questions by officers; (3) declarant was of sufficient age as to lack natural spontaneity of statements attributed to declarants such as children; (4) declarant was not hysterical or even "highly emotional" in tape-recorded interview to which judge listened; and none of the written reports noted any unusual emotional condition that would support an excited-utterance finding.  [2]  Hearsay -- residual hearsay exception.  District court's ruling that recanting witness's original statement did not fall within residual hearsay exception was supported by substantial evidence; predicated on findings that (1) declarant was not inherently trustworthy because of her age and opportunity to fabricate the allegations in the context of the witness's recantation of the statements under oath along with an explanation of her motivation for the original statements.

State v. Jacobs,  644 N.W.2d 695 (Iowa 12/19/2001).   [1] Resentencing -- scope of proceedings upon remand.  Absent limiting language in the remand order, the district court was empowered to reconsider all aspects of the defendant's sentence except for legal restrictions on sentencing that were presented and decided in the defendant's first appeal. [2]  Sentencing -- discrimination based on ADA status.  ADA decision (Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998)  mandates that specific services otherwise provided to prison inmates shall not be denied as the result of a disability.  Defendant has failed to demonstrate that the sentence discriminated against him based on a real or supposed disability. [3]  Aggregation of theft/forgery charges.  While the State has discretion in deciding whether to aggregate multiple theft or forgery charges as provided by statute, it is not required to do so nor is the district court required to merge multiple offenses into one offense for sentencing purposes. [4]  Consecutive sentences and due process -- proof of all elements beyond a reasonable doubt.  Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), has no application to the court's authority to order consecutive sentences without requiring the State to charge aggravating factors or prove such factors beyond a reasonable doubt.  Statutes that afford discretion with a sentencing court to impose consecutive sentences do not violate due process. [5]  Recusal by judge on remand.  Only personal bias or prejudice stemming from an extrajudicial source stand as disqualifying factors per se; defendant's convictions did not result from a bench trial and the Supreme Court finds no basis for concluding that the sentencing judge abused his discretion in failing to recuse himself.  [6]  Reasons for consecutive sentence -- same as for denying probation.  "The fact that the reason given ... for consecutive sentences was the same reason ... for not granting defendant probation does not present a basis for rejecting that reason as the controlling consideration for the imposition of consecutive sentences."  The reason (the high degree of culpability for an enormity of 30 crimes of which defendant was convicted) adequately supported the decision as to both the denial of probation and the imposition of consecutive sentences.

State v. Miller,  637  N.W.2d 201 (Iowa 12/19/2001).   Speedy trial.  State's one-day delay in providing defendant speedy trial was not supported by "good cause" for missing the deadline.  Defendant timely filed his pretrial motions.  The last available regular trial date in Marshall County before the speedy-trial deadline was November 30 but the court's ruling on the motions was not filed until December 2; thirty-eight days after the hearing and seven days before the speedy-trial deadline.  The trial was set for the next available trial date following the ruling, one day after the speedy trial period ran.  "Given [defendant's] demand for speedy trial and strict adherence to pretrial deadline, only a strong reason would justify departure from [rule 27's] mandate.  Unfortunately the record before us furnishes no reason for the delay, let alone a strong one.  As a result, we cannot say the court properly exercised its limited discretion under the rule."