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Forfeiture notice
provisions as "special" statutory limitation
In
the Matter of Property Seized for Forfeiture from Williams,
676 N.W.2d 607 (Iowa 1/22/04) [1]
Forfeiture: effect
of failure to give timely notice of pending forfeiture.
In in rem forfeiture action, State’s failure to give notice
of pending forfeiture “within 90 days after
the property is seized for forfeiture if a request by the owner to
return the property has been made” Iowa Code section
809A.8(1)(a)(1) extinguished the State’s right to proceed.
That section establishes a statutory limitation
which, if not followed, deprives the court of jurisdiction
notwithstanding that the action was brought within the general statute
of limitations period. (Court
found that date on which seizure for forfeiture occurred was the date
originally claimed by the State in the first forfeiture action against
the same property, set aside on appeal, over three years prior to
second notice). [2]
Forfeiture: payment of successful claimant’s attorney fees.
Iowa code section 809A.12(7),
which authorizes the payment of claimant’s attorney fees by the
forfeiting body, is limited to actions in which the claimant prevails on
a claim for exemption, not on a claim of untimely notice. Iowa Rule of Civil Procedure 1.413(1), which applies to
forfeiture actions and provides sanctions for improperly-brought
actions, does not apply where, as here, “the
record provides ample evidence to conclude counsel for the State
exercised reasonable inquiry into the facts and law to support the
filing.”
Passenger's
guilt of aiding and abetting vehicular homicide affirmed
State
v. Dalton,
674 N.W.2d 11 (Iowa 1/22/04) [1]
Vehicular homicide – sufficiency of evidence that passenger
aided and abetted.
Evidence
that defendant/passenger, who punched and kicked at victim clinging to
truck driven by defendant’s brother until thrown to his death, was
sufficient to support guilty verdict of aiding and abetting vehicular
homicide. Under Iowa law,
a passenger may be held vicariously liable for a driver’s actions
and “need not drive a
vehicle or physically assist the driver in doing so in order to
actively participate or encourage a crime which requires operating a
motor vehicle at the time of its commission”.
[2] Proximate
cause – intervening and superseding.
Some evidence that the truck from which victim was thrown to
his death at the hands of defendant had been hit by a friend of the
victim while trying to intervene did not constitute the “sole
proximate cause” so as to intervene and supersede defendant’s role
in the crime. [3] Information – sufficiency of charge. The Iowa Rules of Criminal Procedure do not require the
State to charge a specific paragraph in an Information. Taking the Minutes of Testimony into consideration, the trial
information (which included reference to a subsection) may be rendered
sufficient to advise a defendant of the source and nature of the
evidence against him or her.
[4]
Vehicular homicide statute not void for vagueness.
The mens rea of vehicular homicide is recklessness.
The statutory reference to the words “unintentionally….
caus[ing] death” “does not connote strict liability, but
rather simply an accidental death …not … defendant’s ‘aim or
purpose’”, thus not conflicting with the mens
rea requirement of recklessness.
Insufficient
evidence of "possession" found again
State
v. Fullenwider,
674 N.W.2d 73 (Iowa 1/22/04)
[1] Ineffective
assistance – failure to anticipate Court’ ruling.
Counsel was not ineffective in failing to challenge district
court’s failure to accept a plea bargain one day into trial based on
principles (firm policy of rejecting pleas after certain time was
abuse of discretion) later decided in State v. Hager, 630
N.W.2d 828, 835-36 (Iowa 2001), for two reasons:
(1) that ruling was not in the “reasonably predictable”
category of anticipated decisions, and (2) Fullenwider is
distinguishable from Hager in that the former waited until most
of the State’s evidence was in before attempting to plead.
[2] Ineffective
assistance – failure to challenge sufficiency of evidence of
“possession”. Counsel
deemed ineffective for failing to challenge sufficiency of evidence of
that defendant was in possession of controlled substances found in the
apartment rented by another person but with whom he was found in bed. There was insufficient evidence to show that defendant had
the necessary control over the premises on which the contraband (found
in the kitchen) and gun (found under the bed) were found or the items
themselves to establish constructive possession.
Restitution
may be reduced in the amount of sum
paid by vicariously liable third party
State
v. Paxton,
674 N.W.2d 106 (Iowa 1/22/04) Restitution – setoff.
District court erred in failing to factor into its calculation
of the victim’s damages the sum paid to the victim by the
defendant’s former employer. Restitution
includes pecuniary damages, which means “all damages to the extent
not paid by an insurer, which a victim could recover against an
offender in a civil action…”
Under any theory of recovery that could be pursued against this
stockbroker/thief/defendant, a “pro tanto credit would be
required” for the amount paid by defendant’s vicariously-liable
company to the victim. Just
as a credit would be required in a civil action for damages, the
victim’s restitution award would have to be limited thereby.
(Distinguishing State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001) which
disallowed an offset of restitution monies in the amount defendant
claimed the victim owed him as not constituting “pecuniary
damages” under the statute).
Theft by
deception -- "knowingly" element as
functional equivalent of specific intent
State
v. Williams,
674 N.W.2d 69 (Iowa 1/22/04). [1] Theft by deception – sufficiency. Sufficient evidence
existed to support the “intent to deceive” element of theft by
deception given defendant’s misrepresentations surrounding his
purchase of a car. [2]
Jury instructions: multiple
theories of culpability, insufficient evidence on one theory. “If
the instructions allow the jury to consider multiple theories of
culpability, only some of which are supported by the evidence, and a
general verdict of guilty is returned, a reversal is required because
‘we have no way of determining which theory the jury accepted.’”
[3] Theft by deception
– “knowingly” as the equivalent of specific intent. “The acts of
knowing deception included in the statutory definition are in all
material respects the equivalent of a specific intent to deceive.” Although the district
court should have included the word “knowing” before each of the
deceptive acts listed in the marshalling instruction, the requisite
acts described in the instruction defied a finding otherwise so as not
to have constituted reversible error.
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