Opinion
No. 5-271 / 04-1442
Filed April 28, 2005
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, District Associate Judge.
Defendant challenges her sentence, alleging the district court failed to offer her the opportunity to speak in mitigation of her sentence. SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Harold Denton, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Lindsay Ann Barker, a/k/a Lindsay Ann Mally, appeals her sentence in a probation revocation proceeding. She contends the district court did not grant her the right to speak in mitigation of her sentence. Based on our review for the correction of errors at law, we agree. See Iowa R. App. P. 6.4.
Iowa Rule of Criminal Procedure 2.23(3)( d) requires a district court to allow "counsel for defendant, and the defendant personally . . . to address the court where either wishes to make a statement in mitigation of punishment." The court need not use any special language but must, in some fashion, give the defendant a chance to volunteer helpful information. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). This right applies in probation revocation proceedings. State v. Duckworth, 597 N.W.2d 799, 800-01 (Iowa 1999).
The State essentially concedes that the court did not offer Mally the opportunity to speak in mitigation of her sentence, but contends defense counsel's statements on her behalf were an adequate substitute. The rule and case law state otherwise. Iowa R. Crim. P. 2.23(3)( d); State v. Craig, 562 N.W.2d 633, 634 (Iowa 1997). Accordingly, we vacate Mally's sentence and remand the case for resentencing.