Opinion
No. 13–0039.
2014-02-5
STATE of Iowa, Plaintiff–Appellee, v. James Blake CARY, Defendant–Appellant.
In sum, the district court may have made a misstatement, but that cannot be determined from this record. The only thing that can be determined from this record, without resort to speculation, is that the district court explicitly stated it considered defendant's burglary conviction when imposing sentence when the defendant has not been convicted of burglary. This requires the sentence be vacated and this matter remanded for sentencing. See State v. Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998) (noting the general rule a court “may not consider an unproven or unprosecuted offense when sentencing a defendant”).