Opinion
No. 6-162 / 05-0967
Filed April 12, 2006
Appeal from the Iowa District Court for Webster County, Fredrick E. Breen, District Associate Judge.
Defendant appeals his convictions for possession of contraband and possession of marijuana. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Timothy N. Schott, County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan, J., and Beeghly, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
Tony Friedman was an inmate at the Fort Dodge Correctional Facility. On August 29, 2004, a correctional officer found Friedman in possession of ten marijuana "pin joints." Friedman was charged with possession of contraband in a correctional institution, in violation of Iowa Code sections 719.7(1)(a), (3)(c), and (4)(b) (2003), and possession of marijuana, in violation of section 124.401(5).
A jury found Friedman guilty of both charges. Friedman filed a motion for merger of offenses. He argued that possession of marijuana was a lesser included offense of possession of contraband, and that under section 701.9, the offenses merged. Friedman asserted that judgment should be entered only on the charge of possession of contraband.
The district court found possession of marijuana was a lesser included offense of possession of contraband in a state institution. The court concluded, however, that the purpose of the two offenses was different, and the legislature intended multiple punishments for the offenses. The court also noted that the offenses carried different punishments, so the legislature intended both punishments to apply. The court refused the merge the offenses. Friedman appeals.
II. Standard of Review
We review challenges to the legality of a district court's decision on a request for merger under section 701.9 for the correction of errors at law. State v. Bullock, 638 N.W.2d 728, 731 (Iowa 2002).
III. Merits
Section 701.9 provides:
No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.
This code section "codifies the double jeopardy protection against cumulative punishment" for a single offense. State v. Gallup, 500 N.W.2d 437, 445 (Iowa 1993). The purpose of this statute is to prevent a court from imposing a punishment greater than that contemplated by the legislature. State v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000).
To determine whether a public offense is necessarily included in another public offense, we look to the legal elements of each offense. See Blockberger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 2d 306, 309 (1932); State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). However, "[e]ven though a crime may meet the so-called Blockberger test for lesser-included offenses, it may still be separately punished if legislative intent for multiple punishments is otherwise indicated." Bullock, 638 N.W.2d at 732. "In other words, in the context of multiple punishments, satisfaction of the Blockberger legal test is determinative of double jeopardy only when legislative intent is not clearly expressed by statute. . . ." Gallup, 500 N.W.2d at 443.
We focus on whether the legislature intended to authorize cumulative punishments under the different statutes. State v. Hickman, 576 N.W.2d 364, 368 (Iowa 1998). Evidence of the legislature's intent may be found by considering the purposes of the statutes. Halliburton, 539 N.W.2d at 344. The purpose of section 719.7 is to maintain the peace and security of correctional institutions. The purpose of section 124.401(5) is to protect society in general from persons who possess controlled substances for personal use. As the district court noted, "Those two places are very different in terms of impact of the possession of controlled substances." We conclude the legislature intended multiple punishments for possession of contraband in an correctional institution and possession of marijuana.
Furthermore, a conviction under section 124.401(5) contains punishments not permitted for a conviction under section 719.7. If a person is convicted of a controlled substances offense under section 124.401, the person's driver's license may be revoked for 180 days. Iowa Code § 901.5(10). A person may also be denied federal or state benefits. See Iowa Code §§ 901.5(11), (12). In addition, for an offense under chapter 124, the court may impose a drug abuse resistance education surcharge, Iowa Code § 911.2, and a law enforcement initiative surcharge. Iowa Code § 911.3.
A similar situation was considered in State v. Eckrich, 670 N.W.2d 647, 649 (Iowa Ct.App. 2003), where the defendant was charged with felony eluding, possession of marijuana, and operating while intoxicated. We noted that convictions for possession of marijuana and operating while intoxicated contained punishments not available in a conviction for felony eluding. Eckrich, 670 N.W.2d at 649-50. We determined:
It does not appear the legislature set out to insulate a person from the specific sentencing mandates of section 321J.2(2)(a)(3) and section 124.401, just because that person was also "eluding" as proscribed under [section] 321.279(3)(b). Rather it appears quite evident that each statute was designed to address a separate form of illegal conduct and the punishments designed accordingly.
Id. at 650. So also here Friedman should not be insulated from the punishments available for a conviction of possession of marijuana under section 124.401 just because he was also convicted of possession of contraband under section 719.7.
We conclude the district court did not err in denying Friedman's motion for merger of offenses. We affirm Friedman's convictions and sentences.
AFFIRMED.
Mahan, J., concurs; Sackett, C.J., concurs specially without opinion.