Opinion
No. 3-687 / 02-2017
Filed October 15, 2003
Appeal from the Iowa District Court forIowa County, Patrick R. Grady, Judge.
Matthew Gragg appeals the computation of his credit for time served on his sentence for burglary in the third degree. APPEAL DISMISSED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Lewis McMeen, County Attorney, and Tim McMeen, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Matthew Gragg was charged with burglary in the third degree, in violation of Iowa Code sections 713.1 and 713.6A (2001), and possession of burglar's tools, in violation of section 713.7. On November 1, 2002, Gragg pled guilty to third-degree burglary, and the State agreed to dismiss the other charge. He agreed to be immediately sentenced, and was given a term of imprisonment not to exceed five years. Gragg was to be given credit for time previously served in jail on the charge. Gragg filed a pro se notice of appeal on December 2, 2002.
Gragg's appeal was timely under Iowa Code § 4.1(34), even though it was filed thirty-one days after the district court's entry of judgment, because the thirtieth day was a Sunday.
On January 28, 2003, Gragg filed a motion seeking to have the district court compute the time he had spent in jail prior to sentencing. The court entered an order on February 20, 2003, which found Gragg was held for a period of 192 days on the present charge. On appeal, Gragg claims the court erred in computing the days he was in jail before he was sentenced for third-degree burglary.
The State asserts Gragg has not properly appealed in this case. Generally, the district court loses jurisdiction over the merits of a controversy once an appeal is perfected. Gutierrez v. Wal-Mart Stores, Inc., 638 N.W.2d 702, 706 (Iowa 2002). The district court may retain jurisdiction, however, to consider issues collateral to and not affecting the subject matter of the appeal. State v. Jose, 636 N.W.2d 38, 46 (Iowa 2001). If the determination of how many days Gragg had spent in jail prior to sentencing is not a collateral matter, then the district court did not have jurisdiction to consider Gragg's motion, and the court's decision may not be considered on appeal. See State v. Grant, 614 N.W.2d 848, 852 (Iowa Ct.App. 2000) (finding that a district court ruling entered after an appeal was filed should not be considered).
On the other hand, if the matter of how many days Gragg had spent in jail was collateral to the subject matter on appeal, then an issue arises concerning whether the notice of appeal, filed on December 2, 2002, was applicable to the district court's ruling on February 20, 2003. A similar issue was raised in State v. Formaro, 638 N.W.2d 720, 727 (Iowa 2002), which held:
[W]e recognize that rulings on collateral or independent issues after final judgment are separately appealable as final judgments. Board of Water Works Trs. v. City of Des Moines, 469 N.W.2d 700, 702 (Iowa 1991). Thus, when a court addressed the issue of bail following the entry of a judgment and sentence, any appeal from a ruling on the issue must be separately appealed. A defendant cannot rely upon the notice of appeal from the judgment and sentence of the district court.
We conclude the district court had jurisdiction to rule on the application to review the appeal bond after Formaro filed his notice of appeal from the final judgment and sentence of the district court. However, Formaro never filed a separate notice of appeal from the ruling on the application to review bond. Accordingly, the issue of the additional terms imposed on the bail is not properly before us on this appeal.
We determine Gragg's motion to consider how many days he had spent in jail prior to sentencing was a matter collateral to any issues he may have raised on appeal from the court's judgment on November 1, 2002. See State v. Lessner, 626 N.W.2d 869, 871 (Iowa Ct.App. 2001) (noting the types of issues which may be considered collateral). In order to challenge the court's ruling on his motion, filed on February 20, 2003, Gragg was required to file a separate notice of appeal. The issue Gragg seeks to raise in this appeal is not properly before us. We dismiss Gragg's appeal.