Opinion
No. 3-083 / 02-0761.
Filed March 12, 2003.
Appeal from the Iowa District Court for Muscatine County, PATRICK J. MADDEN, Judge.
Joe Reynolds appeals his sentence for third-degree burglary, following a guilty plea. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Richard Phillips, County Attorney, and Kerri Snyder, Assistant County Attorney, for appellee.
Considered by HABHAB, HARRIS, and BROWN, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
An amendment to a criminal statute, reducing punishment, was made effective after defendant entered a guilty plea, but before deferred judgment was revoked. Defendant claims, under Iowa Code section 4.13 (1999), his sentence thereafter imposed should have been reduced in accordance with the amendment. We agree and therefore reverse and remand for resentencing.
On October 3, 2000, defendant Joe Yancy Reynolds pled guilty to third-degree burglary, a class "D" felony under Iowa Code section 613.6A. The charge resulted from items stolen from an unoccupied motor vehicle. The court ordered a presentence investigation (PSI) and set sentencing for November 3, 2000. The PSI report recommended a suspended five-year prison term and two years probation. On November 3 the court deferred entering judgment as authorized by Iowa Code section 607.3, ordered a two-year probation and committed Reynolds to the district's correctional services, imposing a number of conditions. At the time the court noted that, if Reynolds violated his probation, "then probation will be revoked and judgment and sentence will then be entered. . . ." The court's reference to when sentence would be entered was in accordance with section 907.1.
On May 3, 2002, on the State's application, the court revoked the deferred judgment and sentenced Reynolds to a term of not to exceed five years, a term that would be appropriate under section 613.6A, as it was in effect November 3, 2000, when Reynolds received the deferred judgment.
Reynolds's appeal is grounded on an amendment to section 613.6A, which made a special provision for third-degree burglaries from unoccupied motor vehicles, reducing them from class "D" felonies, to an aggravated misdemeanor. 2001 Iowa Acts ch. 165.1. The amendment was effective July 1, 2001. Iowa Code § 3.7.
Reynolds points to section 4.13 (punishments must be imposed in accordance with statutory amendment reducing them). It is clear that section 4.13 applies to any defendant "who had not yet been sentenced." State v. Chrisman, 514 N.W.2d 57, 62 (Iowa 1994).
Although the State contends otherwise, it seems clear to us Reynolds had not been sentenced before the effective date of the statutory amendment. He should have been sentenced for an aggravated misdemeanor.