Opinion
No. 4-041 / 03-1180
Filed February 27, 2004
Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, Judge.
Defendant appeals the judgment and sentence entered on his guilty plea to possession of marijuana in violation of Iowa Code section 124.401(5) (2001). REVERSED AND REMANDED.
Dewey Sloan Jr. of Dewey P. Sloan Jr., P.C., LeMars, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Darin Raymond, County Attorney, and Amy Oetken, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., Miller, J., and Hendrickson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
The defendant, James Andrew Upton, appeals the judgment and sentence entered on his guilty plea to possession of marijuana in violation of Iowa Code section 124.401(5) (2003). We reverse and remand
The trial information was filed on March 10, 2003. Upton pled not guilty and demanded a speedy trial. After a number of delays for various reasons including a change of defense counsel, Upton made an oral motion to dismiss on June 16, 2003, for lack of speedy trial. The trial court denied the motion. Thereafter, counsel for Upton informed the court:
[A]fter speaking with my client, . . . he is willing to enter into a conditional plea of guilty on this charge, conditioned on our being able to appeal this court's ruling. . . .
The trial court entered an order stating:
[I]n order to allow defendant opportunity to research and file, if appropriate, a conditional plea of guilty not waiving this issue, these proceedings were recessed until June 23, 2003, at 1:00 p.m. . . . .
On June 23, 2003, pursuant to a plea agreement, Upton filed a written waiver of rights and a guilty plea to the charge of possession of marijuana. Included therein was a waiver of the right to file a motion in arrest of judgment and an acknowledgement that by having sentence imposed immediately, he would never be able to challenge the plea of guilty. On the same date, the trial court imposed sentence. However, at the request of defense counsel, the sentencing order included the statement, "execution of judgment is stayed pending outcome of appeal."
It is well settled in Iowa that with certain exceptions not applicable here, a guilty plea given in conformance with Iowa Rule of Criminal Procedure 2.8(2)( b) waives all defenses and objections. State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000).
Notwithstanding the trial court's reference to a conditional plea of guilty, "no provision is made in rule [ 2.8] for conditional pleas of guilty." State v. Tobin, 333 N.W.2d 842, 844-45 (Iowa 1983). There are only three recognized pleas to a criminal charge: guilty, not guilty, or former judgment of conviction or acquittal of the offenses charged. State v. Dorr, 184 N.W.2d 673, 674 (Iowa 1971). A defendant seeking to challenge a guilty plea must do so by a motion in arrest of judgment. State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980). The failure to do so precludes the right to assert the challenge on appeal. Antenucci, 608 N.W.2d at 19.
We conclude, therefore, there was no valid guilty plea entered by Upton because of the strings attached to the plea. The trial court was without authority to enter a judgment of conviction on Upton's conditional plea of guilty. We remand the case with directions that the plea be stricken and that Upton be required to plead as provided in Iowa Rule of Criminal Procedure 2.8(2)( a) and 2.8(2)( b). Dorr, 184 N.W.2d at 674-75.