State of Iowa v. David Person ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0676
Filed February 6, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID PERSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clay County, Charles K. Borth,
District Associate Judge.
Defendant appeals asserting the fee portion of his sentence was illegal.
CONVICTION AFFIRMED. SENTENCE VACATED IN PART AND REMANDED.
Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
2
VOGEL, Chief Judge.
David Person appeals from his sentence imposed after being convicted of
operating while intoxicated, first offense, under Iowa Code section 321J.2 (2017).
He asserts his sentence was illegal because the district court ordered him to pay
a $150.00 probation fee while being supervised by the Clay County Sheriff. He
claims there is no authority for a probation fee to be paid to a county sheriff, only
to the judicial district department of correctional services if that is the probationary
agency.
We review a challenge to an illegal sentence for errors at law. State v
Petrie, 478 N.W.2d 620, 622 (Iowa 1991).
Although Iowa Code section 356.47 allows for Person to be placed “on
probation, upon such terms and conditions as the sentencing judge may direct,”
we find no provision in the code authorizing payment for a probationary fee to a
county sheriff. However, such payment is authorized when a person is on
probation with the judicial district department of correctional services. See Iowa
Code § 907.8(2); see also id. § 905.14 (authorizing fees for probation and parole).
While assuming without deciding Person’s plea counsel was ineffective in
allowing him to enter a plea that included this probation fee,1 we affirm Person’s
conviction, vacate the probation fee to the sheriff, and remand for the district court
to correct the illegal sentence.
CONVICTION AFFIRMED. SENTENCE VACATED IN PART AND
REMANDED.
1
His plea agreement also included a hand written provision: “I reserve my right to contest
the amount of restitution being sought.”