Opinion
No. 2-651 / 01-0776
Filed October 16, 2002
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge.
The defendant appeals his conviction for felony failure to appear. AFFIRMED.
Aaron Hamrock, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, John Sarcone, County Attorney, and Gary Kendal, Assistant County Attorney, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
A jury found Moriando Moore guilty of felony failure to appear based on his absence at an earlier trial on charges of possession of a controlled substance with intent to deliver, a class "C" felony, and possession of a controlled substance, a class "D" felony. The district court sentenced him to a five-year prison term. On appeal, Moore contends he should have only been charged with misdemeanor failure to appear.
Iowa Code section 811.2(8) (1999) states:
8. Failure to appear — penalty. Any person who, having been released pursuant to this section, willfully fails to appear before any court or magistrate as required shall, in addition to the forfeiture of any security given or pledged for the person's release, if the person was released in connection with a charge which constitutes a felony, or while awaiting sentence or pending appeal after conviction of any public offense, be guilty of a class "D" felony. If the defendant was released before conviction or acquittal in connection with a charge which constitutes any public offense not a felony, the defendant shall be guilty of a serious misdemeanor. If the person was released for appearance as a material witness, the person shall be guilty of a simple misdemeanor. In addition, nothing herein shall limit the power of the court to punish for contempt.
(Emphasis added). Under a plain reading of this provision, a person who fails to appear after being released on "a charge which constitutes a felony" shall be guilty of a class "D" felony. See State v. Houts, 622 N.W.2d 309, 311 (Iowa 2001). Moore was released pending trial on felony charges. He failed to appear for trial on those charges. Therefore, the county attorney appropriately charged him under section 811.2(8) with felony failure to appear. The fact that Moore was actually convicted of misdemeanor charges is irrelevant under this statute. Cf. Houts, 622 N.W.2d at 311 (noting original charge amended from felony to misdemeanor, precluding defendant from being charged with failure to appear in connection with "a charge which constitutes a felony").
We affirm Moore's judgment and sentence for felony failure to appear.