Opinion
No. 2-365 / 01-1422.
Filed July 31, 2002.
Appeal from the Iowa District Court for Cass County, TIMOTHY O'GRADY, Judge.
Donald Treanor appeals the sentence imposed upon his guilty plea to operating a motor vehicle while under the influence of alcohol, second offense. SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and James P. Barry, County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Donald Treanor appeals the sentence imposed upon his guilty plea to operating a motor vehicle while under the influence of alcohol (OWI), second offense, in violation of Iowa Code section 321J.2 (1999). Treanor argues that the sentence imposed was illegal because the court did not have statutory authority to impose both an indeterminate prison sentence under section 903.1(2) and a jail term pursuant to section 321J.2(2)(b). In the alternative, Treanor also challenges the court's authority to impose a jail term as a condition of probation. Finally, Treanor argues that the district court erred in failing to give adequate reasons for the sentence imposed as required under Iowa Rule of Criminal Procedure 2.23(3)(d).
The sentencing transcript reveals the following discourse:
THE COURT: Mr. Treanor, based on your plea of guilty to Operating While Intoxicated Second Offense in violation of 321J.2 of the Code, you are hereby committed to the custody of the Director of Adult Corrections, State of Iowa, for a period not to exceed two years. . . .
Now, that sentence is suspended and you are placed on two years supervised probation. As a condition of that probation, you need to serve 60 days in the Polk County Jail. . . . You also will have credit against that 60 days for any time that you spent in jail when you were first arrested. You are fined the sum of $1,500 and you are taxed the court costs and surcharges of this case.
. . . .
You are placed on supervised probation for a period of two years from today. As a condition of that probation, in addition to getting your fines and costs paid and jail time served, you also need to avoid any other arrests or involvement with the law during this time that you are on probation and you are to follow through with any treatment recommendations for your alcohol problems.
Our review is for correction of errors at law. Iowa R. App. P. 6.4; State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). A sentence must comply with all applicable statutes. If a sentence is not authorized by statute, it is void. State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994). A sentence imposed in accordance with applicable statutes will be overturned only for an abuse of discretion or a defect in the sentencing procedure, such as consideration of impermissible factors. State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983).
We initially note that while a court does have statutory authority to impose up to a two-year indeterminate term under section 903.1(2), the general sentencing statute for misdemeanors, and a jail term of a minimum seven days pursuant to section 321J.2(2)(b), the sentencing statute specific to OWI second, State v. Melk, 543 N.W.2d 297, 302 (Iowa Ct.App. 1995), we do not believe that the jail term imposed in the present case was imposed under the appropriate section. As noted above, the district court imposed a sixty-day jail term "as a condition of . . . probation." This is not authorized by the Code. State v. Tensley, 334 N.W.2d 764, 765 (Iowa 1983). We therefore vacate the sentence and remand for sentencing.
Because this issue is dispositive we need not address Treanor's remaining contentions.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.