*1 Iowa, Appellee, of STATE HARRINGTON, Glenn
Charles
Appellant. Gallo, Appellate Del De- Linda State Ranschau, fender, and Robert P. Assistant Defender, Court Iowa. Supreme Appellate appellant. State General, Miller, Attorney Thomas J. Soich, Attorney Sheryl Assistant Gener- al, Sarcone, County Attorney, P. John Noble, Jeffrey County K. Assistant Attor- ney, appellee.
CARTER, Justice. Defendant, Harrington, Charles Glenn from appeals the sentence follow- ing his conviction of false (1997). violation of Iowa section 710.7 Code Because find that defendant received sentence, affirm the convic- tion but the sentence. The case to remanded the district court for resen- tencing. originally charged
Defendant with in the robbery degree kidnapping first robbery degree. in the third prior In was dismissed to trial. connection kidnapping charge, the trial with on the presented the de- evidence the fendant had abuse the victim. The did not convict defen- dant of the offense but rather a lesser offense of included In special interroga- onment. to a tory jury, submitted found (false had defendant committed crime imprisonment) the intent to commit with sexual abuse. sentencing stipulated
At it was that the previously had defendant been convicted sexually offense. The sen- judge tencing concluded jury’s answer to the present sexually preda- was also subject tory offense and thus was to an under Iowa sec- enhanced sentence Code *2 441 901A.2(1). (2) concluding, Kidnapping In so the dis- as defined in tion section trict court indicated believed 710.1. imprisonment met the
conviction (3) Burglary as defined in section statutory definition of 713.1. it had been an attempt offense because (4) endangerment Child under section in as defined section 726.6, 1, paragraph subsection “e ”. 710.1. exploitation c. in Sexual of minor considering Before the issue of 728.12, violation of section subsection 1. statutory interpretation presented, that is authority we must exercise our to correct Pandering involving d. a minor in vi- illegal any an sentence at time. Defen 725.3, olation of section subsection 2. previous dant’s conviction of a Any e. an involving attempt offense 6, place July offense took on to commit an offense contained in this 1994. In v. Tornquist, 600 N.W.2d section. (Iowa 301, 1999), 307 this court held that An offense under prior law of this the statute under which this defendant was f. state or an in offense committed another apply retroactively sentenced did not so jurisdiction which would constitute an punishment to allow enhanced equivalent paragraphs offense under occurring convictions the act be through “a” “e ”. July came effective on 1996. This deci sion was not available to the district court 901A.1(1). § Iowa Code sentencing. at the time of Because the jury’s Based on the answer to the inter- enhanced sentence that was rogatory, we conclude that the defendant’s an sentence based on the Tomquist false-imprisonment conviction awas sexu- decision, we vacate the sentence re ally predatory offense. It falls under sub- mand the case to the court for district part e of the relating definitional statute resentencing. “[a]ny involving attempt offense an to com- inquiry Our does not end at this mit an in offense contained this section.” point. question The appeal raised on this The district court believed that the false- concerning whether defendant’s false-im qualified conviction as an at- sexually pred conviction was a to commit tempt atory offense is not moot because courts in contained section 901A.1. While we are required are to make prospective determi conclusion, in agreement not with that nations of qualify offenses so jury’s think based on the answer to 901A.4(2). under section false-imprisonment a sexually predatory offense is offense involved an to commit an- as follows: other offense contained in section 901A.1. in chapter, As used the term abuse, That offense was sexual which is ” “sexually predatory any means section, in subpart contained a of that aggravated serious or misdemeanor or designates “any provision which felony which constitutes: 709.” A any provision a. violation of stated, For the affirm reasons defen- chapter 709. dant’s conviction but vacate his sentence. b. A any following violation of of the The case is remanded to the district court abuse, if the offense involves sexual at- abuse, tempted sexual or intent to com- mit sexual abuse: AFFIRMED; CONVICTION SEN-
(1) Murder as defined in section AND RE- TENCE VACATED CASE 707.1. MANDED FOR RESENTENCING. NEUMAN, except justices WATERLOO, SNELL, LAVORATO, JJ., who CITY OF Iowa, Appellant, dissent.
NEUMAN, (concurring in Justice MUTUAL IN- BLACK HAWK part). *3 dissenting and ASSOCIA- SURANCE agree I in the result I because TION, Appellee. Tomquist compels our that we decision Harrington’s sentence and remand I But differ with of Iowa. Supreme Court analysis concerning majority’s 22, 2000. sexually predatory offense. onment as correctly recognized false im- Having not the same as majority concludes constitutes violation abuse). (sexual
chapter I respectfully
disagree. sentencing provisions enhanced plainly require
Iowa 901A.2 Code section
conviction of an offense defined in section sexually predatory
901 1 as applies.
enhancement we have here is jury’s interrogatory pertinent
a conviction nowhere included in section false imprisonment
901A.1. The crime of Harrington
for which stands convicted motivated, have been well found. But the crime has not into
thereby been transformed a sex abuse
conviction under nor does it meet the
otherwise offense. SNELL, JJ., join
LAVORATO part.
concurrence in dissent in