STATE of Iowa, Appellee, v. Edward Oliver MORNINGSTAR, Appellant.
No. 54718.
Supreme Court of Iowa.
May 23, 1973.
Since the “mature judgment” mentioned in Tschappat is notably lacking here, we find it imperative for the conditions to be fixed by court direction. Otherwise, what we said in Andreesen v. Andreesen, supra, 252 Iowa at 1158, 110 N.W.2d at 279, would seem to apply with equal force here:
“This much we know-if visitation rights are allowed plaintiff, the time, place and extent of the visits must be definitely fixed and the terms agreed uрon or ordered by the court must be carefully observed. Otherwise the right of visitation will be a source of much controversy.”
Our conclusion raises still another question, however. Should the order fixing visitation rights be made here or by remand to the trial court for appropriate proсeedings?
We have accomplished the desired result by each method, but we refuse to make the necessary determination on the record presently before us, which is now more than two years old.
At the time of the modification hearing, Aaron was six years old; now he is eight. When dealing with a young child, two years may make dramatic changes in his home, social, and educational life. We have alluded several times in recent decisions to our dissatisfaction over deciding such matters “under circumstances which no longer exist and conditions which have long sinсe changed.” Miller v. Miller, 202 N.W.2d 105, 112 (Iowa 1972) and citations.
We have also acknowledged the principle that the trial court is in the best position to determine when, and the conditions under which, visitation should be permitted. Jones v. Jones, 175 N.W.2d 389, 392 (Iowa 1970); Wells v. Wells, 168 N.W.2d 54, 60 (1969). Furthermore, remand is unavoidable in the present case because we believe an additionаl hearing should be held in order that the important questions involved may be decided on circumstances existing now, not those of several years ago. We therefore remand the case for further hearing with the following directions: (1) the matter shall be heard forthwith and shall be given prefеrence over other pending cases as far as assignment for hearing is concerned, and (2) the conditions and circumstances under which visitation shall be granted are to be specified by the court and not left to the agreement of the parties.
In the event an appeal should be taken by either party from the order of the trial court, such appeal shall be accelerated for disposition in this court. To this end, counsel for the party filing notice of appeal is ordered to advise the clerk of this court by mail forthwith that an aрpeal has been taken.
This matter is affirmed in part, modified and remanded for further proceedings in accordance herewith.
Affirmed in part; modified; and remanded for further proceedings.
Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., and Stanley R. Simpson, Boone County Atty., for appellee.
UHLENHOPP, Justice.
The main question in this criminal appeal is whether the charge was filed in time.
The chronology of events relative to the claimed errors which were preserved is this. On February 6, 1970, an officer arrested and incarcerated defendant Edward Oliver Morningstar for allegedly operating а motor vehicle while intoxicated. On February 7, 1970, the officer took defendant before a magistrate and defendant posted bail. The magistrate did not hold a preliminary examination nor did defendant waive one.
On April 7, 1970, the prosecutor charged defendant by county attornеy‘s information with driving while intoxicated. On May 13, 1970, defendant pleaded not guilty and moved to dismiss the information on the ground that it was filed too late. Subse
In this cоurt defendant advances two main propositions which were preserved in the trial court: first, the offense of driving while intoxicated under
I. Offense of Driving While Intoxicated. Defendant is correct that the offense of operating a motor vehicle “while in an intoxicated condition” in
II. Defendant‘s Motion to Dismiss. Defendant predicated his motion to dismiss the county attorney‘s information on
Section 795.1 deals with speedy indictment. Defendant‘s difficulty relates to applicability of that section to the facts here. The section provides in part:
When a person is held to answer for a public offense, if an indictment be not found against him within thirty days, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown. (Italics added.)
See also
The words “held to answer” in
- After preliminary examination showing sufficient reason to commit the accused, or on waiver by the accused, the magistrate orders that the accused be “held to answer.”
§ 761.18 . - The magistrate thereupon sets bail for defendant “to answer.”
§ 761.19 . - The magistrate then issues a warrant reciting that the accused is “held to answer.”
§ 761.20 . - The magistrate next transmits the papers to district court relating to an accused when the magistrate hаs “held him to answer.”
§ 761.25 . - In district court, the accused may challenge the jury if he has been “held to answer.”
§§ 770.3 ,770.4 . - Also in district court, the clerk lays the papers before the grand jury relating to an accused who has been “held to answer.”
§ 771.18 . - Finally, the prosecution must be dismissed if the grand jury does not indict аn accused who has been “held to answer.”
§ 795.1 .
These steps involving the expression “held to answer” were not enacted in separate statutes or at different times but rather in one act. See Code 1851, p. 1 and §§ 2872, 2874, 2875, 2880, 2882, 2890, 3248. “In the construction of a statute, it is ordinarily regarded as reasonаble to assume, or presume, or conclude prima facie, that words used in one place in a legislative enactment has the same meaning in every other place in the statute,-especially
In view of these considerations, we recently held that the expression “held to answer” in
Since
The constitutional doctrines defendant urged in his motion to dismiss the cоunty attorney‘s information were apparently part of his attack upon the demand-waiver rule under
The verdict and sentence must stand.
Affirmed.
All Justices concur except REES, MASON and RAWLINGS, JJ., who dissent.
REES, Justice (dissenting).
I respectfully dissent from Division II of the majority opinion and the result.
I believe a more detailed recitatiоn of the background facts are necessary to a full understanding of the case. On February 6, 1970 defendant was arrested for allegedly driving a motor vehicle upon the public highway while intoxicated, the arrest occurring some time shortly before noon. Defendant was placed undеr arrest and incarcerated in the city jail at Madrid, and the following day was taken before a magistrate, the mayor of Madrid, where bond was fixed in the sum of $300, and upon defendant‘s posting the same he was released. No preliminary hearing was held then or at any other time so far as the record discloses, nor does the record reflect any waiver of preliminary hearing on the part of defendant.
The county attorney‘s information was filed in the office of the clerk of the district court of Boone County on April 7, 1970, and on May 13 defendant appeаred, was arraigned and pleaded not guilty. He was not represented by counsel at any time prior to the appearance on May 13, at which time he was arraigned and entered his not guilty plea.
Also on May 13, 1970 defendant filed his motion to dismiss the information on the grounds defendant was charged by the information filed April 7 with the commission of the offense on February 6, and that no indictment had ever been found, returned, presented or filed by the grand jury, and that more than thirty days had intervened between the date of the alleged commission of the offense and the filing of the infоrmation. He further asserted as a grounds for dismissal that he had never had a preliminary hearing in connection with the matter, had never waived the same, had never appeared by or through an attorney, and had never been represented by legal counsel at any stage of the proceedings up to the date of his arraignment. He further asserted there was never any
Defendant further alleged in his motion to dismiss that if he were forced to defend himself and go tо trial before a jury on the information, such action would result in denying him effective assistance of counsel, the right to a speedy trial, due process of law, and the equal protection of law guaranteed him by sections 9 and 10 of Article I of the Iowa Constitution, the Sixth Amendment and sеction 1 of the Fourteenth Amendment to the Constitution of the United States, and all of his rights under
Defendant‘s motion to dismiss was submitted to the court and overruled by enrolled order filed June 3, 1970. On May 15, 1970 defendant had filed his motion and demand for a speedy trial, in accordance with the provisions of
I am unable to agree under the circumstances and the facts of this case that the defendant here was not in reality “held to answer” for a public offense. A preliminary information had been filed against him, he had posted bond, and had been released without further formality. Under
In American Bar Association Standards for Criminal Justice, Standards Relating to Speedy Trial, p. 19, § 2.2(a), the committee discusses the question of a person being “held to answer“, and says:
“This is the date on which the defendant was brought before a judicial officer on sоme allegation of a crime or crimes (not necessarily a charge, as heretofore defined) upon which that judicial officer ordered the defendant thereafter held in custody or released on bail or recognizance.”
I believe the foregoing to be thе proper meaning of the phrase “held to answer“, and it is at this time (whenever he is either held in custody or released on bail or recognizance) that the protective safeguards should attach. The United States Supreme Court has recognized this problem, and speaks tо the issue in United States v. Marion, 404 U.S. 307, at page 320, 92 S.Ct. 455, at page 463, 30 L.Ed.2d 468 (1972):
“Arrest is a public act that may seriously interfere with the defendant‘s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy and create anxiety in him, his family аnd his friends. * * * So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particu
lar protections of speedy-trial provision of the Sixth Amendment. “Invocаtion of the speedy-trial provision thus need not await indictment, information or other formal charge.”
I cannot disregard the fact defendant was released on bail, although he was not afforded a preliminary hearing, albeit he never at any time requested one, and in short it seems unreasonable to hold that defendant was not “held to answer” when all the other incidents of a formal charge could be deemed to have been operative against him. Therefore, I would hold defendant, insofar as the facts of this case are relatable to the provisions of
I would reverse the trial court. I would forthrightly overrule State v. Mays, supra, and settle this troublesome question once and for all.
MASON and RAWLINGS, JJ., join in this dissent.
REES
Justice
STATE of Iowa, Appellee, v. Donald MASSEY, Appellant.
No. 55755.
Supreme Court of Iowa.
May 23, 1973.