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State of Iowa v. Donald Wemett

January 9, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
DONALD WEMETT, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Dubuque County, Randall J. Nigg, District Associate Judge.

The opinion of the court was delivered by: Potterfield, P.J.

Donald Wemett appeals the judgment, conviction, and sentence following a bench trial on a stipulated record finding him guilty of operating while intoxicated. AFFIRMED.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ.

Donald Wemett appeals following his judgment, conviction, and sentence for operating while intoxicated. He argues the court erred in failing to dismiss his case on two grounds: first, that a prior prosecution in Illinois meant prosecution in Iowa violated the Fifth Amendment and Iowa statutory provisions against double jeopardy; and second, that the charges were not timely filed in violation of the speedy indictment rule.

We affirm, finding the Illinois and Iowa prosecutions were based on two separate offenses, and that the Illinois arrest was not an arrest by an Iowa officer as required to begin the speedy indictment time period.

I. Facts and Proceedings

On January 26, 2009, local police and the Iowa State Patrol were notified that Donald Wemett had broken into a Dubuque, Iowa home to see his estranged wife. He was reported to be intoxicated and driving to East Dubuque, Illinois. Todd Olmstead, an Iowa State Trooper, heard the call and drove to find Wemett near the Julien Dubuque Bridge, which spans the Mississippi river between Dubuque and East Dubuque. Olmstead observed Wemett shortly before he turned onto the bridge and followed him across. Once in Illinois, officers from the East Dubuque police department pulled over Wemett, observed he was intoxicated, and arrested him. Olmstead remained nearby during the stop, and, upon his return to Iowa, filed a report on the incident.

Wemett pled guilty and was sentenced for driving while intoxicated in Illinois. More than a year later, charges were filed against Wemett in Iowa for operating while intoxicated. Wemett filed a motion to dismiss on speedy trial and double jeapordy grounds. This motion was denied. He renewed the motion, which the court again denied. Wemett waived his right to a jury trial and agreed to a bench trial on a stipulated record. The court found Wemett guilty of operating his vehicle while under the influence. He was sentenced to a two-day jail term to be completed by participating in a community college drinking and driving program. He was also assessed a $1250 fine and court costs. Wemett appeals from these proceedings.

II. Analysis

We review constitutional claims de novo. State v. Bradley, 637 N.W.2d 206, 210 (Iowa Ct. App. 2001). We review a district court's decision regarding a motion to dismiss for lack of speedy indictment for correction of errors at law. State v. Wing, 791 N.W.2d 243, 246 (Iowa 2010).

A. Double Jeopardy

Wemett first asserts his prosecution under Iowa law after the Illinois prosecution was a violation of the Fifth Amendment provision against double jeopardy, and Iowa Code section 816.1 (2009). We have previously recognized that one act can be charged as a crime and punished by two different states, without regard to which state makes it to the courthouse first:

When assessing jurisdiction in criminal matters, courts are governed by the concept of dual sovereignty. Under that doctrine, even if we assume the elements of first-degree murder in Missouri are identical to those of the charge of murder that could have been brought against Bradley in Iowa, each state was free to prosecute the crime without regard to the other. See Heath v. Alabama, 474 U.S. 82, 88 (1985). In defining its own criminal code, each state exercises its own sovereignty when determining what acts will constitute "an offense against its peace and dignity. ...


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