from the Iowa District Court for Polk County, Robert J.
district court treated the defendant's second motion to
correct an illegal sentence as an appeal.
L. Campbell of Dickey & Campbell Law Firm, PLC, Des
Moines, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Potterfield, P.J., and Bower and McDonald, JJ.
POTTERFIELD, Presiding Judge.
August 2006, Thomas Davis was convicted of four counts of
sexual abuse in the third degree. Each of the four counts was
enhanced pursuant to Iowa Code section 901A.2(3) (2005)
because of Davis's prior conviction for another sexually
predatory offense. The district court sentenced Davis to four
twenty-five-year terms of incarceration and ordered Davis to
serve them concurrently. Originally, the court also imposed
the special sentence of lifetime parole. See Iowa
Code § 903B.1.
2017, Davis filed a motion to correct an illegal sentence, in
which he argued that the application of the special sentence
violated the ex post facto clause, as the special-sentence
statute was not enacted until July 1, 2005 and the jury
instructions at his trial advised the jury the acts were to
have occurred between March 1 and September 15, 2005. The
State filed a response conceding that Davis was correct, as
there was "no way to determine whether the jury based
its verdict on conduct that occurred before or after the
effective date of the law." State v. Lathrop,
781 N.W.2d 288, 297 (Iowa 2010).
was resentenced on August 17, 2017; the court again imposed
four twenty-five-year terms, to be served concurrently.
September 21, Davis mailed to the district court another
motion to correct an illegal sentence. In it, Davis argued
his sentence was illegal because he was never arraigned on
nor received the amended trial information, which first
contained the notice from the State that it was seeking
application of the enhanced sentencing provision of section
901A.2(3)-changing the applicable sentence for each charge
from ten years to twenty-five years. He maintained he knew at
the time of his trial that the State would be "using his
prior conviction as evidence" but was not made aware of
the ramifications of stipulating to the prior offense.
district court issued an order in response, stating it
"deem[ed] the present motion to be a de facto motion of
appeal of the sentence imposed." The appeal was ultimately
transferred to this court.
reviewing the record, we disagree with the district
court's treatment of Davis's second motion as an
appeal, as the second motion to correct an illegal sentence
raised a new, different issue than his first motion.
Moreover, Davis was successful on his first motion-which the
State did not contest-and he was resentenced accordingly; it
is unclear what he would have appealed regarding the ruling
on his first motion. We reverse and remand to the district
court for ruling on the second motion. We do not retain