from the Iowa District Court for Pottawattamie County, Susan
defendant appeals from his sentence for robbery in the second
C. Smith, State Appellate Defender, (until withdrawal) and
Brenda J. Gohr (until withdrawal) and Mary K. Conroy,
Assistant Appellate Defenders, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Greer, JJ.
POTTERFIELD, PRESIDING JUDGE.
Lewis appeals from his sentence for robbery in the second
degree. See Iowa Code §711.3 (2017).
Lewis, who was seventeen years old at the time of the
offense, was sentenced to a term of incarceration not to
exceed ten years and ordered to serve a mandatory minimum of
three years before becoming eligible for parole.
challenging his sentence, Lewis maintains the sentencing
court's refusal to consider a deferred judgment as a
sentencing option constituted an abuse of
discretion. He bases his argument on Iowa Code section
901.5(14), which provides:
Notwithstanding any provision in section 907.3 or any other
provision of law prescribing a mandatory minimum sentence for
the offense, if the defendant, other than a child being
prosecuted as a youthful offender, is guilty of a public
offense other than a class "A" felony, and was
under the age of eighteen at the time the offense was
committed, the court may suspend the sentence in whole or in
part, including any mandatory minimum sentence, or with the
consent of the defendant, defer judgment or sentence, and
place the defendant on probation upon such conditions as the
court may require.
sentencing, Lewis maintained this statute allowed the court
to consider entering a deferred judgment even though his
crime was a forcible felony. See Iowa Code §
907.3. The district court disagreed, stating, "I
don't believe you're legally and statutorily allowed
to be-to receive a deferred judgment. That is the court's
legal analysis. That's not even an option for you."
appeal, the State concedes that section 901.5(14) modifies
section 907.3's prohibition against the entry of deferred
judgments for persons convicted of a forcible felony when the
person convicted is a juvenile offender. See id.
§ 702.11(1) (defining "forcible felony" to
include robbery). Furthermore, the State agrees the proper
remedy is allowing Lewis to be resentenced with consideration
of all options within the court's discretion.
agree that section 901.5(14) gave the court discretion to
enter a deferred judgment in Lewis's case. Because the
court was unaware it could enter a deferred judgment, we
vacate Lewis's sentence and remand for resentencing.
See State v. Lee, 561 N.W.2d 353, 354 (Iowa 1999)
("Where a court fails to exercise the discretion granted
it by law because it erroneously believes it has no
discretion, a remand for resentencing is required.").
VACATED AND ...