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IN THE COURT OF APPEALS OF IOWA No. 8-671 / 07-2069 Filed December 17, 2008

STATE OF IOWA, Plaintiff-Appellant, vs. REBECCA ANN TRAINER, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Paul W. Riffel, Judge.

The State appeals from the district courts order dismissing a seconddegree burglary charge against the defendant. REVERSED AND REMANDED.

Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, Jesse Marzen, County Attorney, for appellant. Mark C. Smith, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellee.

Heard by Vogel, P.J., and Mahan and Miller, JJ.

2 VOGEL, P.J. The State appeals from the district courts dismissal of a second-degree burglary charge against Rebecca Trainer. The State asserts that although

judgment had been entered on Trainers guilty plea to a lesser offense of misdemeanor trespass, double jeopardy did not require the dismissal of the greater charge. As we agree with the State, we reverse and remand for further proceedings. I. Procedural History On July 5, 2007, Trainer was involved in an incident, which resulted in her arrest. She was initially cited by the arresting officer for trespass, a simple

misdemeanor, in violation of Iowa Code section 716.7 (2007). She was also charged with four counts of first-degree harassment, each an aggravated misdemeanor, in violation of Iowa Code section 708.7(2). Trainer applied for and was appointed counsel. On July 6, 2007, Trainer made her initial appearance before a magistrate judge and pled not guilty to the trespass charge. Trial was set for the "last Tuesday of January 2008." On July 24, 2007, in lieu of a preliminary hearing, the State, through the county attorney, charged Trainer by trial information with four counts of firstdegree harassment in violation of Iowa Code sections 708.7(1)(b)1 and 708.7(2),

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Trainer was originally charged with first-degree harassment in violation of Iowa Code sections 708.7(1)(a)(1) and 708.7(2). The district court determined that the code sections under which Trainer had been charged were incorrect. Thus, the trial information was amended to charge Trainer with four counts of first-degree harassment under Iowa Code sections 708.7(1)(b) and 708.7(2).

3 and second-degree burglary in violation of Iowa Code sections 713.1 and 713.5(2).2 The State did not dismiss the pending citation for trespass. On August 6, 2007, Trainer moved to dismiss the four counts of harassment, or in the alternative to combine the four counts into one count. On August 13, 2007, commencing at 2:13 p.m., a hearing was held on Trainers motion. Shortly thereafter, at 2:48 p.m., Trainer filed a written guilty plea to the misdemeanor trespass charge stemming from the citation. The proof of service indicated a copy of the plea was then provided to the county attorney through the courthouse mail system. On August 15, 2007, Trainers defense counsel took the court file to the magistrate for entry of judgment and sentence on the guilty plea. Trainer was sentenced on the trespass charge and ordered to pay a sixtyfive dollar fine, plus surcharge, court costs, and attorneys fees. The judgment and sentencing order was then filed at 8:54 a.m., noting a copy was to be given to the county attorney. Apparently yet unaware of the magistrates entry of

judgment and sentence, at 11:00 a.m. the State filed a resistance to the guilty plea on the trespass citation. The State asserted that because the trespass charge was a lesser-included offense of the burglary charge , "substantial injustice" would occur if the court accepted Trainers plea. On August 17, 2007, Trainer filed a response to the States resistance, asserting the resistance was moot as judgment had already been entered and sentence imposed. She further

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Iowa Rule of Criminal Procedure 2.33(2)(a) states: When an adult is arrested for a commission of a public offense . . . and an indictment is not found against the defendant within 45 days, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown or the defendant waives the defendants right thereto.

4 asserted the State could have, but failed to, dismiss the trespass charge when the second-degree burglary charge was included in the trial information. On August 20, 2007, Trainer was arraigned in district court on the four counts of harassment and the burglary charge. That same day, the district court ordered that the four counts of harassment be combined into one count. On August 23, 2007, the trial information was amended to one count of first-degree harassment and one count of second-degree burglary. On August 31, 2007, after a hearing, the magistrate denied the States resistance to Trainers guilty plea on the trespass citation. Subsequently, Trainer moved to dismiss the burglary charge, asserting it was barred on double jeopardy grounds. On November 5, 2007, the district court dismissed the

burglary charge finding that trespass is a lesser-included offense of seconddegree burglary and thus, prosecution of the burglary charge was barred on principles of double jeopardy. The State appeals asserting that the burglary

charge should not have been dismissed. II. Scope of Review Our review of constitutional claims is de novo. Iowa R. App. 6.4; State v. Butler, 505 N.W.2d 806, 807 (Iowa 1993). III. Double Jeopardy The Double Jeopardy Clause of the United States Constitution provides no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This guarantee is applicable to stat e criminal proceedings through the due process provision of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707,

5 716 (1969). Additionally, the Iowa Constitution provides "[n]o person shall after acquittal, be tried for the same offense." Iowa Const. art. I,

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