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IN THE COURT OF APPEALS OF IOWA No. 6-455 / 05-1440 Filed August 9, 2006 STATE OF IOWA, Plaintiff-Appellee, vs. DOUGLAS SCOTT FUQUA, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Union County, Paul R. Huscher, Judge.

Douglas Fuqua appeals his sentences following his convictions for driving while intoxicated, third offense, and driving while his license was revoked. REVERSED AND REMANDED.

Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Timothy R. Kenyon, County Attorney, for appellee.

Considered by Sackett, C.J., and Huitink and Miller, JJ.

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MILLER, J. Douglas Fuqua appeals his sentences following his convictions for driving while intoxicated (OWI), third offense, and driving while his license was revoked. He contends the district court abused its discretion by considering an unproven offense in determining his sentence and that his attorney was ineffective for failing to object to the State's breach of the plea agreement. We reverse the sentences and remand for resentencing. The record reveals the following facts. On December 27, 2004, Fuqua was stopped for speeding. The officer who stopped him believed Fuqua was intoxicated and arrested him for OWI. Fuqua agreed to a breath test which showed an alcohol concentration of .129%. On February 2, 2005, the State charged Fuqua, by trial information, with OWI, third offense in violation of Iowa Code sections 324J.2, 321J.2(2) and 321.12(4) (2003). On March 23, 2005, Fuqua was involved in a motor vehicle accident while driving. At the time of the accident his driver's license had been and remained revoked, apparently a "test result revocation," see Iowa Code

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