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IN THE COURT OF APPEALS OF IOWA No. 0-702 / 09-1623 Filed December 8, 2010

STATE OF IOWA, Plaintiff-Appellee, vs. JAMES JOSEPH HOUSTON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Cynthia Moisan, District Associate Judge.

James Houston appeals the district court's order resentencing him pursuant to Iowa Code section 903B.2 (2009). REVERSED.

Angela L. Campbell of Dickey & Campbell Law Firm, P.C., Des Moines, for appellant. Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Linda K. Zanders, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Eisenhauer and Danilson, JJ. Tabor, J., takes no part.

2 DANILSON, J. James Houston appeals the imposition of an additional term of probation pursuant to Iowa Code section 903B.2 (2009) in a resentencing proceeding after his discharge from his original sentence term of probation. Upon our review, we find that a reasonable expectation of finality arose upon Houston's completion of his original sentence and double jeopardy attached precluding his resentencing. We reverse the order resentencing Houston. I. Background Facts and Proceedings. In February 2008, the State filed a trial information charging James Houston with invasion of privacy, in violation of Iowa Code section 709.21, for peeping at a woman in a tanning salon without her permission. Houston was seventy years old. He entered a written guilty plea on March 21, 2008. The district court sentenced him to a one-year period of incarceration and suspended the sentence. Houston was placed on probation for twelve months. He

completed the sentence, and on April 29, 2009, the court discharged Houston from probation. Subsequently, the State informed the court that, pursuant to Iowa Code section 903B.2 (special sentence for sex offenses), Houston should have been committed to the Iowa Department of Corrections for "supervision as if on parole" for an additional period of ten years. On June 1, 2009, the court ordered

Houston to reappear for resentencing. Following an unreported resentencing hearing on June 24, 2009, the court entered an order sentencing Houston to an additional period of ten years probation, stating "although the original sentence

3 order did not impose the additional term of probation, Section 903B is mandatory and the sentence must be imposed." Houston now appeals. II. Scope and Standards of Review. A sentence imposed by the district court is reviewed for errors at law. Iowa R. App. P. 6.907; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Sentencing decisions of the district court are cloaked with a strong presumption in their favor. Formaro, 638 N.W.2d at 724. To the extent the defendant raises a constitutional challenge to his resentencing, our review is de novo. Allen, 601 N.W.2d 689, 690 (Iowa 1999). III. Merits. Houston argues the district court's resentencing was in violation of Iowa Code section 907.9(4), which states: "A person who has been discharged from probation shall no longer be held to answer for the person's offense." He also contends that the court's action in resentencing him after he had been discharged from probation violates his rights against double jeopardy; is not supported by Iowa case law1; and is in opposition to public policy that supports the finality of a completed sentence. Here, the district court's original sentence did not include the special sentence required to be imposed pursuant to Iowa Code section 903B.2 (stating that a person convicted under chapter 709 "shall also be sentenced, in addition to any other punishment provided by law, to a special sentence [of probation] for State v.

In his brief, Houston states, "Nunc pro tunc orders are used to correct clerical mistakes only and may not be used to correct illegal sentences." We agree. However, the record fails to suggest that the court's resentencing order was a nunc pro tunc order, and Houston does not offer any additional support for his assertion.

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4 a period of ten years"). As a general principle, "[a] sentence not authorized by statute is void." Allen, 601 N.W.2d at 690. The court may correct an illegal sentence at any time. Iowa R. Crim. P. 2.24(5); State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010). This principle has been upheld "even in cases in which the illegal sentence was more lenient than that allowed by law and when the correction of the sentence would result in an increase in the sentence." Allen, 601 N.W.2d at 690. Sans inclusion of the 903B sentence, Houston's sentence was void. See State v. Hallock, 765 N.W.2d 598 (Iowa Ct. App. 2009) (finding original judgment and sentence not valid where it "did not contain the mandatory special sentence set forth in section 903B.2"); see also State v. Wiese, 201 N.W.2d 734, 737 (Iowa 1972) ("A sentence not permitted by statute is void."). The State relies in part on the holding in State v. Oxberger, 255 N.W.2d 138, 140 (Iowa 1977), to support its contention that the district court's resentencing of Houston was not improper. In Oxberger, the supreme court

determined that because the defendant's original sentence was illegal and void, the trial court's discharge of the defendant from probation was also void. Oxberger, 255 N.W.2d at 140. Thus, the supreme court concluded the defendant could be resentenced in accordance with the applicable law. Id. The State

contends that similar to the defendant in Oxberger, Houston's original sentence and his discharge from probation were void, and therefore, the court had jurisdiction to resentence him. We disagree. In Oxberger, the State sought review of the defendant's discharges from probation by timely writs of certiorari to the supreme court. Id. at 139. Because the writs were sustained, the discharges were held invalid, and the supreme

5 court remanded the case for resentencing. Id. at 140. Here, the State never timely challenged the order discharging Houston from probation. We further

differentiate this case from Oxberger because Houston has raised arguments concerning the applicability of Iowa Code section 907.9(4),2 and claims he will be twice put in jeopardy for the same offense if resentenced. Although the sentence imposed on Houston was illegal because it did not include the special sentence required by section 903B, and the order discharging him from probation could have been challenged, we believe Houston was entitled to the protection offered by section 907.9(4) for the reasons to follow. constitutional claim. Houston argues that his resentencing, or amended sentencing, is a violation of double jeopardy principles of the Federal and Iowa constitutions because the proceedings occurred after he completed his original sentence. See U.S. Const. amend. V; Iowa Const. art. I,

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