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IN THE SUPREME COURT OF IOWA
No. 120 / 04-1474 Filed May 18, 2007 STATE OF IOWA, Appellee, vs. BENJAMIN THOMAS GORDON, Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Jasper County, Thomas W. Mott, District Associate Judge.

Defendant seeks further review of court of appeals decision rejecting, on error-preservation grounds, his claim that he was illegally sentenced as a habitual offender. DECISION OF COURT OF APPEALS VACATED.

JUDGMENT OF CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, R. Steven Johnson, County Attorney, and Michael K. Jacobsen, Assistant County Attorney, for appellee.

2 TERNUS, Chief Justice. The appellant, Benjamin Gordon, challenges his sentence as a habitual offender on the charge of criminal mischief in the second degree. He claims the prior felony convictions proven by the State are insufficient to warrant application of the habitual-offender statute. We agree and remand for resentencing on the conviction of second-degree criminal mischief. I. Background Facts and Proceedings. Gordon was charged by trial information with one count of criminal mischief in the second degree, a class "D" felony. See Iowa Code

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