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IN THE SUPREME COURT OF IOWA
No. 76 / 05-1868 Filed August 17, 2007 STATE OF IOWA, Appellee, vs. JOANN MINNIE KAMBER, Appellant. ________________________________________________________________________ On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, John D. Lloyd, Judge.

Defendant seeks further review of court of appeals decision affirming her sentence for theft in the second degree, claiming district court erroneously failed to consider sentencing option of deferred judgment. DECISION OF COURT OF APPEALS VACATED. SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

Mark C. Smith, State Appellate Defender, Nan Jennisch and Dennis D. Hendrickson, Assistant State Appellate Defenders, for appellant.

Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and John H. Judisch, Assistant County Attorney, for appellee.

2 TERNUS, Chief Justice. The defendant, JoAnn Kamber, was sentenced to five years imprisonment, suspended, with two years probation after pleading guilty to theft in the second degree. Although the defendant had requested a deferred judgment, the district court determined she was ineligible for this sentencing option because she had been given deferred sentences for two prior theft convictions. The defendant appeals, claiming the court erred in concluding she was not eligible for a deferred judgment. We

agree the defendant's prior deferred sentences do not render her ineligible for a deferred judgment. Therefore, we vacate her sentence and remand for resentencing. I. Background Facts and Proceedings. On September 29, 2005, the defendant entered a plea of guilty to a charge of theft in the second degree in violation of Iowa Code sections 714.1 and 714.2(2) (2005). At her subsequent sentencing, her counsel asked the court to impose a deferred judgment. The State resisted this request, pointing out the defendant had two prior deferred sentences for theft. The State claimed these deferred sentences made the defendant ineligible for a deferred judgment under Iowa Code section 907.3(1)(c), which provides in relevant part: 1. With the consent of the defendant, the court may defer judgment and may place the defendant on probation upon conditions as it may require. . . . However, this subsection shall not apply if any of the following is true: .... c. Prior to the commission of the offense the defendant had been granted a deferred judgment or similar relief, two or more times anywhere in the United States. Iowa Code

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