Iowa Supreme Court: 2nd degree robbery reversed, corrected to 3rd degree robbery
The Iowa Supreme Court on Friday in State v. Ortiz reversed and remanded a felony robbery conviction for entry of a misdemeanor and sentencing while interpreting a newly enacted third degree robbery statute enacted by the Iowa Legislature in 2016.
The Court, noting legislative history, indicated Iowa Code § 711.3A was passed in 2016 to fill a gap between Robbery in the First Degree, a Class “B” felony, Robbery in the Second Degree, a Class “C” felony, and Theft.
Robbery in the first degree is defined as “while perpetrating a robbery, the person purposely inflicts or attempts to inflict serious injury, or is armed with a dangerous weapon.” Iowa Code § 711.2. The Court noted that robbery in the second degree had been a catch-all for anything that wasn’t robbery in the second degree, e.g., “All robbery which is not robbery in the first degree is robbery in the second degree.”
However, the amendment to the statute stated that all robbery which is not robbery in the first degree and “except as provided in section 711.3A” is robbery in the second degree. Third degree robbery as legislated in 2016 is defined as “while perpetrating a robbery, the person commits an assault as described in section 708.2, subsection 6, upon another person.”
In Ortiz, the defendant’s counsel requested that the second degree robbery instruction include the commission of an assault with the intent to cause serious injury but the court refused and instructed robbery in the second degree as merely “committed an assault," apparently using a model jury instruction that predated the law change.
The Supreme Court held that it similarly instructed the jury that to commit robbery in the third degree, the defendant had to “commit an assault," thus conflating second with third degree robbery.
By finding the defendant not guilty of first degree robbery, the court reasoned that the jury found that the defendant could not have brandished a dangerous weapon. Further, the evidence was insufficient, the court held, to find that he had the specific intent to commit a serious injury. Therefore, they remanded for a conviction on the aggravated misdemeanor third degree robbery and a resentencing. The case is a win for defense counsel because it transformed a 10 year prison sentence with a mandatory seven years in prison before possibility of parole into no more than two. Note that David A. Cmelik Law PLC has no affiliation to the Ortiz case.
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