- David A. Cmelik Law PLC
Iowa Supreme Court reverses 5-year extension of simple misdemeanor 1-year no-contact order
Today in State v. Vance, the Iowa Supreme Court issued a writ of certiorari to vacate a five-year extension of a one-year no-contact order entered upon Defendant’s guilty plea to and conviction of third degree harassment, a simple misdemeanor.
The Defendant filed an “appeal” of the lower court’s modification a year later extending the one-year no-contact order for an additional five years. The Supreme Court at first treated the “appeal” as a request for discretionary review but ultimately decided that it was notice pled as a petition for writ of certiorari, stating that a Defendant does not have a direct appeal right to challenge a no-contact order entered and modified in a simple misdemeanor conviction.
The Court held that magistrates have post-trial subject matter jurisdiction, pursuant to Iowa Code 664A.8, to modify no-contact orders in simple misdemeanor convictions for up to five years. The Court surmised that the Defendant has the burden to prove by preponderance that he or she no longer poses a threat because the statute states that the court “shall” extend the order unless it finds that the defendant no longer does so.
In this particular case, the no-contact order prohibited the Defendant from entering any school in the district, as well as any university, or anywhere in the vicinity of a school currently being attended by the protected parties. Because the Defendant wanted to attend school activities related to his own daughter, he wanted the no-contact order to expire even though he had complied with the order.
Defendant testified on his own behalf along with a police officer who knew him when he was a probation and parole officer. The police officer testified that he knew of no violations of the order.
The Court found the Defendant met his burden and issued a writ of certiorari directing the lower court to vacate the five year no-contact order.
David A. Cmelik Law PLC has no affiliation to the Vance case.
If you or a loved one have been arrested for a harassment or other criminal offense in Cedar Rapids or other Iowa community, contact David A. Cmelik Law PLC for a free initial consultation. However, please note that a blog is not legal advice and sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.
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