Double jeopardy: 'accidental' probationer gets 4 years credit against corrected prison
In State v. Scott Jepsen, the Iowa Supreme Court reversed and remanded with directions to give an inmate credit for four years he mistakenly served on probation for a crime that requires a mandatory prison sentence.
In Jepsen, the district court after jury verdicts of guilty on two counts of Sex Abuse in the Third Degree against a 13 year old girl, illegally sentenced Defendant to two ten-year suspended prison sentences and placed Defendant on probation. Pursuant to Iowa Code §§ 907.3. and 709.4(2)(b)) the offense requires prison.
Over four years of street probation later, the district court discovered the error during an unrelated probation matter and resentenced the defendant to two concurrent ten-year prison sentences but refused to give him credit for over four years he spent on probation. Defendant appealed and the matter proceeded to the Court of Appeals which held that the Legislature only intended to grant credit for “alternative” jail facilities like halfway houses and not mere street probation. The Defendant requested, and the Iowa Supreme Court granted, further review.
Justice Cady, writing for the Court, noted that the district court had, by imposing probation and then prison, sentenced defendant to two punishments. Thus, the two sentences were a violation of the Fifth Amendment’s prohibition on double jeopardy, applicable to the States via the Fourteenth Amendment.
The opinion faulted the Iowa Court of Appeals analysis which looked to whether the Legislature intended to grant credit for street probation. Justice Cady wrote:
“[W]e do not look to whether the legislature intended a defendant to receive credit for his time served. Rather, we look to whether the defendant has in fact been punished and, if so, what credit the defendant should receive against the new sentence. Thus, in this case, we must look to see if Jepsen was punished when he was placed on probation and, if so, what credit he should receive for serving that sentence.”
The Court then went on to hold that probation is indeed punishment and that the Defendant should be credited for that time spent while on probation as against the corrected ten-year prison sentence.
“The time spent on probation, either within a residential treatment facility or otherwise subject to the conditions and surveillance of the judicial district department of correctional services, cannot be returned to a probationer.” Jepsen, at 11-12.
The State argued that day-for-day credit would prevent the Defendant from serving any “real” sentence. The Court said it was concerned not with parity of sentences but preventing constitutional violations.
“The guarantee under the Double Jeopardy Clause relevant to this case protects against the imposition of punishment greater than that intended by the legislature. Thus, the requirement of a credit under Pearce served to guard against the imposition of greater punishment. This constitutional mandate of a credit was not concerned with the risk that it might result in a lesser sentence, but served to guarantee against the risk of a greater sentence. Therefore, this guarantee necessarily accepts the risk of a lesser sentence to ensure the guarantee of no greater sentence.”
Jepsen, at 15.
Justice Mansfield concurred in part and dissented in part. His dissent agreed that probation is punishment but that the Defendant should not get day-for-day credit and instead should get only “some” credit. Jepsen, at 17 (Mansfield, J. dissenting).
Justice Mansfield noted that Iowa R. Crim. Pro. 2.24(5)(b) is “directly on point” and that, even though the Constitution requires some deviation from the rule, the deviation should be “as faithful to the rule as possible.”
Morover, the dissent noted that:
“The Double Jeopardy Clause does not mandate a one-to-one credit that treats all forms of probation the same as actual custody. It requires only a credit that takes into account the degree of restraint on liberty.”
Justice Mansfield cited to a survey of state and federal courts, noting that the First, Second, and Ninth federal circuit courts, as well as state courts in Illinois and Ohio, all found day-for-day credit is not required. Jepsen (Mansfield, J. dissenting) at 19-20.
The Mansfield dissent expressed dismay at the majority opinion, suggesting that it “compounded judicial error” and allowed the Defendant to get credit for “time he spent getting married, having a family, and not dealing with the problem that led to his two sexual abuse convictions in the first place.” Jepsen (Mansfield, J. dissenting) at 20 (emphasis added).
The dissent dropped a footnote suggesting that someone who hadn’t yet finished their prison sentence couldn’t challenge the sentence as final. Jepsen, (Mansfield, J. dissenting) at 21.
Justin Zager also dissented. The dissent noted that the United States Supreme Court decision in Pearce upon which the majority relied held only that double jeopardy prohibited the court from resentencing an inmate to the same prison sentence all over again after retrial. It didn’t apply to probation sentences, Justice Zager wrote.
“Unlike the defendant in Pearce, Jepsen was not retried and reconvicted after he served time in prison for the same offense. Instead, Jepsen was sentenced to a period of probation.” Jepsen at 23 (Zager, J. dissenting).
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