IN THE COURT OF APPEALS OF IOWA
No. 13-0482
Filed July 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT LEE PATE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
Robert Lee Pate appeals the denial of his request for credit for time
served. AFFIRMED.
Mark D. Reed of Marbarry Law Firm, P.C., Urbandale, for appellant.
Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., Mullins, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
MAHAN, S.J.
Robert Pate appeals the denial of his request for credit for presentence
time served on his fifty-year sentence for possession of a controlled substance
with intent to deliver as a second or subsequent offender. Pate was arrested in
2007 after a large amount of crack cocaine was found in his possession. The
State dismissed the charges without prejudice on November 13, 2007, when the
federal government indicted Pate on one count of possession with intent to
distribute at least fifty grams of crack cocaine. After the federal prosecution was
dismissed in 2009, the State re-filed complaints identical to those filed in 2007.
Following his conviction and sentence, Pate filed a request for credit for
time served from the time of his 2007 arrest until sentencing, which the district
court denied. On appeal, Pate contends he is entitled to credit for time served
before sentencing under Iowa Code section 903A.5 (2011), which states:
If an inmate was confined to a county jail, municipal holding facility,
or other correctional or mental facility at any time prior to
sentencing, or after sentencing but prior to the case having been
decided on appeal, because of failure to furnish bail or because of
being charged with a nonbailable offense, the inmate shall be given
credit for the days already served upon the term of the sentence.
Pate argues he is entitled to credit for the entire time he remained incarcerated in
a jail facility or correctional facility during “successive prosecution for the same
offense” by different governmental units.
We conclude Pate is not entitled to credit for time served prior to
sentencing. Even assuming, without deciding, that Pate could receive a credit for
time served while the State and federal government pursued charges against him
that were later dismissed, Pate does not meet the criteria for credit set forth in
3
section 903A.5 because upon his arrest in 2007, Pate’s parole on a twenty-five
year, suspended sentence for an unrelated charge was revoked. During the time
Pate faced prosecution on all state and federal charges filed against him, he was
serving this sentence. As such, Pate was not confined to a jail or correctional
facility because of failure to furnish bail or being charged with a nonbailable
offense. See State v. Johnson, 167 N.W.2d 696, 701 (Iowa 1969) (holding a
defendant who was incarcerated on an unrelated conviction while facing new
charges was not confined because of failure to furnish bail or because of being
charged with a nonbailable offense but “because of another conviction”); see also
State v. Orte, 540 N.W.2d 435, 438 (Iowa 1995) (holding a defendant convicted
of homicide by vehicle was not entitled to credit for presentence time spent in jail
when defendant bonded himself out on homicide-by-vehicle charge and served
jail time on an unrelated drug conviction because of a probation violation).
Because Pate’s sentences for his unrelated conviction and the present one were
ordered to run consecutively rather than concurrently, no credit is available.1
Compare Johnson, 167 N.W.2d at 701 (holding a defendant confined on an
unrelated charge prior to sentencing is not entitled to credit in both cases where
the sentences are consecutive), with State v. Harrison, 468 N.W.2d 215, 217-18
(Iowa 1991) (allowing presentence credit for time spent in jail on unrelated
charge when sentences were ordered to run concurrently). Accordingly, we
affirm the denial of his request for credit for time served.
AFFIRMED.
1
The record indicates the time served is properly being credited to the twenty-five year
sentence on his prior conviction.