IN RE THE DETENTION OF TAUTE, 662 N.W.2d 373 (Iowa App. 2003)

No. 2-527 / 01-1686Court of Appeals of Iowa.
Filed February 12, 2003

Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.

Taute appeals from an order civilly committing him as a sexually violent predator, contending the State neither alleged nor proved he committed a “recent overt act” as required by law. REVERSED ANDREMANDED.

Mark Smith, First Assistant State Public Defender, and Greg Bal, Assistant Public Defender, for appellant.

Thomas J. Miller, Attorney General, Andrew Prosser and Roxann Ryan, Assistant Attorneys General, for appellee.

Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.

VAITHESWARAN, J.

Lanny Taute had a criminal history, including two convictions in 1965 and 1981 for sexual offenses. He discharged his sentences for the sexual offenses but was reincarcerated for operating while intoxicated (OWI). While he was serving his OWI sentence, the State petitioned to have him deemed a sexually violent predator. See Iowa Code ch. 229A (1999). Taute waived his right to a jury trial and agreed to have the case presented to the court on stipulated facts. The district court found Taute to be a sexually violent predator.

On appeal, Taute argues his substantive due process rights were violated in that: 1) Iowa Code chapter 229A does not require proof of a “serious difficulty in controlling behavior” and 2) he was allowed to be civilly committed “for an offense not of a sexually violent nature. . .” and without a showing of a recent overt act as defined in the statute.[1]
See Iowa Code § 229A.2(6). We will focus only on the second issue.

Our highest court squarely addressed this issue in In re Detention of Gonzales, ___ N.W.2d ___, ___ (Iowa 2003). The court found it unnecessary to decide whether substantive due process protections were violated, holding instead that the facts did not provide a basis for a finding of sexually violent predator status. The court’s holding is dispositive. Like Gonzales, Taute was not confined for a sexually violent offense when the State served him with the Chapter 229A petition and the State neither alleged nor proved he committed a recent overt act as defined in Iowa Code chapter 229A.

We reverse the commitment order and remand for dismissal of the petition.

REVERSED AND REMANDED.