STATE v. CLARKE, 699 N.W.2d 686 (Iowa App. 2005)

No. 5-399 / 04-1471Court of Appeals of Iowa.
Filed May 25, 2005

Appeal from the Iowa District Court for Scott County, Douglas C. McDonald (trial) and Mary E. Howe (sentencing), District Associate Judges.

The defendant-appellant appeals from his conviction following a jury trial. APPEAL DISMISSED.

Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, William E. Davis, County Attorney, and Marc Gellerman, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.

SACKETT, C.J.

Defendant-appellant, Joseph Andrew Clarke, challenges his conviction following a jury trial of possession of drug paraphernalia in violation of Iowa Code section 124.414 (2001), a simple misdemeanor. He contends the evidence is insufficient to support the conviction. The State contends we do not have jurisdiction to decide this appeal, but even if we do, there was sufficient evidence supporting the challenged conviction. Finding no jurisdiction, we dismiss the appeal.

Defendant was stopped for a traffic offense on February 16, 2001, and as a result of the stop, was charged with operating a motor vehicle while intoxicated, careless driving, and failure to have a valid driver’s license. In doing an inventory search of the vehicle defendant had been driving prior to towing it, an officer found a ceramic glass pipe which the officer believed had been used for smoking marijuana. Defendant was tried before an associate district court judge to a jury on the four counts, and on July 13, 2004 was convicted of all of them. He appeared for sentencing on August 13, 2004 and then pled to operating while Intoxicated, third offense, in violation of section 321J.2(2)(c).

On September 13, 2004 defendant filed a notice of appeal which stated that he was appealing from, “the ruling of August 13, 2004 where in the Honorable Judge Douglas McDonald entered the `Order of conviction, after jury trial on OWI 3rd.'”

The State, citing Iowa Rule of Appellate Procedure 6.1, contends a notice of appeal is required to specify the judgment or any part thereof being appealed from and because the notice is limited to the operating while intoxicated charge, it does not address the possession of drug paraphernalia charge. Furthermore, because the possession charge is a misdemeanor, defendant was required to apply for and be granted discretionary review before we can address the matter.

Iowa Code section 602.6101, establishing the Iowa unified trial court, is supplemented by section 602.6104, which provides that the jurisdiction of the court “shall be exercised by district judges, district associate judges, and magistrates.” District judges have the full power of the district court. Iowa Code §602.6202. Magistrates have jurisdiction in simple misdemeanors Id. § 602.6405. District associate judges have all the jurisdiction of magistrates “and when exercising that jurisdiction shall employ magistrates’ practice and procedure.”Id. § 602.6306(1). The district associate judge is also empowered to hear indictable misdemeanor cases, and “[w]hile presiding in these subject matters a district associate judge shall employ district judges’ practices and procedures.” Id. §602.6306(2). In trying the case here the district associate judge utilized district court procedures because the challenged charge of possession was tried as a part of the more serious charge of driving under the influence. However, defendant only challenges his conviction of a simple misdemeanor. A person actually convicted of a simple misdemeanor under district court procedures does not have an appeal as a matter of right. Tyrrell v. Iowa Dist. Ct., 413 N.W.2d 674, 676 (Iowa 1987).

Iowa Code section 814.6 (2003) governing appeals from district court provides:

1. Right of appeal is granted the defendant from:

a. A final judgment of sentence, except in case of simple misdemeanor and ordinance violation convictions.
2. Discretionary review may be available in the following cases:

. . . .

d. Simple misdemeanor and ordinance violation convictions.

Under this section a defendant convicted of a simple misdemeanor in district court has no appeal as a matter of right, but does have the right to apply for discretionary review under section 814.6(2)(d). Tyrrell, 413 N.W.2d at 675. Defendant made no such application within thirty days of the judgment or order from which he sought review. Consequently we dismiss his appeal.

APPEAL DISMISSED.