State of Iowa v. Ervin Lee Wilson Jr.

• Court: Court of Appeals of Iowa
• Decided: April 19, 2017
• Docket: 16-0393
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0393 Filed April 19, 2017

STATE OF IOWA, Plaintiff-Appellee,

vs.

ERVIN LEE WILSON JR., Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joseph M.

Moothart, District Associate Judge.

Ervin Wilson Jr. appeals following his conviction for absence from custody,

in violation of Iowa Code section 719.4(3) (2015). AFFIRMED.

Jeffrey L. Powell of the Law Office of Jeffrey L. Powell, P.L.C.,

Washington, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ. 2

DANILSON, Chief Judge.

Ervin Wilson Jr. appeals following the trial court’s finding Wilson was guilty

of being knowingly and voluntarily absent from a place where he was required to

be, in violation of Iowa Code section 719.4(3) (2015). He argues the State failed

to indict him within forty-five days of his arrest and, therefore, the trial court erred

in denying his motion to dismiss.

On September 2, 2015, Wilson was sentenced to reside in a residential

facility as a condition of his probation in another case—Black Hawk County case

number AGCR206863. He was placed on escape status on September 4, 2015,

when he failed to return on time. A report of probation violation was filed on

September 8 in AGCR206863, and an arrest warrant issued on the alleged

probation violation that same date.

On September 16, Wilson was arrested on a new theft charge in Bremer

County. On September 17, he was transferred to Black Hawk County.

On September 22, Wilson was arrested on the outstanding warrant for

probation violation. His probation was revoked on October 27, and the

underlying prison sentence imposed.

Wilson was still in custody on November 20, 2015, when the trial

information for the instant charge was filed. An order for an arrest warrant in this

case was issued on November 20. The return of service on the warrant states it

was executed on November 23.

Wilson moved to dismiss the absence-from-custody trial information on

the ground it was not filed within forty-five days of his arrest and was untimely 3

under Iowa Rule of Criminal Procedure 2.33(2)(a). The district court denied the

motion and, following a trial on the minutes, found Wilson guilty.

Our review of the court’s application of procedural rules governing

indictment, Iowa Rule of Criminal Procedure 2.33(2)(a), is for correction of errors

at law. State v. Wing, 791 N.W.2d 243, 246 (Iowa 2010). “We are bound by the

findings of fact of the district court if they are supported by substantial evidence.”

Id.

Wilson contends he was arrested on the absence-from-custody charge on

September 22. The record indicates, however, that he was arrested on the

warrant issued for the reported probation violation in case number AGCR206863.

There is no constitutional right to be arrested at the moment probable cause

arises, State v. Trompeter, 555 N.W.2d 468, 470 (Iowa 1996), and no reasonable

person would have believed the arrest was for anything other than the alleged

violation of probation. See Wing, 791 N.W.2d at 249. Wilson’s claim that the trial

information in this case, filed on November 20, 2015, was untimely under Iowa

Rule of Criminal Procedure 2.33(2)(a) is without merit. The district court did not

err in denying his motion to dismiss. We affirm.

AFFIRMED.