State v. Grgurich

253 N.W.2d 605, 1977 Iowa Sup. LEXIS 1070

• Court: Supreme Court of Iowa
• Decided: May 25, 1977
• Docket: 59608
• Status: Published

Opinions

MOORE, Chief Justice.

Defendant appeals from judgment imposed pursuant to Code section 204.410 for his accommodation sale of 2.6 grams of cocaine. He contends the trial court abused its discretion in sentencing him to a term of one year in the county jail with six months to be served on weekends and six months suspended rather than placing him on probation or deferring sentence under Code chapter 789A. He argues the trial court’s remarks at the sentencing proceeding that the jury had given him a “break” at the accommodation trial were prejudicial and manifest an abuse of discretion necessitating reversal. We disagree and affirm.

In numerous recent cases we have adhered to the rule that so long as the sentence is within the statutory maximum we will not reverse absent an abuse of discretion. State v. Noonan, Iowa, 246 N.W.2d 236, 237; State v. Smith, Iowa, 244 N.W.2d 325, 327. Since the maximum sentence provided under section 204.410 is one year imprisonment in the county jail and a one thousand dollar fine, this rule is instantly applicable. While defendant had no prior record he had admittedly sold cocaine, a Schedule II Controlled Substance. He possessed an additional quantity of the drug at his college fraternity house. Thus the court was required to consider its duty to the public as well as to defendant before imposing sentence. State v. Warner, Iowa, 229 N.W.2d 776, 783. Although the presen-tence report suggested a deferred sentence was appropriate, such recommendation was not binding on the court. Additionally, in light of the fact the court suspended all but six months of the sentence, it is clear the report was properly considered. State v. Townsend, Iowa, 238 N.W.2d 351, 358; State v. Waterman, Iowa, 217 N.W.2d 621, 623.

We do not approve of the court’s remarks prior to imposing sentence. However, we do not find them to be so prejudicial as to warrant remand when considered in the context of the offense charged and the sentence imposed. Cf. State v. Nichols, Iowa, 247 N.W.2d 249.

We conclude trial court properly exercised its discretion in imposing the innovative sentence herein utilized. See State v. Rogers, Iowa, 251 N.W.2d 239.

AFFIRMED.

All Justices concur except McCORMICK, J., who concurs specially. REYNOLDSON and RAWLINGS, JJ., dissent.