Opinion
No. 5-842 / 04-1696
Filed January 19, 2006
Appeal from the Iowa District Court for Muscatine County, Nancy S. Tabor, Judge.
The Iowa Department of Transportation challenges by writ of certiorari the validity of an order by the district court concerning license revocation. WRIT SUSTAINED.
Thomas J. Miller, Attorney General, Mark Hunacek, Assistant Attorney General, Gary Allison, County Attorney, and Alan R. Ostergren, Assistant County Attorney, for appellant.
David W. Newell, Muscatine, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
The Iowa Department of Transportation (IDOT) challenges by writ of certiorari the validity of a district court order concerning the effective date of a license revocation pursuant to Iowa Code section 910.5 (2003). Because we conclude the district court acted without authority in backdating the revocation, we sustain the writ.
I. Background Facts and Proceedings.
This challenge stems from the criminal conviction of Patricia Nichols for possession of a controlled substance on March 18, 2004, on which date the district court accepted Nichols's guilty plea and sentenced her. Nichols was placed on probation and ordered to appear before the district court on August 20, 2004, to show proof of her compliance with the terms of her probation. The district court's sentencing order did not address license revocation, despite the 180-day mandatory revocation under Iowa Code section 901.5(10) resulting from Nichols's conviction. The district court entered a subsequent order on August 26, 2004, directing the IDOT to revoke Nichols's driver's license for 180 days, with such revocation to begin at the date of first eligibility when all other revocations and suspensions had been terminated. Nichols's driving privileges had been suspended prior to March 18 and remained so through June 8, 2004, for non-payment of child support. On September 24, 2004, the district court entered a "clarification order" reciting that the judgment against Nichols was entered on March 18, which date the IDOT should use to begin computing the time for the revocation ordered pursuant to section 901.5(10). However, the IDOT issued an official notice to Nichols on October 6, 2004, that effective November 10, 2004, through May 9, 2005, her license would be revoked due to her drug related conviction of March 2004. The IDOT now challenges by writ of certiorari the validity of the September 24 order.
II. Discussion.
The IDOT asserts that the district court lacked the authority under Iowa Code section 901.5(10) to back date the September 24 order, setting March 18, 2004, as the effective date of Nichols's revocation. Certiorari is an action at law to test an action taken by the district court or other tribunal "alleged to have exceeded proper jurisdiction or otherwise acted illegally." Iowa R. Civ. P. 1.1401. Our review is therefore the same as from a judgment founded on a special verdict by a jury, on assigned errors of law. Baker v. Bd. of Adjustment, 671 N.W.2d 405, 414 (Iowa 2003). A court acts illegally when the court has not properly applied the law. Alons v. Iowa Dist. Ct., 698 N.W.2d 858, 863 (Iowa 2005).
Section 901.5(10) directs the sentencing court to order the IDOT to revoke for 180 days the driver's license of a person convicted of certain drug offenses. The statute also explicitly states: "If the person's operating privileges are suspended or revoked at the time of sentencing, the order shall provide that the one hundred eighty-day revocation period shall not begin until all other suspensions or revocations have terminated." Iowa Code § 901.5(10) (2003). Other than this limitation, the statute does not specify what date is to be used as the starting point for calculating the 180 days. However, it clearly does not authorize the sentencing court to retroactively date the revocation order, thereby reducing the 180-day revocation period.
It is uncontested that Nichols's driving privileges were already suspended on March 18 and would continue to be so through June 2004 for non-payment of child support. Therefore, the September 24 order essentially imposed a concurrent running of the section 901.5(10) revocation with Nichols's previous suspension, which directly contravenes the language of section 901.5(10). See also Iowa Dep't of Transp. v. Iowa Dist. Ct., 670 N.W.2d 114, 117 (Iowa 2003) (holding the district court acted illegally by retroactively dating and allowing concurrent running of a section 321J.4(4) revocation with a previous revocation, in effect impermissibly crediting the section 321J.4(4) revocation, when not allowed by statute); State v. Tuitjer, 385 N.W.2d 246, 247-48 (Iowa 1986) (holding the district court lacked the authority to credit a six-year revocation for two years of previous revocations served by the defendant, effectively nullifying the express mandate of the Code).
From the plain language of the statute, we conclude that the district court in this case acted without authority in the September 24, 2004 order by directing the IDOT to use March 18 as the effective date for Nichols's revocation under section 901.5(10). We sustain the writ of certiorari.