                   IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0980
                                 Filed April 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WILLIAM LEWIS KINNEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.



      William Lewis Kinney appeals from his conviction for assault with intent to

commit sexual abuse, arguing the district court erred in denying his motion to

dismiss based upon his speedy indictment rights. AFFIRMED.



      Van M. Plumb of Plumb Law Firm, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, John P. Sarcone, County Attorney, and Steven Foritano, Assistant

County Attorney, for appellee.



      Considered by Potterfield, P.J., Doyle, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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POTTERFIELD, P.J.

          William Lewis Kinney appeals from his conviction for assault with intent to

commit sexual abuse. He argues the district court improperly denied his motion

to dismiss on speedy indictment grounds. We affirm, finding Kinney’s speedy

indictment rights were not violated.

    I.    Facts and proceedings.

          Kinney’s claim is based upon our speedy indictment rule, which gives him

the right to have a trial information filed against him within forty-five days of his

arrest:

                  2.33(2) Speedy trial. It is the public policy of the state of Iowa
          that criminal prosecutions be concluded at the earliest possible time
          consistent with a fair trial to both parties.            Applications for
          dismissals under this rule may be made by the prosecuting attorney
          or the defendant or by the court on its own motion.
                  a. When an adult is arrested for the commission of a public
          offense, or, in the case of a child, when the juvenile court enters an
          order waiving jurisdiction pursuant to Iowa Code section 232.45,
          and an indictment is not found against the defendant within 45
          days, the court must order the prosecution to be dismissed, unless
          good cause to the contrary is shown or the defendant waives the
          defendant’s right thereto.

Iowa R. Crim. P. 2.33.

          On October 23, 2012, Kinney was incarcerated for a parole violation1 in

the Newton Correctional Facility. On October 30, 2012, Kinney was notified he

would be allowed to attend the Fort Des Moines work release program. Shortly

thereafter, Kinney was informed a preliminary complaint might be filed against

him in an unrelated matter. On November 2, 2012, Polk County authorities filed

a preliminary complaint and issued a warrant against Kinney in Polk County for


1
    The parole violation was not related to the charges at issue in this case.
                                        3


an act of sexual abuse. As a result, a “hold” was placed on Kinney on November

14, 2012, by an administrative law judge preventing Kinney from participating in

the work release program.

       On January 11, 2013, Kinney filed a motion to dismiss the Polk County

charges on speedy-indictment grounds, claiming the November 2nd actions

amounted to an “arrest” triggering the deadline of rule 2.33(2)(a).         Kinney

appeared on the charge in Polk County on January 29, 2013. A trial information

charging Kinney was filed February 8, 2013, more than forty-five days after the

warrant issued.

       A hearing was held February 22 on the motion to dismiss, and the district

court denied the motion on March 11. Kinney filed a motion to reconsider, which

was also denied. Kinney stipulated to trial on the minutes and was found guilty

and sentenced June 3, 2013. He appeals.

 II.   Analysis.

       Our review is for the correction of errors at law, “we are bound by findings

of fact supported by substantial evidence.” State v. Beeks, 428 N.W.2d 307, 308

(Iowa Ct. App. 1988). Kinney argues he was in custody for purposes of the

speedy indictment rule when the Polk County preliminary criminal complaint was

filed and his work release suspended. The success of his argument depends, at

least in part, on the fact Kinney was in state custody—not Polk County custody—

at the time the Polk County warrant issued, making his situation multi-

jurisdictional.

       We note preliminarily that this case is not governed by State v.
       Eichorn, 325 N.W.2d 95, 96–97 (Iowa 1982). In that case this court
       held that when authorities bring a new charge against a person
                                          4


       already in their custody, the time of arrest for purposes of rule
       27(2)(a) is deemed to be the time the new charge is filed. In the
       present case defendant was not in the custody of Tama County
       authorities when the charge was brought there. Therefore she
       could not be deemed to be “arrested” by the mere bringing of the
       Tama County charge.

State v. Boelman, 330 N.W.2d 794, 795 (Iowa 1983); see also Beeks, 428

N.W.2d at 309 (“We agree with the trial court that defendant was not arrested on

the Story County charges until he submitted to the custody of the Story County

Sheriff . . . . Defendant was under arrest on the Hamilton County charges while

he was detained at the Webster County Jail.”). In Beeks, as here, the defendant

was placed on hold and informed of the charge and warrant more than forty-five

days before the trial information was filed.      428 N.W.2d at 308.        Our court

expressly rejected the argument that this action started the clock for the speedy

indictment period, noting, “A person not in the custody of county authorities is not

arrested by the mere bringing of a charge in that county.” Id. at 309.2

       Kinney’s argument centers on the suspension of his work release—his

anticipated freedoms were curtailed, he argues, and therefore, the suspension as

triggered by the Polk County preliminary complaint and warrant constituted an

arrest. Beeks involved a request by a second county that the first county put the

defendant on a “hold.” Id. at 308. We did not consider, and do not find now, that

a hold or revocation of work release by a different jurisdiction transforms the

incarceration into an arrest by another county.

       We agree with the district court that Boelman and Beeks are controlling in

this case. Kinney was not in the custody of Polk County when he was informed

2
  Kinney makes no argument distinguishing the facts of this case based on his custodial
status with the State rather than a different county.
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of the hold, the warrant issued, and the preliminary complaint submitted. He was

not arrested on the Polk County charges by the hold. We affirm the district court.

      AFFIRMED.
