               IN THE SUPREME COURT OF IOWA
                            No. 98 / 05-1653

                          Filed March 21, 2008

STATE OF IOWA,

      Appellee,

vs.

MICHAEL BYRON ABRAHAMSON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Marion County, Dale B. Hagen

(dismissal of first trial information and arraignment on second trial

information), Jerrold Jordan (ruling on motion to dismiss), and Richard D.

Morr (trial and sentencing), Judges.



      The State seeks further review of a decision of the court of appeals

reversing the defendant’s conviction of manufacturing methamphetamine.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT

JUDGMENT REVERSED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant

Attorney General, Terry E. Rachels, County Attorney, and Douglas Eicholz,

Assistant County Attorney, for appellee.
                                      2

HECHT, Justice.

      This case is before us on further review of a court of appeals decision

reversing   defendant    Abrahamson’s      conviction    for   manufacturing

methamphetamine, under Iowa Code section 124.401(1) (2004). The court

of appeals concluded the conviction on the manufacturing charge must be

reversed because Abrahamson’s right to a speedy trial was violated on a

previous conspiracy-to-manufacture-methamphetamine charge arising from

the same facts. We agree that Abrahamson’s conviction cannot stand under

the circumstances presented here.

      I.    Background Facts and Proceedings.

      In the early morning of April 23, 2004, officers initiated a traffic stop

of a vehicle near Bussey, Iowa. When the officers stopped the car, Michael

Abrahamson was sitting in the front passenger seat. While questioning the

driver of the car, an officer observed Abrahamson reach down to the

floorboard of the car. The odor of ammonia emanating from the car was

overpowering, and officers discovered rubber tubing, a pair of leather gloves,
and a cold Tupperware bowl with a mixture containing methamphetamine

on the passenger side floorboard. The officers arrested the driver and
Abrahamson, and on April 30, 2004, the State filed a trial information (in

case number FECR020642) charging Abrahamson with conspiracy to

manufacture methamphetamine in violation of Iowa Code section

124.401(1)(b)(7).

      On July 28, 2004, the district court found good cause to delay the

trial for thirty-one days because Abrahamson had been in voluntary

inpatient drug treatment. Trial was rescheduled to begin August 25, 2004.

On August 13, 2004, the State moved to dismiss the conspiracy charge

without prejudice “in the interests of justice,” pursuant to Iowa Rule of
                                            3

Criminal Procedure 2.33(1). Although the State did not provide any specific

reasons for its assertion that the dismissal of the conspiracy charge was in

the furtherance of justice, the district court granted the motion the same

day without a hearing. The State also filed on the same day a two-count

trial information (in case number FECR020894) charging Abrahamson with

manufacturing methamphetamine (Count I) and conspiracy to manufacture

methamphetamine (Count II), based on the facts that formed the basis for

the April 23 arrest and the dismissed information in case number

FECR020642.

       Abrahamson filed a motion asserting the manufacturing and

conspiracy charges should be dismissed. He contended the conspiracy

count could not be refiled because it alleged an offense that had previously

been dismissed upon the State’s motion in case number FECR020642 for

the purpose of avoiding the speedy trial rule, and not in the furtherance of

justice. Abrahamson’s motion further asserted the manufacturing charge

must be dismissed because it was based on the same set of facts as the
dismissed       conspiracy        charge,       and     because        manufacturing

methamphetamine and conspiracy to manufacture that substance are
alternative means of committing the same offense in violation of Iowa Code

section 124.401(1).

       On April 4, 2005, another district court judge granted Abrahamson’s

motion to dismiss the conspiracy charge.                      The court reasoned

Abrahamson’s speedy trial rights were violated because the August 13,

2004 dismissal in case number FECR020642 was not shown to be “in the

furtherance of justice.”1 The court denied Abrahamson’s motion to dismiss

the manufacturing charge.

       1Iowa Rule of Criminal Procedure 2.33(1) authorizes the dismissal of a prosecution

in the furtherance of justice with “the reasons therefor being stated in the order and
                                            4

       A jury found Abrahamson guilty of manufacturing more than five

grams of methamphetamine, and the district court sentenced him to a

twenty-five-year indeterminate prison sentence and a $5000 fine.

Abrahamson appealed, contending the district court erred in denying his

motion to dismiss the manufacturing charge on speedy trial grounds.2 The

court of appeals reversed Abrahamson’s conviction. We granted the State’s

application for further review.

       II.     Scope of Review.

       Abrahamson claims he was denied his right to a speedy trial. Our

review is for correction of errors at law. State v. Miller, 637 N.W.2d 201, 204

(Iowa 2001).

       III.    Discussion.

       Our analysis of whether a charge is barred by a previous speedy trial

dismissal requires a two-step process. State v. Fisher, 351 N.W.2d 798, 801

(Iowa 1984) (citing State v. Moritz, 293 N.W.2d 235, 238 (Iowa 1980)). We

first determine whether the initial charge was dismissed “for speedy-trial

reasons, not in the ‘furtherance of justice.’ ” Id. If we answer that question

in the affirmative, we look to whether the subsequent charge is for the

“same offense” previously dismissed on speedy trial grounds. Id.

       A. Speedy Trial Dismissal. Prosecutions of criminal offenses in

Iowa “may be terminated only by public officers in accordance with
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entered of record.” Although the State’s motion alleged the requested dismissal was in the
“furtherance of justice,” it did not allege a factual basis for such a finding. The order
granting the State’s motion stated the relief was granted “for the reasons stated in the
State’s motion.”

       2In   a brief filed on appeal by his counsel, Abrahamson also contends the district
court erred by admitting evidence of prior bad acts and allowing a recording into evidence
in violation of the Confrontation Clause of the Sixth Amendment. Abrahamson raises nine
other issues in his pro se appellate brief. Because we conclude the district court erred in
failing to dismiss the manufacturing charge, we do not reach these issues.
                                      5

established procedures.” State v. Swallom, 244 N.W.2d 321, 324 (Iowa

1976). Iowa Rule of Criminal Procedure 2.33 prescribes the procedure by

which prosecutors may seek dismissal of pending charges without

prejudice:

      The court, upon its own motion or the application of the
      prosecuting attorney, in the furtherance of justice, may order
      the dismissal of any pending criminal prosecution, the reasons
      therefor being stated in the order and entered of record, and no
      such prosecution shall be discontinued or abandoned in any
      other manner. Such a dismissal is a bar to another prosecution
      for the same offense if it is a simple or serious misdemeanor;
      but it is not a bar if the offense charged be a felony or an
      aggravated misdemeanor.

(Emphasis added.) Under rule 2.33(1), after a dismissal in the furtherance

of justice, the same felony or aggravated misdemeanor charges may be

refiled. However, in order to obtain a valid dismissal in the interests of

justice (and the resulting benefit of a dismissal without prejudice), the State

must provide appropriate and sufficient reasons for the dismissal. State v.

Gansz, 403 N.W.2d 778, 780 (Iowa 1987) (noting “if it could be

demonstrated that the prior dismissal, regardless of its stated purpose, was

without adequate cause and that it impacted unfavorably upon a

defendant’s speedy trial rights, the resulting delay in prosecution would

warrant a dismissal”).

      A dismissal for failure to provide a speedy trial is an “absolute

dismissal, a discharge with prejudice, prohibiting reinstatement or refiling

of an information or indictment charging the same offense.”           State v.

Johnson, 217 N.W.2d 609, 612 (Iowa 1974) (stating that allowing the State

to refile the same charges following a speedy trial violation would “drain [the

speedy trial rule] of its effectiveness”) (citing Strunk v. United States, 412

U.S. 434, 438, 93 S. Ct. 2260, 2263, 37 L. Ed. 2d 56, 61 (1973); Barker v.
                                         6

Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 2188, 33 L. Ed. 2d 101, 112

(1972); Hilbert v. Dooling, 476 F.2d 355, 358 (2d Cir. 1973)).

       In its April 4, 2005 order, the district court dismissed with prejudice

the conspiracy charge in case number FECR020894 because the State had

failed to bring Abrahamson to trial on the conspiracy charge in case

number FECR020642 within the speedy trial deadline. The State has not

sought appellate review of that decision. Accordingly, we must determine if

the manufacturing charge in case number FECR020894 is the same offense

for speedy trial purposes as the conspiracy-to-manufacture charge that was

dismissed in case number FECR020642.

       B. Same Offense. In State v. Williams, 305 N.W.2d 428 (Iowa 1984),

the defendant was charged in a two-count information with possession of a

controlled substance with intent to deliver it and delivery of the substance

in violation of Iowa Code section 204.401(1) (1977).3 305 N.W.2d at 430.
The State subsequently sought and obtained, over Williams’s resistance,

leave to amend the information to allege in a third count that Williams also

engaged in a conspiracy to manufacture, possess with intent, and deliver

the same controlled substance. After he was convicted and sentenced on all
three counts, Williams claimed on appeal the district court erred in granting

leave to amend the information because the conspiracy charge was a

“wholly new and different offense.”           See Iowa R. Crim. P. 2.4(8)(a)

(precluding amendment of the information “if substantial rights of the

defendant are prejudiced, or if a wholly new and different offense is

charged”). We rejected that claim, reasoning the conspiracy charge did not

allege a new offense, but merely “[an alternative] means of committing the


        3Iowa Code section 204.401(1) (1977) was the predecessor to the current drug

trafficking statute, section 124.401(1).
                                             7

same offense” of drug trafficking. Williams, 305 N.W.2d at 431. Based on

the same reasoning, we vacated the judgment and remanded the case for

resentencing on a single drug trafficking offense because the district court

erred in sentencing Williams for three offenses. Id. at 434.

       The court of appeals relied on the Williams decision in deciding the

conspiracy and manufacturing counts in the information filed against

Abrahamson alleged alternative means of committing one offense. The

court concluded just as the dismissed conspiracy charge could not be

refiled as a consequence of a violation of Abrahamson’s speedy trial rights,

the conviction of manufacturing methamphetamine cannot stand because it

constitutes an alternative means of committing the same offense: a violation

of Iowa Code section 124.401(1).

       The State contends the court of appeals erred in relying on Williams

because the analytical framework used in determining whether the offenses

are the same for speedy trial purposes should differ from the one applied in

determining whether amendments to trial informations should be granted.
The State urges us to adopt a “same elements” test (sometimes called the

“legal elements” test and employed in the identification of lesser included
offenses, see State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995)) for the

resolution of speedy trial “same offense” issues. See Blockburger v. United

States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932).

Under the Blockburger analysis, the court would determine whether two

offenses were the “same” by comparing the elements of proof required for

each offense. Id.

       We confronted the question whether charges were the “same offense”

for speedy trial purposes in State v. Moritz, 293 N.W.2d 235 (Iowa 1980).4 In

      4The speedy trial statute considered in Moritz, Iowa Code section 795.2 (1977), was

substantially identical to the current speedy trial rule, rule 2.33(2)(b), with the exception
                                              8

Moritz, the State filed an information claiming the defendant violated Iowa

Code sections 739.10 (1977) (accepting award for public duty) and 740.1

(extortion) on January 7, 1977, and engaged in a conspiracy to commit

those crimes in violation of section 719.1. The State’s motion to dismiss the

information “in the interests of justice” was sustained by the court. The

State later filed a new information alleging Moritz accepted an award for

public duty on April 5, 1977, in violation of section 739.10 and engaged in a

conspiracy to do so.         In our decision on Moritz’s appeal following his

conviction on both charges, we concluded the conspiracy charge must be

dismissed because it alleged the same offense (conspiracy) charged in the

earlier information; and its refiling violated Moritz’s right to a speedy trial.

We held, however, the other charge (accepting an award for public duty in

violation of section 739.10) was not vulnerable to Moritz’s motion to dismiss

based on the speedy trial rule because it alleged a different offense

committed on a different date than the offense charged under the same

statute in the dismissed information.
       Our decision in Moritz noted the “same offense” test applied in the

speedy trial context focuses on whether the “ ‘two offenses are in substance
the same, or of the same nature, or same species, so that the evidence

which proves one would prove the other.’ ” 293 N.W.2d at 238–39 (quoting

State v. Stewart, 223 N.W.2d 250, 251 (Iowa 1974)). Applying this test, we

held the conspiracy count that alleged the same conspiracy as that charged

in the previously dismissed trial information was the same offense for

speedy trial purposes. Id. at 239. We therefore reversed Moritz’s conviction

on the refiled conspiracy charge, but we affirmed his conviction on the other

charge.
___________________________
that it required a trial within sixty days of the filing of an indictment or trial information
rather than ninety days.
                                        9

        The Moritz analysis is neither controlling nor instructive in this case.

Unlike Abrahamson, the appellant in Moritz did not claim the two charges

(accepting an award for public duty, and engaging in a conspiracy to do so)

based on statutes in different code chapters were alternative means of

committing the same offense. Thus we had no occasion in that case to

consider whether the conspiracy charge and the “accepting an award for

public duty” charge were the same offense for purposes of the speedy trial

rule.   Indeed, the conspiracy charge in that case was filed under the

separate conspiracy statute5 that appeared in a different code chapter than
the other offense with which Moritz was charged.            In sharp contrast,

Abrahamson was charged with both manufacturing a controlled substance

and conspiracy to commit that crime under a single statute, Iowa Code

section 124.401(1). The legislature’s prohibition of drug conspiracies and

other drug trafficking offenses in that single code section led us in Williams

to conclude one commits a single criminal offense by manufacturing a

controlled substance and engaging in a conspiracy to manufacture that

same substance.       Williams, 305 N.W.2d at 431.          We reaffirmed this

conclusion in State v. Maghee, 573 N.W.2d 1, 7 (Iowa 1997) (holding that as
conspiracy is an alternative means of violating section 124.401(1),

defendant could not be sentenced for both conspiracy and possession of

illegal substance with intent to deliver).

        As the State correctly notes, our decision in Williams did not address

whether manufacturing and conspiracy counts arising from a common set

of facts, and charged under section 124.401(1), are one offense for purposes

of determining whether a dismissal with prejudice of one of them under rule

2.33 bars the refiling of both of them. We now answer that question in the

      5The defendant in Moritz was charged with conspiracy under Iowa Code chapter

719. That statute has since been renumbered and now appears in chapter 706.
                                     10

affirmative.    We    find   unpersuasive    the   State’s   contention   that

manufacturing and conspiracy should be viewed as one offense in

furtherance of the State’s interest in amending an information, but be

viewed as separate offenses when defendants seek to enforce their right to a

speedy trial.

      The State contends our decision in State v. Lies, 566 N.W.2d 507

(Iowa 1997), should lead us to a different conclusion. In that case, the

defendant was initially arrested and a complaint was filed against him

charging burglary in the second degree. 566 N.W.2d at 507. Fifty-five days

later, the State filed an information charging the defendant with conspiracy

to commit a burglary. The defendant filed a motion under the speedy

indictment rule, contending the information must be dismissed because he

was not indicted within forty-five days after his arrest. See Iowa R. Crim. P.

2.33(2)(a) (requiring, in the absence of good cause, dismissal of a charge if

defendant is not indicted within forty-five days after arrest).       A jury

acquitted the defendant on the burglary charge, but convicted him on the
conspiracy charge. We concluded on appellate review the defendant’s right

to a speedy indictment was not violated because conspiracy to commit
burglary was not the same offense as the burglary for which the defendant

was arrested. We noted the defendant was charged with conspiracy under

Iowa Code section 706.1; and that Iowa Code section 706.4 expressly

provides “[a] conspiracy to commit a public offense is an offense separate

and distinct from any public offense which might be committed pursuant to

such conspiracy.” As we have noted, Abrahamson was not charged with

conspiracy under chapter 706. He was instead charged under section

124.401(1) which identifies conspiracy as one of several alternative means
                                            11

of committing the offense of drug trafficking. Thus, the rule announced in

Lies is not dispositive here.

       The State also relies on our decision in State v. Fintel, 689 N.W.2d 95

(Iowa 2004), in support of its assertion that conspiracy and manufacturing

should be viewed as separate offenses under section 124.401(1) for speedy

trial purposes. Fintel was charged with both conspiracy to manufacture

methamphetamine and manufacturing methamphetamine. 689 N.W.2d at

100–01.     A jury found Fintel not guilty of manufacturing a controlled

substance, but guilty of conspiracy to manufacture. We rejected on appeal

Fintel’s assertion that these verdicts were fatally inconsistent, reasoning

that conspiracy and manufacturing are alternative means of committing a

single offense under the drug trafficking statute.                It was consequently

possible that Fintel could be acquitted of manufacturing a controlled

substance, but be convicted on the conspiracy alternative which required no

proof of completed manufacture, and we therefore upheld Fintel’s

conviction. Id. Our decision today is consistent with our reasoning in
Fintel, because it reaffirms the proposition that manufacturing and

conspiracy are alternative means of committing a single offense under
section 124.401(1).6
       Under the interpretation favored by the State, all of the “alternatives”

listed in section 124.401(1)—a total of at least thirty-six—would constitute

separate crimes because they would require proof of different elements. As

       6Although   our holding in this case is consistent with the fundamental principle that
section 124.401 defines one offense, drug trafficking, and enumerates numerous
alternative means of committing it, it should be noted that Fintel does not control our
disposition in this case. There was no speedy trial violation in Fintel, a case in which both
manufacturing and conspiracy alternatives were submitted to the jury. Fintel, 689 N.W.2d
at 100. In sharp contrast, the conspiracy charge against Abrahamson was dismissed with
prejudice as a consequence of a speedy trial violation before the manufacturing charge was
submitted to the jury.
                                              12

the alternatives would no longer be considered the “same offense,” the

Williams merger rule would not apply, and a defendant could therefore be

charged with, convicted of, and sentenced for, multiple violations of section

124.401(1).      Our contrary interpretation of the statute as a measure

enumerating alternative means of committing the singular offense of drug

trafficking has been extant for more than twenty-five years.                               The

legislature’s failure to amend the statute to enumerate multiple offenses

suggests our understanding of the statute comports with the intent of the

drafters. See Iowa Dep’t of Transp. v. Soward, 650 N.W.2d 569, 574 (Iowa

2002) (legislature’s failure to “correct” this court’s interpretation of a statute

is entitled to considerable weight).

       We have yet another concern about the consequences of the

interpretation of section 124.401(1) advanced by the State. It would permit,

if not encourage, the piecemeal prosecution of drug trafficking charges as a

means of avoidance of the time-honored constraints of our speedy trial rule.

For example, under the State’s interpretation, the dismissal of the
conspiracy charge as a penalty for violation of Abrahamson’s right to a

speedy trial would be of insubstantial consequence to the State because the
manufacturing charge would stand in ready reserve to be charged as a

separate offense.7 Such an interpretation would undermine the salutary

purposes of the speedy trial rule. See Johnson, 217 N.W.2d at 612 (noting

the remedy afforded by a dismissal with prejudice for violation of the speedy

trial rule assures that the rule will not be rendered meaningless).

       7Given  the large number of discrete offenses defined in section 124.401(1) under the
State’s interpretation, it is conceivable that the State could, as a matter of strategy, file an
information but hold in reserve several alternative offenses in cases involving alleged
manufacturing, possession and delivery of controlled substances. In drug trafficking cases
involving multiple individuals, the potential array of such offenses available “in reserve”
would of course be even greater under the State’s interpretation of the rule, as a conspiracy
offense might have been committed in such cases.
                                    13

      Accordingly, the court of appeals correctly concluded Abrahamson’s

manufacturing conviction must be reversed.

      IV.     Conclusion.

      Abrahamson was charged with alternative means of violating section

124.401(1):     manufacturing   methamphetamine       and   conspiracy   to

manufacture the same substance. The conspiracy charge was dismissed

with prejudice as a consequence of a violation of Abrahamson’s right to a

speedy trial. Because the manufacturing charge alleged the same offense—

a violation of section 124.401(1) arising from the same facts—it, too, must

be dismissed.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT

JUDGMENT REVERSED.

      All justices concur except Streit, J., who takes no part.
