                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-2114
                              Filed January 25, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FREDERICK JOSEPH OLSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, James M.

Drew, Judge.



       Frederick Joseph Olson appeals from an order resentencing him for

burglary in the third degree as an habitual offender.            JUDGMENT AND

SENTENCE VACATED AND REMANDED WITH DIRECTIONS.



       Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



       Considered by Vogel, P.J., Tabor, J., and Goodhue, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.

       Frederick Joseph Olson appeals from an order resentencing him for

burglary in the third degree as an habitual offender.

       I.     Facts and Course of Proceedings

       The facts that lead to the charges for which Olson was convicted are not

at issue before the court.     Olson was initially charged in two different trial

informations. One charged him with burglary in the third degree, as an habitual

offender, and possession of burglary tools. The other trial information charged

him with an attempt to commit murder and burglary in the first degree. A plea

agreement was reached under which Olson was to plead guilty to burglary in the

third degree, as an habitual offender, and the attempt-to-commit-murder charge

was to be amended to interference with official acts while displaying a dangerous

weapon, as an habitual offender.       The State was to recommend a term of

incarceration not to exceed fifteen years on each of the charges, recommend the

sentences run concurrently, and dismiss all other charges. The State amended

the attempt-to-commit-murder charge and dismissed the remaining charges,

Olson entered guilty pleas and the State recommended the sentences as agreed,

and the district court sentenced Olson accordingly.

       Olson appealed, claiming there was no factual basis for the interference

charge and his counsel was ineffective for failing to raise the issue or file a

motion in arrest of judgment. Olson’s claims were found to have merit, and the

Iowa Court of Appeals vacated the conviction on the interference charge.

Because the State had dismissed additional charges in exchange for Olson’s

pleas, this court held that if a factual basis could not be established for the
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interference charge, the district court should also vacate the burglary conviction

to return the State to the position it had been in before entering the plea

agreement. State v. Olson, No. 14-1352, 2015 WL 1848694, at *1 (Iowa Ct. App.

Apr. 22, 2015). This allowed the State to reinstate any charges or sentence

enhancements it dismissed in contemplation of the plea agreement and file any

additional charges supported by the evidence. Id.

       On remand, a factual basis could not be established for the charge of

interference with official acts while displaying a dangerous weapon. The district

court sentenced Olson to an indeterminate term of incarceration not to exceed

fifteen years on the enhanced third-degree-burglary conviction.         The State

dismissed the remaining charges. Olson objected emphatically to the sentence

and maintained the trial court was obligated to vacate the enhanced burglary

conviction.

       II.    Error Preservation

       The State does not contest error preservation.

       III.   Standard of Review

       The standard of review is for errors at law. See State v. Pearson, 876

N.W.2d 200, 204 (Iowa 2016).

       IV.    Discussion

       A mandate to the district court contained in the decision of an appellate

court becomes a law of the case on remand. Id. If the district court fails to

interpret it correctly or acts inconsistently with the mandate, it exceeds its

jurisdiction. Id. It is the duty of the district court to uncover the intent of the

appellate court. Id.
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      Olson contends that when the State was unable to establish the factual

basis on the interference charge, the district court was obligated to vacate the

burglary conviction. The State maintains it had the option to leave the conviction

on the burglary charge and dismiss the additional charges when it determined

the factual basis on the interference charge could not be made.         The State

considered the burglary charge to have been disposed of by Olson’s plea of

guilty pursuant to the original plea agreement, dismissed all of the other charges,

and waived the filing of any new charges against Olson. The State takes the

position that there was no need for the district court to dismiss the burglary

charge because the State adhered to the original plea agreement with regard to

the dismissal of all additional charges. The district court apparently took the

same position.

      On direct appeal, this court did not allow for such an option. When a

district court proceeds contrary to an appellate court’s remand order, its decision

must be treated as null and void. In re Marriage of Davis, 608 N.W.2d 766, 769

(Iowa 2000). When a factual basis could not be developed on the interference

charge, the entire plea bargain was invalidated—including Olson’s plea to the

burglary count. See State v. Allen, 708 N.W.2d 361, 369 (Iowa 2006). If no

factual basis for the interference could be established, the stated purpose of the

remand was to return the State to the position it was in before entering the global

plea agreement. It is also fair to infer this court intended to return Olson to the

same position he was in before entering the global plea agreement, except for

the dismissal of the interference charge. By leaving the plea and conviction for

the enhanced burglary charge in place, Olson was not returned to the same
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position he held prior to the plea agreement.       He should have the option to

renegotiate a new plea agreement on the enhanced burglary charge without the

interference charge in play or to stand trial on the burglary charge, if he so elects.

       It has now been established that there is no factual basis for the

interference charge. Putting the parties back in the same position as they were

requires that the judgment and sentence entered on the burglary charge be

vacated, and the State be given the opportunity to reinstate any dismissed

charges and file any additional charges the evidence warrants. The judgment

and sentence entered on the enhanced-burglary charge are hereby vacated, and

the matter is remanded with directions.

       JUDGMENT AND SENTENCE VACATED AND REMANDED WITH

DIRECTIONS.
