                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0482
                               Filed July 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT LEE PATE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,

Judge.



      Robert Lee Pate appeals the denial of his request for credit for time

served. AFFIRMED.




      Mark D. Reed of Marbarry Law Firm, P.C., Urbandale, for appellant.

      Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., Mullins, J., and Mahan, S.J.*

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

       Robert Pate appeals the denial of his request for credit for presentence

time served on his fifty-year sentence for possession of a controlled substance

with intent to deliver as a second or subsequent offender. Pate was arrested in

2007 after a large amount of crack cocaine was found in his possession. The

State dismissed the charges without prejudice on November 13, 2007, when the

federal government indicted Pate on one count of possession with intent to

distribute at least fifty grams of crack cocaine. After the federal prosecution was

dismissed in 2009, the State re-filed complaints identical to those filed in 2007.

       Following his conviction and sentence, Pate filed a request for credit for

time served from the time of his 2007 arrest until sentencing, which the district

court denied. On appeal, Pate contends he is entitled to credit for time served

before sentencing under Iowa Code section 903A.5 (2011), which states:

       If an inmate was confined to a county jail, municipal holding facility,
       or other correctional or mental facility at any time prior to
       sentencing, or after sentencing but prior to the case having been
       decided on appeal, because of failure to furnish bail or because of
       being charged with a nonbailable offense, the inmate shall be given
       credit for the days already served upon the term of the sentence.

Pate argues he is entitled to credit for the entire time he remained incarcerated in

a jail facility or correctional facility during “successive prosecution for the same

offense” by different governmental units.

       We conclude Pate is not entitled to credit for time served prior to

sentencing. Even assuming, without deciding, that Pate could receive a credit for

time served while the State and federal government pursued charges against him

that were later dismissed, Pate does not meet the criteria for credit set forth in
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section 903A.5 because upon his arrest in 2007, Pate’s parole on a twenty-five

year, suspended sentence for an unrelated charge was revoked. During the time

Pate faced prosecution on all state and federal charges filed against him, he was

serving this sentence. As such, Pate was not confined to a jail or correctional

facility because of failure to furnish bail or being charged with a nonbailable

offense. See State v. Johnson, 167 N.W.2d 696, 701 (Iowa 1969) (holding a

defendant who was incarcerated on an unrelated conviction while facing new

charges was not confined because of failure to furnish bail or because of being

charged with a nonbailable offense but “because of another conviction”); see also

State v. Orte, 540 N.W.2d 435, 438 (Iowa 1995) (holding a defendant convicted

of homicide by vehicle was not entitled to credit for presentence time spent in jail

when defendant bonded himself out on homicide-by-vehicle charge and served

jail time on an unrelated drug conviction because of a probation violation).

Because Pate’s sentences for his unrelated conviction and the present one were

ordered to run consecutively rather than concurrently, no credit is available.1

Compare Johnson, 167 N.W.2d at 701 (holding a defendant confined on an

unrelated charge prior to sentencing is not entitled to credit in both cases where

the sentences are consecutive), with State v. Harrison, 468 N.W.2d 215, 217-18

(Iowa 1991) (allowing presentence credit for time spent in jail on unrelated

charge when sentences were ordered to run concurrently).              Accordingly, we

affirm the denial of his request for credit for time served.

       AFFIRMED.

1
 The record indicates the time served is properly being credited to the twenty-five year
sentence on his prior conviction.
