STATE v. DESPENAS (2001)

This appeal presents the question whether a person convicted of possession of a controlled substance under Iowa Code section 124.401(5) (1999) can be sentenced as a second offender under the enhanced sentencing provisions of the subsection based upon a 1979 conviction for possession of a controlled substance when the crime was defined under section 204.401(3) (1977).   We conclude the prior conviction can be used to elevate the offense and enhance the sentence.   We affirm the judgment of conviction and sentence of the district court.

Rick Despenas was charged with various drug offenses after police seized small amounts of methamphetamine and marijuana from his residence during the execution of a search warrant.   On December 7, 1999, Despenas pled guilty to a single count of possession of a controlled substance as a second offense in violation of section 124.401(5).   He was subsequently sentenced to a term of incarceration not to exceed two years.   Despenas was previously convicted of possession of a controlled substance on January 2, 1979.

On appeal, Despenas claims the district court erred by elevating the offense to an aggravated misdemeanor under the enhancement provisions of section 124.401(5).   He claims section 124.401(5) specifically limits the enhancement sentencing provisions to prior convictions under section 124.401(5), and his prior conviction occurred when the offense was designated under section 204.401(3).

In State v. DeCamp, 622 N.W.2d 290 (Iowa 2001), decided on this date, we held that a prior conviction for the crime of possession of a controlled substance in violation of section 124.401(5) or any predecessor section or subsection could be considered in applying the enhanced sentencing provisions of section 124.401(5).   This holding is dispositive of the claim raised by Despenas in this case.   Based on the rationale we expressed in DeCamp, we conclude Despenas was properly sentenced as a second offender.

AFFIRMED.

PER CURIAM.