Brown v. State , 297 N.W.2d 101 ( 1980 )

McCORMICK, Justice.

The question here is whether a probation revocation must be voided because of unnecessary delay in bringing the alleged violator before a magistrate for an initial appearance after his arrest on the information alleging the probation violation. Applicant Donald H. Brown challenged revocation of his probation by postconviction action. See State v. Halsne, 219 N.W.2d 657 (Iowa 1974). The trial court denied relief, and this appeal followed. We affirm.

The relevant facts are stipulated. In September 1978 Brown pleaded guilty to second-degree burglary in violation of sections 713.1 and .3, The Code, and was sentenced under section 902.9(3) to ten years’ confinement, granted probation and further ordered committed under section 907.3(2) to a community correctional residential treatment facility in Council Bluffs. In January 1979 he failed to return to the facility following a weekend furlough. A warrant was issued under sections 908.1 and .11 for his arrest for probation violation. He was arrested and placed in the Audubon County jail on February 16. On March 2 Brown was first taken before a magistrate. The procedures provided in section 908.2 were then followed. The merits of the violation charge were subsequently heard. Following the hearing, the court revoked Brown’s probation and ordered him to serve his sentence.

The parties agree that no excuse exists for the two-week delay in taking Brown before a magistrate for his initial appearance after his arrest on the information charging him with probation violation. They agree that magistrates were accessible and available during this period.

Probation revocation proceedings are governed by section 908.11. That provision makes procedures for parole revocation applicable to probation revocation. This means the initial appearance provision of section 908.2 applies to probation revocation proceedings. “Unnecessary delay” has the same definition in probation revocation proceedings that it does in parole revocation proceedings, and the consequence for violating the provision is the same in each situation.

This case is therefore governed by our holding in State v. Dowell, 297 N.W.2d 93 (Iowa 1980), filed separately this date, in which we held that an alleged parole violator does not have a right to have the proceedings against him dismissed with prejudice for unnecessary delay in bringing him before a magistrate for an initial appearance in violation of section 908.2.

Even though section 908.2 was violated in this case, the remedy which Brown seeks in this postconviction action is not available to him.

We hold that the trial court did not err in refusing to set aside the probation revocation.

AFFIRMED.

All Justices concur except McGIVERIN, J., and REYNOLDSON, C. J., who dissent, and SCHULTZ, J., who takes no part.