STATE OF IOWA, Plaintiff-Appellee, vs. CHARLES EDWARD ROSS, Defendant-Appellant.

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IN THE COURT OF APPEALS OF IOWA No. 3-134 / 12-0979 Filed May 30, 2013 STATE OF IOWA, Plaintiff-Appellee, vs. CHARLES EDWARD ROSS, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge. A defendant appeals a criminal restitution order in three cases, contending the district court erroneously included amounts that were not part of a predischarge court-ordered restitution plan. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Robert W. Luedeman, Windsor Heights, for appellant. Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael Hunter, Assistant County Attorney, for appellee. Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ. 2 VAITHESWARAN, J. Charles Ross appeals a criminal restitution order, contending the district court erroneously included amounts that were not part of a pre-discharge courtordered restitution plan. I. Background Proceedings Ross was a defendant in three separate criminal proceedings, FECR 164800, FECR 175684, and FECR 181426. The district court imposed judgment and sentence in all three. The court entered a restitution order in FECR 164800. In the remaining two actions, the Department of Corrections prepared restitution plans, but the plans were not approved by the district court. Ross discharged all of his sentences between 2003 and 2006. Following his discharge, he requested a hearing on restitution the State was seeking to assess. After a hearing in 2012, the district court approved restitution amounts calculated by the clerk of court as follows: $481.93 in FECR 164800, $1966.25 in FECR 175684, and $4356.68 in FECR 181426. This appeal followed. At oral arguments on this appeal, the parties made several concessions concerning the state of the record and the issues to be decided. They further agreed their positions were essentially aligned. Based on these concessions, this court ordered Ross and the State to prepare a joint statement of stipulated facts and statement of outstanding issues. incorporated by reference. Their statement is attached and 3 II. Analysis Iowa Code chapter 910 (2005)1 addresses restitution. Section 910.1(4) defines restitution, as including pecuniary damages to a victim, fines, penalties, surcharges, court-appointed attorney fees, and court costs including correctional fees approved pursuant to section 356.7. The legal issue before us is whether the district court erred in assessing restitution that was not judicially approved prior to the discharge of Ross s sentences. See State v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010) (reviewing for correction of errors at law). Section 910.3 places the onus on the district court to determine the amount of a defendant s restitution obligation, based on statements furnished by the county attorney, clerk of court, and/or defendant: At the time of sentencing or at a later date to be determined by the court, the court shall set out the amount of restitution including the amount of public service to be performed as restitution and the persons to whom restitution must be paid. If the full amount of restitution cannot be determined at the time of sentencing, the court shall issue a temporary order determining a reasonable amount for restitution identified up to that time. At a later date as determined by the court, the court shall issue a permanent, supplemental order, setting the full amount of restitution. The court shall enter further supplemental orders, if necessary. These court orders shall be known as the plan of restitution. (Emphasis added.) Under this provision, a plan of restitution is a plan approved by a district court. The amounts of restitution in a restitution plan prepared by the Department of Corrections cannot be reduced to judgment absent approval by the district court. See Iowa Code § 910.3. 1 Although different years of the Iowa Code are applicable given the fact that three criminal matters are involved here, there were no material changes made to the applicable code sections during the relevant timeframe, and, therefore, the 2005 version of the Iowa Code will be referenced in this opinion. 4 As noted, FECR 1756854 and FECR 181426 included restitution plans prepared by the department that were never approved by the court. The amounts in those restitution plans could not be reduced to judgment against him.2 FECR 181426 also included a department restitution plan that was filed after Ross discharged his sentence. Section 910.7(2), addressing modification of restitution orders, states: After a petition has been filed, the court, at any time prior to the expiration of the offender s sentence, provided the required notice has been given pursuant to subsection 3, may modify the plan of restitution or the restitution plan of payment, or both, and may extend the period of time for the completion of restitution. (Emphasis added.) This provision precludes a post-discharge modification of a restitution plan. Read in conjunction with section 910.3, the provision also would necessarily preclude a district courts approval of an original plan of restitution after a defendant has discharged the sentence. Based on this law, the parties essentially concede that restitution included in department restitution plans that were not approved by the district court prior to the discharge of Ross s sentences cannot be assessed as restitution in a postdischarge order. They further concede the amounts of restitution ordered by the district court in FECR 175684 and FECR 181426 included sums that were not previously approved by the district court.3 They stipulate: 2 This conclusion relates only to the monetary amounts in the restitution plan. Substantive terms of supervision contained in restitution plans may be enforced during periods of parole or probation. 3 The parties concede the restitution sum assessed in FECR 164800 was the subject of a pre-discharge order and was appropriately assessed. 5 [T]he amounts of restitution that have been approved of by the district court for the three cases are as follows: FECR 164800 FECR 175684 FECR 181426 $481.93[4] $1,015.00 $125.00 Based on the parties stipulation and our review of the law, we conclude the district court assessed the correct amount of restitution in FECR 164800 but erred in including sums in FECR 175684 and 181426 that were not the subject of pre-discharge restitution orders. III. Disposition We affirm the 2012 restitution order as it pertains to FECR 164800 and reverse and remand for entry of restitution in the stipulated amounts in FECR 175684 and FECR 181426. We find it unnecessary to decide additional issues raised by the parties, namely whether the sheriff can recoup funds expended on room and board or whether additional costs that may result from post-discharge challenges may be recouped from Ross. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 4 The figure is slightly lower than the amount assessed by the district court in the 2012 order because Ross made restitution payments. A collection fee of $50.08 that Ross contended was added after his discharge date was in fact a collection fee for the Department of Revenue that was backed out of the clerk of court s restitution calculation adopted by the district court and is therefore not in dispute. 6 7 8 9 10 11 12 13 14 15 16 17 18

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