Appeal from the Iowa District Court for Polk County, Douglas Staskal, Judge.
The opinion of the court was delivered by: Vogel, P.J.
A defendant appeals from a district court order denying his motion to tax costs. REVERSED AND REMANDED.
Heard by Vogel, P.J., and Potterfield and Doyle, JJ.
Thomas Wheeler appeals from a district court order denying his motion to tax costs after he was acquitted by a jury of eight felony counts and found guilty of one count. He asserts the district court erred in taxing all court costs to him, including the costs of depositions and transcripts. The State argues Wheeler has waived error on his claims because he has failed to provide an adequate record on appeal. In the alternative, the State claims he should bear all costs because he was not a "winning party." We find the court costs should be taxed to both parties, and therefore, we reverse and remand.
I. Background Facts and Proceedings
Wheeler was charged in a nine-count trial information arising from his conduct with the Iowa Department of Economic Development and the tax credits for the film industry found in Iowa Code section 15.393 (2009). These nine counts consisted of four counts of felonious misconduct in office, four counts of fraudulent practice in the first degree, and one count of conspiracy to commit theft and fraudulent practices. After a lengthy jury trial, Wheeler was found guilty on one count of felonious misconduct in office, in violation of Iowa Code sections 721.1(2) and (3) (2011), a class "D" felony, and acquitted of the remaining eight counts. Judgment was deferred and Wheeler was placed on probation for two years. A civil penalty of $750 was imposed, and he was ordered to pay restitution in an amount to be determined in a supplemental order, which would include court costs, fees, and surcharges. Wheeler submitted a restitution repayment plan detailing his obligation to pay the $750 civil penalty and $7935.86 in court costs by making monthly payments of $394.82.*fn1 On November 18, Wheeler filed a motion to amend the court order seeking to "proportionally tax the costs to the [State] by a ratio of 1/9 [sic] of the costs to Wheeler and 8/9 [sic] of the costs to the State." He also requested the costs of court reporters, transcripts, and depositions be taxed proportionately to the State.
The district court denied Wheeler's requests, citing Iowa Code section 910.2, which requires assessment of court costs against a defendant in any criminal case "in which there is a . . . verdict of guilty." The district court reasoned "even in a multi-count civil case, a defendant found liable on only one of the counts would be regarded as the 'losing' party and would be responsible for costs." Wheeler appealed. The State moved to dismiss the appeal because Wheeler was given a deferred judgment, which is not a "final judgment of sentence" under Iowa Code section 814.6(1)(a) and therefore carries no statutory right to appeal. Our Supreme Court denied the State's motion, and the notice of appeal was treated as an application for discretionary review. See State v. Stessman, 460 N.W2d 461, 464 (Iowa 1990) (providing in order to appeal from a restitution order after entry of a deferred judgment, the proper route for review is an application for discretionary review, allowing for review without upsetting the final judgment requirement).
II. Standard of Review and Issue Preservation
As statutory construction is involved, our review is on error. State v. Dudley, 766 N.W.2d 606, 612 (Iowa 2009). Moreover, our review of a restitution order is for correction of errors at law. Teggatz v. Ringleb, 610 N.W.2d 527, 529 (Iowa 2000).
The State claims because "there is nothing to substantiate the amount of court costs and what sources they are derived from," Wheeler has failed to provide us a record affirmatively disclosing the error relied upon, and the error is therefore waived. As we are engaging in statutory interpretation, the exact amount of costs is not critical to our decision.
Wheeler first argues the district court erred in taxing all of the court costs to him. Iowa Code section 910.2 mandates in part, "In all criminal cases in which there is a . . . verdict of guilty . . . the sentencing court shall order that restitution be made . . . to the clerk of court for fines, penalties, surcharges . . . [and] court costs." This court has held the rationale behind section 910.2 is similar to the rationale of tort under civil law; a wrong has been done, and the victim deserves to be fully compensated for the injury by the actor who caused it. State v. Ihde, 532 N.W.2d 827, 829 (Iowa Ct. App. 1995). Our supreme court has held "the obvious purpose of Iowa Code chapter 910 is to compensate the victim and serve the functions of deterrence and rehabilitation of the offender." State v. Bonstetter, 637 N.W.2d 161, 166 (Iowa 2001). In addition, section 815.13 provides in pertinent part "fees and costs are recoverable by the county or city from the defendant unless the defendant is found not guilty or the action is dismissed."
Wheeler relies on State v. Petrie, 478 N.W.2d 620, 621-22 (Iowa 1991), in which our supreme court, after noting it would not "search for a different meaning when the statutory language is clear" determined:
The provisions of Iowa Code section 815.13 and section 910.2 clearly require, where the plea agreement is silent regarding the payment of fees and costs, that only such fees and costs attributable to the charge on which a criminal defendant is convicted should be recoverable under a restitution plan. Consequently, the district court should have limited the restitution order in this case to requiring the defendant to pay court costs and fees attributed to his conviction of driving while barred. Expenses clearly attributed to other charges such as attorney fees connected with the suppression issues should not be assessed against the defendant. Fees and costs not clearly associated with any single charge ...