Appeal from the Iowa District Court for Polk County, Bradley McCall (trial and sentencing) and Karen A. Romano (restitution hearing), Judge.
The defendant appeals from the district court's order confirming restitution following her conviction for simple misdemeanor animal neglect.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, John Sarcone, County Attorney, and Celene Gogerty, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
We must decide whether this appeal of a restitution order should be dismissed.
I. Background Proceedings
Nadia Jones picked up a dog belonging to someone else. The dog became ill in her care and a veterinarian ultimately euthanized it, with the owner's permission.
The State charged Nadia Jones with the serious misdemeanor version of animal neglect, an indictable misdemeanor. A jury found Nadia Jones guilty of the lesser included simple misdemeanor version of animal neglect. The district court adjudged her guilty, deferred sentence, and placed Jones on probation for twelve months. The court also ordered restitution in an amount "to be determined." Jones did not seek discretionary review of the conviction. See Iowa R. Crim. P. 2.73(1) (authorizing appeal to district court from simple misdemeanor conviction); Tyrrell v. Iowa Dist. Ct. 413 N.W.2d 674, 675 (Iowa 1987) (holding defendant charged with indictable misdemeanor but found guilty of simple misdemeanor had no right of appeal to the district court but could seek discretionary review of the conviction by the Iowa Supreme Court).
Three-and-one-half months later, the State moved to amend the sentence to include restitution. See Iowa Code § 910.3 (2009) ("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." (emphasis added)); see also State v. Blakely, 534 N.W.2d 645, 648-49 (Iowa 1995) (concluding the statutory thirty-day deadline for filing a statement of pecuniary damages was directory rather than mandatory). The district court issued a supplemental restitution order in the amount of $3000.
Two days after the order was filed, Jones asked for a restitution hearing pursuant to Iowa Code section 910.7. Following a hearing, the district court confirmed restitution in the amount of $3000.
Jones filed a notice of appeal from the order confirming restitution. The State responded by moving to dismiss the appeal on the ground that, under Iowa Code section 814.6(1)(a), Jones "does not enjoy an appeal as a matter of right" from a simple misdemeanor. Jones resisted the motion. She asked the court "to conclude that she enjoys an appeal as of right . . . independent of the underlying simple misdemeanor conviction, " and alternatively, that discretionary review should be accepted in this ...