from the Iowa District Court for Polk County, William P.
defendant appeals the district court's denial of his
request for a hearing on restitution. REVERSED AND
Losee, Anamosa, pro se appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
Losee was convicted of two counts of first-degree murder in
1983 and was sentenced to serve life in prison without the
possibility of parole. See State v. Losee, 354
N.W.2d 239, 240 (Iowa 1984). He was also ordered to pay court
cost and attorney fees to the extent he was reasonably able.
In 1994, the department of corrections entered a restitution
plan that provided Losee was required to pay a total of $11,
344.37 in court cost and attorney fees. Losee has challenged
his restitution obligation many times in the past; all
challenges have been denied.
case underlying the instant appeal began in October 2015 as a
result of Losee's petition for a hearing pursuant to Iowa
Code section 910.7 (2015). He asserted in the petition that
the clerk of court was keeping inaccurate records of his
payments on the restitution plan, a statement of costs was
not submitted at the time of his sentence, and the
restitution order was only valid as a judgment for twenty
years so any amount collected after 2003 must be refunded to
him. When the State failed to file a response to the
petition, Losee moved for summary judgment on his claims. In
February 2016, the district court denied Losee's
petition, concluding challenges to restitution orders made
more than thirty days after sentencing are civil and not
criminal proceedings that must be filed under chapter 610A.
Code section 910.7 permits an offender or a person who
prepared the restitution plan to petition the court for a
hearing "on any matter related to the plan of
restitution or restitution plan of payment." Chapter
610A pertains to civil litigation brought by those who are
inmates in a facility under the control of the department of
corrections. See Iowa Code § 610A.1(1). While
the supreme court has described petitions filed under section
910.7 more than thirty days after the restitution order to be
civil, and not criminal, in nature, see State v.
Alpach, 554 N.W.2d 882, 884 (Iowa 1996), the intent of
that language was to clarify whether an offender is entitled
to court-appointed counsel for his section 910.7 petition.
See id. We do not construe this language to control
how the petition for a restitution hearing is to be filed.
a construction is entertained, then offenders who are inmates
in a facility under the control of the department of
corrections, who wish to file a petition under section 910.7,
must file a separate civil lawsuit under chapter 610A, paying
the required filing fee. However offenders, who are not
inmates, or persons who prepared the plan of payment may file
petitions under the criminal docket without filing a separate
civil lawsuit under chapter 610A. We do not think the
legislature intended such disparate treatment of those who
are confined to facilities under the control of the
department of corrections.
addition, the purpose served by the restrictions placed on
civil litigation filed by inmates under chapter 610A is not
needed for petitions filed under section 910.7. See
Maghee v. Iowa Dist. Ct., 712 N.W.2d 687, 692 (Iowa
2006) ("[C]hapter 610A is the legislature's attempt
to deter inmates and prisoners from filing frivolous
lawsuits."). There is already a gatekeeping function
built into section 910.7 that allows the district court to
winnow out frivolous petitions for a restitution hearing
without needing to resort to chapter 610A. See Iowa
Code § 910.7(1) ("[T]he court shall grant a hearing
if on the face of the petition it appears that a hearing is
conclude chapter 610A does not apply to petitions filed under
section 910.7. Because we conclude the court erred in
dismissing Losee's petition for a hearing under section
910.7 based on Losee's failure to file his petition in
accordance with chapter 610A, we reverse and remand for