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State v. Hering

Court of Appeals of Iowa

April 18, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
DAVID HERING, Defendant-Appellant.

          Appeal from the Iowa District Court for Muscatine County, Mary E. Howes, Judge.

         David Hering appeals from the denial of his motion for a restitution hearing.

          David Hering, Fort Madison, self-represented appellant.

          Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.

          DANILSON, Chief Judge.

         David Hering appeals from the denial of his April 4, 2017 motion for a restitution hearing. Our review is for correction of errors at law. State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004).

         In 2004, Hering was convicted of one count of first-degree murder and two counts of attempted murder. See State v. Hering, No. 14-1343, 2016 WL 3271910, at *1 (Iowa Ct. App. June 15, 2016). "An order of restitution was filed on July 9, 2004, which ordered Hering to pay restitution of $150, 000 to the estate of [the decedent] and $27, 409.84 to the Crime Victim Compensation Program." Id. Hering challenged the restitution order, and this court affirmed the part of the district court's ruling finding the restitution order requiring Hering to pay $150, 000 to the victim's estate had been satisfied through the payment of the judgment in a separate civil action. Id. But we reversed in part, eliminating the requirement Hering reimburse the Crime Victim Compensation Program $27, 409.84. Id.

On January 10, 2017, the district court issued the following ruling:
On 12/20/2016, [Hering] filed a request for a restitution hearing. His attached Restitution Account activity shows the Department of Corrections [(IDOC)] has withheld $2350.31 from his account. Hering claims his restitution obligation has been satisfied and no such funds should have been withdrawn from his account.
The State does not resist the application.
IT IS THEREFORE ORDERED that the Clerk of Court shall first use the funds to pay any unpaid court costs, attorney fees or other assessed sums due and unpaid and the balance shall refun[d] to Hering's prisoner account, the sum of $2350.31.

         On January 24, Hering filed a "Motion to Produce Supplemental Restitution Orders and Itemized Bill, " which the district court considered to be a motion for discovery. The district court denied the motion "because the docket in the matter is available to [Hering]" and "there is no pending litigation and [Hering] cannot request discovery of a non-party when no litigation is pending."

         On April 4, Hering filed another petition for restitution hearing, asserting the clerk of court had not refunded any money to his prison account and "it is unclear why" there had been no refund. He asserted he "has satisfied his court ordered plan of restitution in full and the record confirms that the money IDOC withheld from his inmate account was not utilized to satisfy his restitution plan." He also challenged IDOC's procedures for withholding money from his inmate account and claimed violations of his due process rights. As a remedy, Hering requested the court "issue an order requiring [IDOC] to refund his inmate account with ...


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