from the Iowa District Court for Monona County, Duane E.
defendant appeals from the district court order dismissing a
charge against her for possession of a controlled substance
and ordering her to pay the court-appointed attorney fees.
Conrad Douglas, Sioux City, for appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.
Mathes appeals from the district court order dismissing the
only charge against her-possession of a controlled substance
(marijuana), third offense, which is a class "D"
felony. Mathes maintains the district court erred when it
ordered her to pay the fees for her court-appointed attorney
in relation to defending the charge. The State responded by
filing a motion to dismiss the appeal, arguing Mathes does
not have the right to appeal the court's order because it
is not a final order, see Iowa Code § 814.6
(2017), and the issue is not one that is appropriately raised
in a petition for writ of certiorari. Our supreme court
ordered the issue of the motion to dismiss be submitted with
the appeal and transferred the case to us.
eighteen months after charging Mathes with possession of a
controlled substance, the State filed a motion to dismiss the
charge "for the following reason(s): Upon agreement of
the parties." The district court filed a dismissal
order, which taxed costs to Mathes, including the fees for
her court-appointed attorney. According to the dismissal
order, Mathes was responsible for the costs "[b]y
agreement of the parties."
filed a pro se letter with the court, in which she stated:
I am requesting an attorney to appeal the conditions stated
in my dismissal order. I didn't agree to what is stated,
and have been unsuccessful in getting [my attorney] to
respond, as to why he made this agreement without my consent.
[My attorney] informed me specifically that the charges I
would be charged would be less than $500.00. I even had him
make a call to find out before I would agree to
paying any costs because I refused at first, since the
dismissal was based on the warrant being bad. (Something not
noted). The only reasons I agreed to "less than
$500," was to get it over with. I didn't agree to
anything else! . . .
response, the court filed an order indicating it had received
Mathes's letter and ordered Mathes's attorney to
contact her "with a view towards filing a notice of
appeal." This appeal followed.
first consider the State's contention that Mathes's
appeal should be dismissed because she has no right of appeal
from the district court's order dismissing the charge
against her. Importantly, "the right of appeal was not
known to the common law and is entirely statutory."
Sewell v. Lainson, 57 N.W.2d 556, 566 (Iowa 1953).
Iowa Code section 814.6(1)(a) provides a defendant the right
of appeal from "[a] final judgment of sentence."
"Final judgment in a criminal case means sentence. The
sentence is the judgment." State v. Klinger,
114 N.W.2d 150, 151 (Iowa 1966) (quoting Berman v. United
States, 302 U.S. 211, 212 (1937)). "In criminal
cases, as well as civil, the judgment is final for the
purposes of appeal 'when it terminates the litigation
between the parties on the merits' and 'leaves
nothing to be done but to enforce by execution what has been
determined.'" Berman, 302 U.S. at 212-13
(citation omitted). Even though the dismissal order requires
Mathes to reimburse the state for her court appointed fees,
we agree with the State that the dismissal order is not a
final judgment or sentence and Mathes has no right of appeal.
State recognizes, we must also consider if this issue is one
Mathes could properly raise in a petition for writ of
certiorari. See Bousman v. Iowa Dist Ct., 630 N.W.2d
789, 793 (Iowa 2001) ("If the present appeal should have
been filed as an original certiorari proceeding, we may
consider the appeal 'as though the proper form of review
had been sought.'" (citation omitted)); see
also Iowa R. App. P. 6.108. "A petition for a writ
of certiorari is proper when the district court is alleged to
have exceeded its jurisdiction or to have acted
illegally." State Pub. Def. v. Iowa Dist. Ct.,
630 N.W.2d 34, 36 (Iowa 1999). Here, Mathes does not assert
the district court lacked jurisdiction or the authority to
order her to pay the attorney fees incurred in defense of the
charge against her when she agreed to do so. See
Iowa Code § 815.9(3) (requiring a person who is
appointed an attorney "to reimburse the state for the
total cost of legal assistance provided to the person
pursuant to this section"); see also State v
Petrie, 478 N.W.2d 620, 622 (Iowa 1991) (providing
defendants should not be required to pay fees or charges
associated with dismissed charges unless an agreement between
State and defendant provides otherwise). Rather, she
maintains her counsel improperly consented on her behalf to
an agreement requiring her to pay more than $500 in fees.
Additionally, based on a statute she concedes is not directly
applicable, she argues the court should have determined
whether she had the reasonable ability to pay the fees before
ordering her to pay them. See Iowa Code §
815.9(6) (providing that in the instance of an acquittal, the
district court "shall order the payment of all or a
portion of the total costs and fees incurred for legal
assistance, to the extent the person is reasonably able
to pay" (emphasis added)). Neither of these
arguments include an assertion that the district court acted
illegally or outside of its jurisdiction. Therefore, we agree
with the State that Mathes's claims would not have been
properly raised in a petition for writ of certiorari.
Mathes does not have the right of appeal from an order
dismissing the criminal charge against her and she does not
claim the district court ...