from the Iowa District Court for Clarke County, Randy V.
a guilty plea, Jesse Comly appeals his sentences.
C. Smith, State Appellate Defender, (until withdrawal) and
Vidhya K. Reddy, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
Comly pled guilty to lascivious acts with a child, a class
'C' felony, in violation of Iowa Code section
709.8(1)(a) (2017), and dissemination and exhibition of
obscene material to a minor, a serious misdemeanor, in
violation of section 728.2. In its judgment and sentencing
order, the district court imposed indeterminate terms of
incarceration for each offense and directed that the
sentences be served consecutively with credit for all time
served in connection with the case. The court imposed but
suspended the minimum fines and 35% surcharges. Among other
things, the court ordered Comly to pay as restitution court
costs, the $25 sex offender registration fee under section
692A.110(1), a $250 civil penalty under section 692A.110(2),
and a $125 law-enforcement-initiative surcharge (LEI) under
section 911.3. The court found Comly did not have the
reasonable ability to pay restitution for court-appointed
legal assistance and ordered reimbursement of $0 for any such
obligation. The court ordered payment of restitution for
court costs but made no finding of a reasonable ability to
month after entry of the judgment and sentence, the county
sheriff, under section 356.7, applied for restitution and
reimbursement for room-and-board fees and medical services
and products totaling $11, 449.30. Two days later, and some
hours after Comly filed his notice of appeal, the district
court entered an order for restitution and reimbursement
ordering that Comly
reimburse the Clarke County Sheriff's Office for room and
board and medical services and products in the amount of $11,
449.30 plus any costs for medical services and products
provided to [Comly] while [he] was incarcerated and the bills
have been received as of this date by the Sheriff's
Office, and that judgment is hereby entered against [Comly]
in that amount.
order further provided that "this Order shall constitute
a plan of restitution unless [Comly] files an objection
hereto within 10 days of this Order." Nothing in our
record indicates the court made a reasonable-ability-to-pay
determination of Comly's ability to reimburse the county
for room-and-board fees and medical services and products.
The order entered against Comly became "a judgment for
purposes of enforcement by the sheriff" upon approval by
the court. Iowa Code § 356.7(3).
appeals arguing the district court improperly ordered him to
pay restitution for court costs, including correctional fees,
without first determining his reasonable ability to pay the
same. The State argues Comly's challenge is
premature "because the district court has not yet issued
a final restitution order." We disagree. While the
supreme court has stated "[r]estitution orders entered
by the court prior to the final order are not appealable as
final orders," State v. Albright, 925 N.W.2d
144, 161 (Iowa 2019), both of Iowa's appellate courts
have often vacated restitution-related orders absent a final
district court can only order restitution for "court
costs including correctional fees approved pursuant to
section 356.7" to the extent that the offender has the
reasonable ability to pay. Iowa Code § 910.2(1);
Albright, 925 N.W.2d at 159. Here, the district
court made no determination of Comly's reasonable ability
to pay restitution for court costs, including correctional
fees, before rendering judgment against him for the same. The
imposition of court costs, including correctional fees,
"must await the filing of a final restitution plan and a
determination of [Comly]'s ability to pay."
State v. Smeltser, No. 18-0098, 2019 WL 2144683, at
*1 (Iowa Ct. App. May 15, 2019). Applying Albright,
we vacate the court's orders for restitution and remand
the matter to the district court for receipt of a final
restitution plan and a determination of Comly's
reasonable ability to pay.
also argues the district court entered an illegal sentence in
imposing the $125 LEI surcharge. The statutory surcharge does
not apply to the offenses to which Comly pled guilty. The
State agrees. We vacate that portion of Comly's sentence
and remand for entry of a corrected sentencing order omitting
the LEI surcharge.
AFFIRMED IN PART, VACATED ...