review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Scott D.
defendant convicted of a criminal offense challenges an order
that he pay jail fees for pretrial detention.
C. Smith, State Appellate Defender (until withdrawal), and
Maria Ruhtenberg, Assistant Appellate Defender, for
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
defendant was convicted of arson in the second degree, the
county sheriff sought recovery of fees under Iowa Code
section 356.7 for the defendant's pretrial detention. The
sheriff did not, however, ask that the fees be included in
restitution. See Iowa Code §
356.7(2)(i) (2017). The district court ordered the
defendant to pay the requested amount.
appeal, the defendant claims the court should have determined
his reasonable ability to pay those jail fees before awarding
them. The State counters that because the fees were not
awarded as part of restitution, the district court was not
required take into account the defendant's reasonable
ability to pay.
review, we affirm the order of the district court and the
decision of the court of appeals. Based on our reading of the
statutes, we find that because the sheriff did not ask for
the fees to be included in restitution, the amount is not
subject to the reasonable-ability-to-pay limitations on
restitution set forth in Iowa Code chapter 910. This means,
however, that certain pathways available for collecting
restitution are not available here.
Facts and Procedural History.
29, 2017, Des Moines police officers responded to a house
fire at the home of Larry Gross. Four others resided in the
house and were also present when the fire started: (1) Megan
Gross, Larry's wife; (2) Geoff Hansen, a lifelong friend
of Larry's who was renting a room from Larry; (3) Chris
Hope, who lived in the basement with Nicole Pote; and (4)
Nicole Pote. Based upon their investigation, the police
determined that Larry Gross had knowingly set fire to his
home with the intent to destroy or damage his home. According
to police reports, Gross told Megan and Geoff to grab
anything they cared about because he had just lit the house
August 9, the State charged Gross with arson in the first
degree. See Iowa Code § 712.2. Pending trial,
Gross was held on a $25, 000 cash or surety bond. Gross never
posted bail. On October 19, under a plea agreement, Gross
pled guilty to arson in the second degree. See id.
§§ 712.1, .3.
January 5, 2018, the district court sentenced Gross to prison
for a term not to exceed ten years with credit for time
served. See id. § 902.9(1)(d). The
court also indicated there would be restitution, stating,
"There will be restitution. If there is restitution, I
assume there will be a supplemental order?" to which the
State responded, "Correct, Your Honor." The court
later added, "You could be ordered to make restitution,
which is financial compensation, for any monetary loss that
may be suffered by the victim of the crime, if you're
financially able to do so."
court memorialized this open-ended determination in its
sentencing order, which stated, "Defendant is ordered to
make restitution in the amount of $TBD. . . . If the
amounts of restitution are not available at the time of
sentencing, a supplemental order will follow." The
sentencing order also suspended fines because of Gross's
incarceration and waived attorney fees "based on the
circumstances and Mr. Gross's present situation, that he
cannot afford [to] pay the fees and costs of the state public
January 8, Gross appealed his conviction. On November 21, the
court of appeals affirmed Gross's conviction, finding
that his plea was supported by a factual basis. Pending
appeal, Gross was held on a $20, 000 cash appeal bond. Gross
did not post this bond either.
on April 6, the Polk County Sheriff's Department filed an
application for reimbursement for $11, 415, consisting of
Gross's room and board for 197 days of incarceration at
the Polk County Jail from June 29, 2017, through January 11,
2018. See id. § 356.7(2)(i). On April
9, the district court entered an order in the criminal case
approving the sheriff's claim for $11, 415 in
correctional fees. The order stated, in part,
IF YOU DISPUTE THE AMOUNT OWED, PLEASE CONTACT THE POLK
COUNTY JAIL AT 515-323-5411 OR VISIT THEIR WEBSITE AT
ANY DEFENDANT AGGRIEVED BY THE ABOVE ORDER MAY FILE AN
APPLICATION WITH THE COURT TO HAVE THE COURT REEXAMINE THIS
DECISION. THE APPLICATION MUST BE FILED WITHIN 15 DAYS AFTER
THE FILING OF THE COURT'S ORDER[.]
Payments may be mailed or made in person:
Attn: Accounting Clerk
Polk County Jail
1985 NE 51st Place
Des Moines, Iowa 50313
(Citation omitted.) The order was mailed to Gross's home
address in Des Moines and not to the Mt. Pleasant
Correctional Facility where he was then confined.
April 16, Gross initiated an appeal of the order approving
the sheriff's claim for reimbursement of jail room and
board. His pro se notice of appeal also included a financial
affidavit claiming indigence and requesting appointment of
was appointed appellate counsel, and later, his appeal was
transferred to the court of appeals. Just over a year later,
on April 17, 2019, the court of appeals affirmed the district
court's reimbursement order, finding that it was a civil
judgment executable under chapter 626-not a restitution award
under chapter 910-and therefore exempt from a
7, Gross applied for further review, and we granted his
Standard of Review.
review restitution orders for correction of errors at law.
State v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010).
In doing so, "[w]e determine whether the court's
findings lack substantial evidentiary support, or whether the
court has not properly applied the law." State v.
Albright, 925 N.W.2d 144, 158 (Iowa 2019) (quoting
State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004)).
"We review rulings on questions of statutory
interpretation for correction of errors at law."
State v. Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa
2017) (quoting State v. Olutunde, 878 N.W.2d 264,
266 (Iowa 2016)).
Did the District Court Err in Ordering Gross to Pay for Room
and Board for His Time Spent in Jail Without Finding that He
Had the Reasonable Ability to Pay?
error is preserved on an issue if (1) a party raises the
issue before the district court, (2) the district court rules
upon the issue, and (3) the party again raises the issue on
appeal. State v. Hernandez-Lopez, 639 N.W.2d 226,
233 (Iowa 2002). However, the rule of error preservation
"is not ordinarily applicable to void, illegal or
procedurally defective sentences." State v.
Richardson, 890 N.W.2d 609, 615 (Iowa 2017) (quoting
State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App.
State argues that Gross failed to preserve error at the
district court level by not seeking reconsideration as
suggested in the district court's April 9, 2018 order or,
alternatively, seeking enlargement of that order pursuant to
Iowa Rule of Civil Procedure 1.904(2). This is consistent
with the State's position that the ...