State v. Harrison, 83-752
| Decision Date | 18 July 1984 |
| Docket Number | No. 83-752,83-752 |
| Citation | 351 N.W.2d 526 |
| Parties | STATE of Iowa, Appellee, v. Edward Green HARRISON, Appellant. |
| Court | Iowa Supreme Court |
Charles L. Harrington, Appellate Defender, and LuAnn White, Asst. Appellate Defender, for appellant.
Thomas J. Miller, Atty. Gen., Sherie Barnett, Asst. Atty. Gen., and Gary Sissel, Asst. County Atty., for appellee.
Considered by HARRIS, P.J., and McCORMICK, McGIVERIN, LARSON and CARTER, JJ.
We must determine here whether a sentencing court has discretion to order less than full restitution for court costs and court-appointed attorney fees. The trial court believed full restitution is mandatory. Because we find that a sentencing court is required to consider the offender's ability to make the payments, we vacate the restitution order and remand for determination of the amount with consideration of defendant's reasonable ability to pay the amount ordered.
Defendant Edward Green Harrison was charged and convicted by jury in 1983 for second degree robbery. At sentencing, the trial court reviewed a plan of restitution contained in the presentence report. The court asked defense counsel if he had looked at the plan. Defense counsel said he had done so but that he did not believe defendant was in any position to pay it. The following occurred:
After additional discussion in which the court reiterated its view that the plan of restitution must include the full amount for court costs and court-appointed attorney fees, the court sentenced defendant. The plan of restitution included the full amount of court costs and attorney fees, $148.24 and $872 respectively.
The only question in this appeal is whether the trial court erred in failing to exercise discretion in determining the amount of restitution for court costs and attorney fees. We find the colloquy between the trial court and defense counsel was sufficient to show no discretion was exercised. If the court had no discretion, no error appears; if the court had discretion, defendant was entitled to have it exercised. See State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa 1982).
The relevant statutory provisions are in chapter 910 of the 1983 Code. The present case is not affected by 1984 amendments to these provisions. See 2 Iowa Legis.Serv. 52-53 & 70 (West 1984).
Section 910.2 outlines the duty of a sentencing court to order restitution or community service:
In all criminal cases except simple misdemeanors under chapter 321, in which there is a plea of guilty, verdict of guilty, or special verdict upon which a judgment of conviction is rendered, the sentencing court shall order that restitution be made by each offender to the victims of his or her criminal activities and, to the extent that the offender is reasonably able to do so, to the county where conviction was rendered for court costs, court-appointed attorney's fees or the expense of a public defender when applicable. However, victims shall be paid in full before restitution payments are paid to the county for court costs, court-appointed attorney's fees or for the expense of a public defender. When no victim has suffered pecuniary damages and the offender is not reasonably able to pay all or a part of the court costs, court-appointed attorney's fees or the expense of the public defender, the court may require the offender to perform a needed public service for any governmental agency or for a private, nonprofit agency which provides a service to the youth, elderly or poor of the community. When community service is ordered, the court shall set a specific number of hours of service to be performed by the offender. The judicial district department of correctional services shall provide for the assignment of the offender to a public agency or private nonprofit agency to perform the required service.
This section thus unconditionally requires the sentencing court to order offenders to make restitution to their victims, and it makes full payment to the victim a condition precedent to payment to the county for court costs and attorney fees. In turn, the section authorizes an order for community service when no victim has suffered pecuniary damages and the offender cannot reasonably pay "all or part" of the court costs and attorney fees.
Procedures for obtaining information and ordering restitution are provided in section 910.3:
The court shall require the county attorney to promptly prepare a statement of pecuniary damages to victims of the defendant and shall require the clerk of court to prepare a statement of court-appointed attorney's fees, the expense of a public defender and court costs which shall be promptly provided to the presentence investigator. These statements shall become a part of the presentence report. If a defendant believes no person suffered pecuniary damages, the defendant shall so state. If the defendant has any mental or physical impairment which would limit or prohibit the performance of a public service, the defendant shall so state. The court may order a mental or physical examination, or both, of the defendant to determine a proper course of action. At the time of sentencing, the court shall set out the amount of restitution including the amount of public service to be performed as restitution and the persons to whom restitution must be paid. This shall be known as the plan of restitution.
The order therefore must include a plan of restitution setting out the amounts and kind of restitution in accordance with the priorities established in section 910.2. Restitution is accomplished when the plan of restitution is carried out.
The definition of restitution in section 910.1(4) is consistent with the other statutory provisions:
"Restitution" means payment of pecuniary damages to a victim in an amount and in the manner provided by the offender's plan of restitution. Restitution shall also include the payment of court costs, court-appointed attorney's fees or the expense of a public defender, and the performance of a public service by an offender in an amount set by the court when no victim has suffered...
To continue reading
Request your trial
-
State v. Izzolena
...hearing under section 910.7, it would be able to adjust the payment plan at any time during the pendency of the order. State v. Harrison, 351 N.W.2d 526, 529 (Iowa 1984) (court may review restitution plan or payment plan in 910.7 hearing). The offender's petition for modification must, "on ......
-
Marriage of Fairall, In re
... ... Rerat Law Firm v. Iowa Dist. Court, 375 N.W.2d 226, 231 (Iowa 1985); State v. Ryan, 351 N.W.2d 186, 187 (Iowa 1984). Accordingly, we have stated: " 'Jurisdiction does not ... 27, 28 (1936) (construing predecessors of rules 252 and 253). To the extent Harrison v. Keller, 254 Iowa 267, 272, 117 N.W.2d 477, 480 (1962), indicates without citation of authority ... ...
-
State v. Albright
...the plan of restitution of the court. Id. The plan of restitution is part of the sentencing process of the offender. State v. Harrison , 351 N.W.2d 526, 528 (Iowa 1984). After the plan of restitution is ordered, "the next step is establishing a plan of payment." Id.While an offender is inca......
-
Walters v. Grossheim
...section 910.2 not only authorizes but compels the district court to order victim restitution in all criminal cases. State v. Harrison, 351 N.W.2d 526, 527-28 (Iowa 1984). Tempering this duty, however, is the court's obligation to consider an inmate's reasonable ability to pay, a factor that......