State v. Janz, 84-81
| Decision Date | 14 November 1984 |
| Docket Number | No. 84-81,84-81 |
| Citation | 358 N.W.2d 547 |
| Parties | STATE of Iowa, Appellee, v. Caroline Marie JANZ, Appellant. |
| Court | Iowa Supreme Court |
Charles L. Harrington, Appellate Defender, and LuAnn White, Asst. Appellate Defender, Des Moines, for appellant.
Thomas J. Miller, Atty. Gen., Steven K. Hansen, Asst. Atty. Gen., and James C. Bauch, County Atty., for appellee.
Considered by UHLENHOPP, P.J., and McGIVERIN, LARSON, CARTER, and WOLLE, JJ.
This case presents the question whether an error in a plan of restitution may be corrected on appeal from the judgment of conviction and sentence. We conclude that the defendant properly raised in this direct appeal her complaint about the amount of victim restitution she was ordered to pay. The amount was incorrect. We therefore vacate the order for restitution and remand, directing the district court to correct defendant's plan of restitution.
Defendant Caroline Marie Janz pleaded guilty to false use of a financial instrument in the first degree, a violation of Iowa Code section 715.6 (1983). The sentencing court included in her judgment of conviction and sentence of incarceration a specific order requiring her to pay victim restitution in the sum of $115.40, the total amount of four forged checks listed on the trial information. Defendant points out in this direct appeal that of the four bad checks listed, only two in the total sum of $32.50 were accepted by the payees and caused them harm. The other two checks totaling $82.90 were not accepted and therefore did not cause the victims to suffer pecuniary damages within the meaning of our restitution statute, Iowa Code section 910.1(2), which provides:
"Pecuniary damages" means all damages to the extent not paid by an insurer, which a victim could recover against the offender in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium. Without limitation, "pecuniary damages" includes damages for wrongful death.
The State concedes that the order requiring restitution erroneously included the checks totaling $82.90 which were never accepted and therefore caused no harm to any victim. The State contends, however, that defendant was required first to seek relief from the incorrect restitution order by filing a petition with the sentencing court pursuant to Iowa Code section 910.7 (1983), which provides:
At any time during the period of probation, parole or incarceration, the offender or the office or individual who prepared the offender's restitution plan, may petition the court and the court shall grant a hearing on any matter related to the plan of restitution or restitution plan of payment. The court at any time prior to the expiration of the offender's sentence, may modify the plan of restitution or the restitution plan of payment, or both, and may extend the period of time for the completion of restitution.
The State interprets this provision of chapter 910, governing victim restitution, as a statutory requirement for exhaustion of remedies. The State's fallback position is that a plan of restitution or restitution order is never appealable because there is no specific authority for such an appeal in Iowa Code section 814.6 (1983).
I. We agree only partially with the State's first contention. A defendant can and probably should ordinarily file such a petition with the district court before appealing, but the defendant is not required to do so.
In State v. Harrison, 351 N.W.2d 526, 529 (Iowa 1984), we explained that section 910.7 gave the sentencing court the authority to review any issue concerning either the plan of restitution or the plan of payment provided for in the sentencing of a criminal defendant. Consequently, defendant certainly could have filed a section 910.7 petition requesting that the sentencing court correct the amount she was required to pay. The issue, however, is not whether defendant could have filed such a petition but whether defendant was required to file such a petition to obtain relief. She was not required to do so.
First, the statute uses the permissive verb "may petition," a strong suggestion that the legislature intended filing of such a petition to be optional and not mandatory.
Secondly, we faced a similar issue in State v. Young, 292 N.W.2d 432 (Iowa 1980), involving interpretation of Iowa Rule of Criminal Procedure 23(5)(a), which provided:
The court may correct an illegal sentence at any time.
There, the State contended that the defendant's appeal from an allegedly illegal sentence was premature because he had failed to present the issue first to the district court. We decided in Young, however, that the defendant was not required to resort to that rule initially to correct an illegal sentence. Id. at 435. Noting that the practice in Iowa for many years had been to allow either the district court or the appellate court to correct an illegal sentence, we said:
Nothing in rule 23(5)(a) expressly requires a motion thereunder prior to appeal, section 814.20 of...
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State v. Wagner
...This opportunity should be provided. See Iowa Code § 910.7 (1983); State v. Kaelin, 362 N.W.2d 526, 528 (Iowa 1985); State v. Janz, 358 N.W.2d 547, 548-49 (Iowa 1984); State v. Storrs, 351 N.W.2d 520, 522 (Iowa We therefore reverse the district court judgment with respect to the restitution......
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...(or the plan of restitution) under Iowa Code section 910.7. See State v. Jose , 636 N.W.2d 38, 46–47 (Iowa 2001) ; State v. Janz , 358 N.W.2d 547, 549 (Iowa 1984).Thus, error preservation is intertwined with the merits. If the award of jail fees is the equivalent of a civil judgment, then t......
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...the defendant was required to exhaust her remedies in the district court by bringing a section 910.7 petition for hearing. 358 N.W.2d 547, 548 (Iowa 1984). We recognized that avenue was available to the defendant but not required. Id. at 549. Where section 814.6(1)(a ) granted a criminal de......
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