Opinion
No. 4-445 / 03-1787.
July 28, 2004.
Appeal from the Iowa District Court for Polk County, D. J. Stovall, Judge.
Bradley Winters appeals a restitution order. AFFIRMED.
Kent Gummert of Gaudineer, Comito George, L.L.P., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
I. Background Facts Proceedings
Bradley Winters was convicted of possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401 (1)(b)(7) (2001); conspiracy to deliver a controlled substance, in violation of section 124.401(1)(b)(7), and failure to possess a tax stamp, in violation of sections 453B.3 and 453B.12. Winters was sentenced as a second or subsequent offender. He was sentenced to a term of imprisonment not to exceed seventy-five years on each of the first two counts, and five years on the third count, all to be served concurrently. Winters' convictions were upheld on appeal. State v. Winters, No. 3-0737 (Iowa Ct.App. June 23, 2004).
The sentencing order, entered on April 29, 2003, ordered Winters to make restitution, although the amount of restitution was not available at that time. Pursuant to section 356.7(2), the Polk County Sheriff's Office filed a room and board reimbursement claim for the time Winters spent in the Polk County jail. Winters was charged for 246 days at the rate of $46.73 per day, which resulted in a total claim of $11,495.58.
Winters filed a petition for a chapter 910 hearing on restitution. The district court determined Winters failed to show he was unable to pay current installments on the amount due. The court also found Winters failed to show the amount charged by the Polk County Sheriff was excessive. Finally, the court determined the assessment of the room and board claim was not contrary to law. Winters appeals.
II. Standard of Review
We review matters regarding restitution for the correction of errors of law. State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001). A defendant who challenges a restitution order has the burden to "demonstrate a failure of the trial court to exercise discretion or abuse of discretion." State v. Blank, 570 N.W.2d 924, 927 (Iowa 1997) (quoting State v. Storrs, 351 N.W.2d 520, 522 (Iowa 1984)). To the extent a defendant raises constitutional issues, our review is de novo. State v. Love, 589 N.W.2d 49, 50 (Iowa 1998).
III. Ability to Pay
Winters first contends he does not have the ability to pay the reimbursement charge for his room and board at the county jail. He points out that he currently owes over $8000 in child support and over $12,000 in court costs in a different action. He also points out that he will have a limited ability to earn income while he is in prison.
Section 910.2 provides a criminal defendant may be ordered to pay restitution "to the extent that the offender is reasonably able to pay. . . ." A constitutional prerequisite for a restitution order is the court's determination of a defendant's reasonable ability to pay. State v. Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987). The court's focus is not on whether the defendant has the ability to pay the entire amount due, but whether the defendant can pay current installments. Id.
On this issue, the district court found:
Even if the Court were to take the defendant's current outstanding obligations of child support and court costs owed to Cerro Gordo County into consideration and assume that the defendant was required to make installment payments on those obligations, the defendant would still have the ability to make some amount of payments on an installment basis in this criminal action.
We concur in the district court's finding that Winters failed to show he did not have the ability to pay installments on the restitution order in this case.
IV. Amount of Restitution Charges
Winters contends the amount of restitution ordered in this case is excessive. He notes that in State v. Jackson, 601 N.W.2d 354, 355 (Iowa 1999), a defendant was ordered to reimburse a county jail for room and board at the rate of $10 per day. He asserts that the rate assessed here, $46.73 per day, greatly exceeds the amount approved in Jackson.
Section 356.7(1) provides, "The county sheriff may charge a prisoner who is eighteen years of age or older and who has been convicted of a criminal offense . . . for the room and board provided to the prisoner while in the custody of the county sheriff." A claim for room and board reimbursement may be filed by the sheriff with the district court. Iowa Code § 356.7(2). Upon receipt of such a claim, "the court shall approve the claim in favor of the sheriff or the county for the amount owed by the prisoner as identified in the claim. . . ." Iowa Code § 356.7(3).
The supreme court has determined that under this statutory scheme a court has an obligation to order restitution of the amounts for room and board certified by the sheriff. Jackson, 601 N.W.2d at 356. A defendant is only responsible for those room and board costs certified by the sheriff. Id. Furthermore, a sheriff may only charge for a defendant's actual room and board costs. Iowa Code § 356.7.
Here, the sheriff certified Winters' room and board costs were $46.73 per day. Upon receipt of the sheriff's claim for reimbursement of room and board, the court was obligated to order restitution of the amounts certified by the sheriff. See Jackson, 601 N.W.2d at 356. Winters has failed to show $46.73 is not the actual amount of his daily room and board at the county jail.
V. Applicability of Statute
Finally, Winters claims section 356.7 is not applicable to him because it provides a sheriff may charge a defendant "who has been convicted of a criminal offense or sentenced for contempt of court" for room and board. Iowa Code § 356.7(1). Winters asserts that he was charged for the time he was in jail awaiting trial, and therefore had not yet been convicted of a criminal offense.
The supreme court has rejected this argument, stating:
It is the purpose of this legislation to assist the county in recovering the costs incurred for housing and feeding prisoners during jail stays. No reason appears to distinguish between time spent in jail before conviction and time spent in jail following conviction in achieving that goal.
Jackson, 601 N.W.2d at 356. We reject Winters's suggestion that the holding in Jackson should be reconsidered.
We affirm the decision of the district court.
AFFIRMED.