Opinion
No. 1-823 / 00-1371.
Filed March 27, 2002.
Appeal from the Iowa District Court for Worth County, PAUL W. RIFFEL, Judge.
Dale E. Schrage appeals from the district court's order denying his request to perform community service in lieu of payment of attorney fees. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, and Chad Belville, County Attorney, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
I. Factual and Procedural Background.
On October 25, 1999, Dale E. Schrage was charged with the crime of possession of a firearm as a felon. He was represented by the public defender. The State moved to dismiss the case for lack of sufficient evidence to support a conviction. On May 1, 2000, the district court entered an order dismissing the charge and assessing costs to the State. On May 10, 2000, the public defender filed a certificate disclosing the time spent and expenses advanced in the course of the representation. On May 15, 2000, the district court ordered Schrage to reimburse the State in the amount of $538.60 for the cost of the public defender's legal assistance. On July 20, 2000, Schrage filed a motion requesting the district court to permit him to perform community service in lieu of reimbursing the State for the cost of his defense. The district court concluded "[c]ommunity service is not an option with respect to court costs and attorney fees," and denied the motion. On appeal, Schrage contends the district court erred by refusing to exercise its discretion to order community service in lieu of reimbursement. In the alternative, he contends the district court's ruling violated his right to equal protection of the law.
II. Discretion to Order Community Service.
After filing his notice of appeal, Schrage filed a motion requesting our supreme court to vacate the order for reimbursement. On May 29, 2001, the Iowa Supreme Court overruled the motion concluding "community service is not available when the defendant's case is dismissed and he is unable to pay court costs and the expense of a public defender pursuant to Iowa Code section 815.9 (Supp. 1999)." We agree with the supreme court's conclusion and affirm on this issue.
III. Equal Protection.
Schrage notes persons who have been convicted of crimes may be ordered to perform community service in lieu of making reimbursement for the costs of representation by the public defender. See Iowa Code section 910.2. He asserts a statutory scheme which denies the district court discretion to allow community service for defendants whose charges result in dismissals or acquittals violates the equal protection clauses of the Federal and Iowa Constitutions. Schrage did not assert this constitutional challenge in the district court and the State fails to address the issue in its appeal brief.
Schrage claims he is excused from his failure to raise the claimed constitutional error in the district court. He contends the district court's order requiring reimbursement of the cost of his legal assistance should be viewed as an appeal from an order requesting modification of the manner of payment of restitution. Although preservation of error rules are relaxed in appeals from sentencing orders, see State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994), we conclude Schrage has failed to preserve error in this case. He was not convicted of a crime, therefore, the district court's order was not an order for restitution pursuant to Iowa Code section 910.2. Furthermore, Schrage did claim entitlement to the community service option in the district court, but failed to raise the constitutional issue he now asserts on appeal. Accordingly, we conclude the equal protection issue was not preserved for our review.
AFFIRMED.
MAHAN and HECHT, JJ. concur; SACKETT, C.J. specially concurs without opinion.