State of Iowa v. Deirdre Laine Witham

IN THE COURT OF APPEALS OF IOWA

No. 18-1548
Filed December 18, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DEIRDRE LAINE WITHAM,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Adam D.

Sauer, District Associate Judge.

Deirdre Laine Witham appeals her sentence following a guilty plea to

operating a motor vehicle while intoxicated, third offense. JUDGMENT OF

CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED IN

PART, AND REMANDED.

Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
2

VAITHESWARAN, Presiding Judge.

Deirdre Laine Witham pled guilty to operating a motor vehicle while

intoxicated, third offense, and the district court imposed judgment and sentence.

See Iowa Code § 321J.2 (2018). The sentencing order stated Witham had “the

reasonable ability to pay” certain financial obligations, including “court costs.”

On appeal, Witham contends “the total amount of restitution was not

presented to the court at the time of sentencing,” rendering “the plan of restitution

. . . legally deficient.” See State v. Albright, 925 N.W.2d 144, 162 (Iowa 2019)

(“Courts must wait to enter a final order of restitution until all items of restitution are

before the court. Once the court has all the items of restitution before it, then and

only then shall the court make an assessment as to the offender’s reasonable

ability to pay.”). The State responds that we should consider dismissing the

appeal. Alternatively, the State agrees “the district court erred in determining

Witham’s reasonable ability to pay prior to ‘knowing the amount of each item of

restitution,’” citing Albright, 925 N.W.2d at 162.

Based on Albright, “we vacate the restitution part of the sentencing order

and remand the case to the district court to order restitution in a manner consistent

with” Albright. See id. at 162–63.

JUDGMENT OF CONVICTION AFFIRMED; SENTENCE AFFIRMED IN

PART, VACATED IN PART, AND REMANDED.