State of Iowa v. Kevin Dwayne Garvin

IN THE COURT OF APPEALS OF IOWA

No. 18-1258
Filed July 3, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KEVIN DWAYNE GARVIN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.

Kevin Garvin appeals restitution-related orders following his criminal

conviction. ORDER VACATED AND REMANDED.

Mark C. Smith, State Appellate Defender (until withdrawal), and Nan

Jennisch, Assistant Appellate Defender, for appellant.

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

General, for appellee.

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

MULLINS, Judge.

In May 2018, Kevin Garvin entered an Alford1 plea to second-degree

robbery. In July, the court sentenced Garvin to an indeterminate term of

incarceration not to exceed ten years with a mandatory minimum of five years.

See Iowa Code §§ 711.3, 902.9(1)(d), .12(3) (2018). The court also ordered

Garvin to “make any restitution.” The court noted “there is no restitution right now”

but indicated it would subsequently issue a restitution order. In its written

sentencing order, the court ordered Garvin to make restitution in an amount to be

determined. However, the court found Garvin had no reasonable ability to pay

restitution for court-appointed legal assistance under Iowa Code section 815.9(5).

Garvin appealed.2 On July 31, Garvin was transported from the county jail

to a state prison facility. In October, pursuant to Iowa Code section 356.7, the

county sheriff filed an application for reimbursement for room-and-board fees in

the amount of $10,395 relative to Garvin’s time in the county jail. The district court

entered an order approving the claim the same day.3 There is nothing in our record

to indicate the court made a reasonable-ability-to-pay determination as to Garvin’s

ability to reimburse the county for room-and-board fees. Although the order

1
See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individual accused of [a] crime
may voluntarily, knowingly, and understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his participation in the acts constituting
the crime.”).
2
Although the remainder of the procedural matters discussed below occurred after Garvin
filed his notice of appeal, they are included in the record provided us on appeal, as the
record was not transmitted to the supreme court clerk until March 2019. See Iowa Rs.
App. P. 6.801, .802.
3
Upon such approval, the claim for the amount owed by Garvin became “a judgment for
purposes of enforcement by the sheriff.” Iowa Code § 356.7(3).
3

approving the claim for room-and-board fees notified Garvin of his ability to dispute

the claim within fifteen days, no such dispute appears in the record on appeal.

On appeal, Garvin argues the court improperly ordered him to pay

restitution for court costs including correctional fees without first determining his

reasonable ability to pay the same. The State responds Garvin’s challenge is

premature “because no restitution plan or restitution plan of payment exists.” We

disagree. While the supreme court has stated “[r]estitution orders entered by the

court prior to the final order are not appealable as final orders,” State v. Albright,

925 N.W.2d 144, 161 (Iowa 2019), both of Iowa’s appellate courts have frequently

vacated restitution-related orders absent a final restitution order.4 Further, the

order entered against Garvin became “a judgment for purposes of enforcement by

the sheriff” upon approval by the court. Iowa Code § 356.7(3).

It is undisputed that the district court can only order restitution for “court

costs including correctional fees approved pursuant to section 356.7” to the extent

the offender has the reasonable ability to pay. Id. § 910.2(1); Albright, 925 N.W.2d

at 159. Here, the district court made no determination of Garvin’s reasonable

ability to pay restitution for court costs including correctional fees before rendering

judgment against him for the same. The imposition of court costs including

correctional fees “must await the filing of a final restitution plan and a determination

of [Garvin]’s ability to pay.” Smeltser, 2019 WL 2144683, at *1. Applying Albright,

4
See, e.g., State v. Headley, 926 N.W.2d 545, 549, 553 (Iowa 2019); State v. McMurry,
925 N.W.2d 592, 601 (Iowa 2019); State v. Petty, 925 N.W.2d 190, 194, 197 (Iowa 2019);
State v. Covel, 925 N.W.2d 183, 187–89 (Iowa 2019); Albright, 925 N.W.2d at 162; State
v. Rankin, No. 18-1033, 2019 WL 2372142, at *1 (Iowa Ct. App. June 5, 2019); State v.
Maresch, No. 18-1296, 2019 WL 2151674, at *1 (Iowa Ct. App. May 15, 2019); State v.
Rawls, No. 18-0882, 2019 WL 2145722, at *2 (Iowa Ct. App. May 15, 2019); State v.
Smeltser, No. 18-0998, 2019 WL 2144683, at *1 (Iowa Ct. App. May 15, 2019).
4

we vacate the court’s imposition of correctional fees against Garvin pending

completion of a final restitution order and a subsequent assessment of his

reasonable ability to pay. We remand the matter to the district court for receipt of

a final restitution plan and a determination of Garvin’s reasonable ability to pay.

ORDER VACATED AND REMANDED.