                   IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0690
                                  Filed April 17, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LARRY GROSS Jr.,
     Defendant-Appellant.
________________________________________________________________


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

Judge.



      Defendant appeals the district court decision requiring him to pay a room

and board reimbursement fee for time he spent in jail. AFFIRMED.




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

Ruhtenberg, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                         2


BOWER, Judge.

       Larry Gross appeals the district court decision requiring him to pay a room

and board reimbursement fee for time spent in jail. We conclude the district court

did not err in approving the Polk County Sheriff’s application for reimbursement

without making a finding Gross had a reasonable ability to pay. We affirm the

decision of the district court.

       Gross was charged with first-degree arson after he started a fire in his

home. He entered into a plea agreement and pled guilty to second-degree arson,

in violation of Iowa Code section 712.3 (2017).1 Gross was sentenced to a term

of imprisonment not to exceed ten years. The sentencing order, filed on January 5,

2018, provided Gross was to pay restitution in an amount to be determined.

       On January 16, the Polk County Sheriff’s Office filed a statement showing

Gross was confined in the Polk County jail for 197 days. On April 6, the Polk

County Sheriff’s Office filed a claim for reimbursement, seeking $11,415.00 for

room and board during the time Gross was in jail. The claim stated, “This Claim is

made pursuant to Iowa Code Section 356.7 for the reimbursement of

Administrative Costs, Room and Board, and Medical Aid Costs.”

       On April 9, 2018, the district court entered an order stating, the “Sheriff’s

Claim for Reimbursement is approved by the Court pursuant to Iowa Code

[section] 356.7 in an amount of $11,415.00.” The order advised Gross, “Any

defendant aggrieved by the above order may file an application with the court to

have the court reexamine this decision. The application must be filed within 15


1
  Gross’s conviction was affirmed on direct appeal. State v. Gross, No. 18-0048, 2018
WL 6120052, at *4 (Iowa Ct. App. Nov. 21, 2018).
                                           3


days after the filing of the court’s order (See Iowa Rule of Civil Procedure 1.1007).”

Gross did not file an application with the district court to challenge the court’s order,

but filed a notice of appeal on April 18, 2018, within the fifteen-day period.

         Gross claims the district court improperly required him to pay restitution of

$11,415.00, without making a finding as to his reasonable ability to pay, contrary

to constitutional requirements. See State v. Kurtz, 878 N.W.2d 469, 472 (Iowa Ct.

App. 2016) (“A defendant’s reasonable ability to pay is a constitutional prerequisite

for a criminal restitution order such as that provided by Iowa Code chapter 910.”).

The State responds by claiming the Polk County Sheriff was seeking to enforce

the claim as a civil judgment under chapter 626, rather than through a restitution

order.

         “Under section 356.7(3), a court-approved claim for room and board may

be enforced in two ways: as a judgment in the traditional sense, under Iowa Code

chapter 626, or as part of a restitution plan under chapter 910.”              State v.

Abrahamson, 696 N.W.2d 589, 591 (Iowa 2005). In the original claim, “[i]f the

sheriff or municipality wishes to have the amount of the claim for charges owed

included within the amount of restitution determined to be owed by the person, a

request that the amount owed be included within the order for payment of

restitution by the person” must be included in the reimbursement claim filed with

the clerk of district court. Iowa Code § 356.7(2)(i).

         Neither the claim by the sheriff nor the ruling by the district court mentions

restitution. Based on section 356.7(2)(i), we find the sheriff was seeking to enforce
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its claim for reimbursement under chapter 626.2 Where a sheriff proceeds under

chapter 626, the court has “inherent discretionary authority to review any

order . . . for substantive, as well as procedural, irregularity, and to set the matter

for hearing where necessary.” Abrahamson, 696 N.W.2d at 592. The court should

“resolve the merits of the claim.” Id. at 593.

       On appeal, Gross asks us to reverse the district court’s order and remand

for a hearing on his reasonable ability to pay. As noted, this case involves a civil

judgment under chapter 626, not a restitution order under chapter 910. For a civil

judgment, Gross is “afforded the same protections as other civil judgment debtors.”

See State v. Dudley, 766 N.W.2d 606, 623 (Iowa 2009). This does not include a

determination the defendant is reasonably able to pay the amount due, as in

restitution proceedings. See Iowa Code § 910.2; State v. Jackson, 601 N.W.2d

354, 357 (Iowa 1999) (noting until a restitution plan is filed “the court is not required

to give consideration to the defendant’s ability to pay”). On the other hand, a

restitution proceeding “does not trigger the protections of our statutes governing

execution on judgments.” Dudley, 766 N.W.2d at 623.

       We conclude the district court did not err in approving the reimbursement

application without making a finding Gross had a reasonable ability to pay. We

affirm the decision of the district court.

       AFFIRMED.




2
   We note in State v. Iowa District Court, No. 17-0616, 2018 WL 739323, at *4 (Iowa Ct.
App. Feb. 7, 2018), we stated “it does not appear the Polk County sheriff actually chose
to execute its room-and-board judgment using chapter 626.” The holding in this case is
based on whether the judgment for room and board was a “court debt,” which could be
satisfied by community service. Iowa Dist. Ct., 2018 WL 739323, at *5.
