               IN THE SUPREME COURT OF IOWA
                               No. 17–0270

                          Filed March 29, 2019


STATE OF IOWA,

      Appellee,

vs.

TYSON J. RUTH,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Greene County, Adria A.D.

Kester, District Associate Judge.



      Defendant convicted of theft in the second degree appeals from the

provision of a sentencing order relating to the taxation of court courts.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AND SENTENCE AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED.




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

Brenda J. Gohr, Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant

Attorney General, and Nicola Martino, County Attorney, for appellee.
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CADY, Chief Justice.

      In this appeal from a judgment and sentence on conviction of the

crime of theft in the second degree, the defendant claims the district

court imposed an illegal sentence by requiring him to pay the total court

costs in the case. We vacate the decision of the court of appeals, affirm

the district court in part, reverse in part, and remand the case for

resentencing on the taxation of court costs.

      I. Background Facts and Proceedings.

      The State charged Tyson Ruth by an eight-count trial information

with multiple crimes of burglary, theft, possession of illegal drugs, and a

single count of ongoing criminal conduct. The crimes involved multiple

victims. A portion of the evidence supporting the charges was a product

of a search of Ruth’s home by police pursuant to a warrant.

      Counsel was appointed to represent Ruth in the case, and he filed

a motion to suppress the evidence. On the day of the hearing on the

motion, the State and Ruth reached a plea agreement.              Under the

agreement, Ruth would plead guilty to one count of theft in the second

degree, and the remaining counts of the trial information would be

dismissed. The count of conviction involved a theft from a victim named

Michael Strautman. The prosecutor and Ruth agreed victim restitution

would be limited to the count of conviction.          The prosecutor also

informed the court that the State would be asking that Ruth pay court

costs, but no agreement between the parties was identified.         The plea

agreement was subsequently memorialized during the plea hearing. In

explaining the sentence and punishment Ruth faced by pleading guilty,

the district court informed him that he “would be required to pay court

costs of ‘[the] action, including costs of your court-appointed attorney.’ ”
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      At the sentencing hearing, the district court imposed a sentence for

the crime of theft in the second degree. In doing so, it ordered that Ruth

pay the “court costs of [the] action.” The judgment and sentence also

dismissed the remaining counts in the case, adding that the “costs are

taxed to the defendant.” A docket report subsequently generated by the

clerk of court in the case identified court costs of $482.20. These costs

included a $100 filing fee for the trial information; eight sheriff fees

ranging from $21.50 to $43.76 for serving subpoenas to various

individuals, including Michael Strautman; a $40 court reporter fee of a

plea hearing; a $40 court reporter fee for the sentencing; and a sheriff’s

fee of $69.98 to transport Ruth to serve his sentence of incarceration.

The district court determined Ruth was not able to pay the court-

appointed attorney fees.

      Ruth appealed from the judgment and sentence. He claimed the

district court should have apportioned the court costs to limit his

responsibility to pay only those costs associated with the single count

that resulted in the conviction. He claimed no agreement existed for him

to pay the costs associated with the dismissed counts. Ruth also raised

claims of ineffective assistance of trial counsel.

      We transferred the case to the court of appeals.     It found Ruth

failed to show that the total bill of costs he was ordered to pay included

costs associated with the dismissed counts. The court of appeals further

found the claims of ineffective assistance of counsel should be resolved

by postconviction relief. Ruth sought, and we granted, further review.

      II. Standard of Review.

      Our review of restitution orders is for correction of errors at law.

State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). “When reviewing

the restitution order, we determine whether the court’s findings lack
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substantial evidentiary support, or whether the court has not properly

applied the law.” State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).

       III. Disposition.

       In State v. McMurry, ___ N.W.2d ___, ___ (Iowa 2019) (filed today),

we modified and explained our holding in State v. Petrie, 478 N.W.2d 620

(Iowa 1991). We reiterated that a sentencing court may only order an

offender in a multicount criminal case to pay restitution for court costs

attributable to those counts for which the offender was convicted.                    In

Petrie, we clarified this rule in three ways.           We said (1) restitution for

costs was limited to the costs attributed to the count or counts of

conviction, (2) restitution could not be ordered for costs attributed to

dismissed counts, and (3) restitution for court costs not associated with

any single count is assessed proportionally between the dismissed

counts and the counts of conviction. Id. at 622.

       In McMurry, we modified the third portion of the Petrie rule to hold

that court costs not associated with any single count must be taxed to

the offender, not apportioned. 1 Thus, the only costs that are not now

part of the court costs assessed against the offender in a multicount

criminal case are those clearly attributed to the dismissed counts.
       In this case, the district court sentencing order specifically

provided that Ruth pay the court costs associated with the dismissed

counts.    Importantly, there was no agreement between the parties for

Ruth to pay these costs. Thus, the sentencing order was correct only if




       1This  holding is consistent with Iowa Code section 602.8106(1)(a), that sets a
flat $100 fee “for filing and docketing a criminal case,” and Iowa Code section 625.8(2),
that establishes a fixed cost of $40 per day for the services of a court reporter. These
fees are applied to each case and are not affected by the number of charges within any
given case.
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none of the itemized bills of cost were attributed to the dismissed counts

in the case.

      Under the modified rule in McMurry, the record in this case

supports an assessment of all the court costs against Ruth, except the

service fees relating to the subpoenas. The filing fee, court reporter fees,

and sheriff transportation fee were clearly either attributed to the count

of conviction or were not associated with a single count. Yet, the record

does not reveal which sheriff’s service fees were attributed to the count of

conviction, the counts dismissed, or no single count.        We, therefore,

remand the case to the district court to determine how the service fees

should be apportioned consistent with our decision in McMurry.

      We understand the time constraints for the district court and the

complexity of sentencing, as well as the absence of information that

frequently makes the final determination of all of the issues surrounding

sentencing difficult. However, the potential for apportionment of court

costs in multicount criminal cases that result in both counts of

conviction and counts dismissed means sentencing courts can no longer

routinely order the defendant to pay the court costs in a criminal case,

unless supported by an agreement between the parties or a record

showing no court costs are attributed to the dismissed counts.

Consequently, the district court should encourage counsel to consider

the issue of court costs before sentencing and be prepared to assist in

resolving the issue at sentencing.       Without an agreement, sentencing

courts must either apply the apportionment rule at the time of

sentencing to determine the amount of court costs to be paid by the

defendant or include a provision in the sentencing order that directs the

defendant to pay the court costs identified in the docket report other

than those attributed to a dismissed count.
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      Until a final order is entered, an appeal is not the only remedy for

the failure to apportion court costs at sentencing.      In the event the

sentencing court does not identify the amount of court costs in the

sentencing order, a supplemental order will be needed to identify the

amount of court costs. The State, the defendant, or the clerk of court

can request the supplemental order.

      IV. Conclusion.

      We vacate the decision of the court of appeals, affirm the judgment

and sentence of the district court in part, reverse in part, and remand for

a determination of court costs.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT     JUDGMENT        AND     SENTENCE      AFFIRMED       IN   PART,

REVERSED IN PART, AND REMANDED.

      All justices concur except McDonald, J., who takes no part.
