                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1351
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DIANE CLARA DANN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.



      Diane Dann appeals from the restitution imposed as a part of her

sentence for assault causing bodily injury. APPEAL DISMISSED.




      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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DANILSON, Chief Judge.

       Diane Dann appeals from the restitution imposed as part of her sentence

for assault causing bodily injury, in violation of Iowa Code sections 708.1(2) and

708.2(2) (2013). The court imposed a sentence of thirty days with all but two

days suspended and ordered Dann to pay a fine, statutory surcharge, probation

enrollment fees, jail fees, and costs.

       Dann contends the court erred in ordering her to pay restitution without

first making a determination as to her reasonable ability to pay. See Iowa Code

§ 910.2(1); State v. Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987) (“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.”). However, Dann is “not

permitted to challenge the court’s failure to determine [her] reasonable ability to

pay because the plan of restitution was not complete at the time the notice of

appeal was filed and the remedy for a hearing under section 910.7 ha[s] not been

exhausted.” State v. Kurtz, No. 15-0832, 2016 WL 743098, at *2 (Iowa Ct. App.

Feb. 24, 2016) (citing State v. Swartz, 601 N.W.2d 348, 354 (Iowa 1999), and

State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999)). Dann’s probation officer or

office is required to consider “the offender’s income, physical and mental health,

age, education, employment, and family circumstances” before formulating a

payment plan and submitting the same to the court for the court’s approval. See

Iowa Code § 910.4(2).

       Because the restitution plan of payment was not entered prior to the

appeal and Dann challenges the court’s failure to consider her ability to pay, the

challenge is not directly appealable. State v. Jose, 636 N.W.2d 38, 45 (Iowa
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2001) (“The ability to pay is an issue apart from the amount of restitution and is

therefore not an ‘order[] incorporated in the sentence’ and is therefore not directly

appealable as such.”). Thus, we dismiss the appeal.

       APPEAL DISMISSED.
