               IN THE SUPREME COURT OF IOWA
                              No. 14–1851

                        Filed December 30, 2016

                        Amended March 21, 2017


STATE OF IOWA,

      Appellee,

vs.

PATRICK JOHN LETSCHER,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Winnebago County,

Gregg R. Rosenbladt, Judge.



      Defendant seeks further review of a court of appeals decision

affirming a sentence imposed by the district court that forfeited a $2000

cash bail to pay the financial obligations imposed by the sentence.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AND SENTENCE

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,

Assistant Appellate Defender, for appellant.
                                   2

      Thomas J. Miller, Attorney General, Katherine M. Krickbaum (until

withdrawal), then Thomas J. Ogden and Kevin Cmelik, Assistant

Attorneys General, and Adam D. Sauer, County Attorney, for appellee.



      Alan R. Ostergren, Muscatine, for amicus curiae Iowa County

Attorneys Association.
                                    3

CADY, Chief Justice.

      In this case, we consider whether a sentence in a criminal case

may include a provision for the forfeiture of a pretrial bail bond in

payment of the various financial obligations imposed as a part of the

sentence. We conclude a sentencing court in Iowa is not authorized to

impose forfeiture of bail. We vacate the decision of the court of appeals

in part and affirm it in part. We affirm the sentence of the district court

in part, reverse in part, and remand with directions.

      I. Factual Background and Proceedings.

      On August 28, 2013, the Forest City Police Department took

Patrick Letscher and another person into custody and filed a complaint

accusing them of stealing a pickup truck.       A magistrate set bail at

$2000, cash only. Two days later, Letscher posted the bail with the clerk

of court. He also signed a form entitled, “APPEARANCE BOND - WAIVER

OF   ARRAIGNMENT       –   AUTHORIZATION      OF   PLEAS    OF   GUILTY,”

ostensibly provided to him by the clerk. The form contained preprinted

text with several blank lines requesting information.    The blanks were

completed and identified Letscher’s name, the offenses charged, the date

and time of the preliminary hearing, and the amount of bail. The text

included two set-off paragraphs with an underlined lead-in next to each.

The paragraphs provided, “(Arresting officer to check the one that

applies).”

            SIMPLE MISDEMEANOR – Upon my failure to appear
      and enter a plea to said charge, I hereby waive my rights to
      appear in Court, to have an attorney, to further move or
      plea, and to have a trial. On my failure to appear, I
      authorize the Court to enter a plea of guilty to the charge set
      out above and I understand that my bond will be forfeited in
      payment of fines, surcharges, costs and victim restitution in
      this matter and any other criminal judgment(s) against me in
      Winnebago County. The Surety whose name appears below
      agrees and consents to such payment.
                                      4
             OTHER – The bond is posted to insure my appearance
      in Court on said date and time and at all future court
      appearances until these matters are concluded and to
      comply with all future court orders. I UNDERSTAND THAT IF
      I DO NOT APPEAR, THIS BOND MAY BE FORFEITED AND A
      WARRANT FOR MY ARREST MAY BE ISSUED IF THE
      COURT SO ORDERS. I authorize the Clerk of Court to use
      this bail bond to pay all fines, surcharges, costs and victim
      restitution that I may be ordered to pay by the Court in the
      final judgment of this matter or any other criminal
      judgment(s) against me in Winnebago County.

The paragraph marked “OTHER” was checked as the pertinent provision.

The form then stated, “Posted by,” and contained a line for the

defendant’s signature and address.        Letscher signed his name on this

line. He was released from custody.

      Letscher was subsequently charged by trial information with the

felony crimes of theft in the first degree and criminal mischief in the

second degree.    The charges were later amended to include habitual

felony offender enhancements.     In August of 2014, Letscher entered a

written plea of guilty to the theft charge pursuant to a plea agreement.

Under this agreement, the State promised to concur in the sentencing

recommendation of the presentence investigator, dismiss the habitual

felony offender enhancement, dismiss the criminal mischief charge, and

dismiss all charges against the other person arrested with Letscher. The

written plea identified, and the court reiterated, Letscher’s understanding

of the maximum penalties, including a fine up to $10,000, ten years in

custody, a thirty-five percent surcharge on the fine, court costs, and

reimbursement of attorney fees.           The district court subsequently

sentenced Letscher to a period of incarceration not to exceed ten years.

It refused to suspend the period of incarceration and grant probation. It

also imposed a fine of $1000, with a surcharge of thirty-five percent and

an additional surcharge of $125, restitution in the amount of $398.74,
                                      5

and attorney fees in the amount of $240.            It suspended the fine and

surcharge. Paragraph 6 of the sentencing order then provided,

            Appearance bond is forfeited and applied to
      Defendant’s obligations in this and other criminal matters in
      Winnebago County.          Bond in excess of Defendant’s
      obligations will be returned to the person in whose name it
      was posted. Remaining obligations shall be paid to the Clerk
      of Court in full by the date of this order.

Letscher moved for reconsideration and requested he be sentenced to

probation. The motion was denied, and Letscher appealed.

      On appeal, Letscher raised two claims of error. First, he claimed

his request for probation was improperly denied because the district

court utilized a fixed policy against granting probation to defendants with

a prior criminal record.     Second, Letscher claimed the district court

lacked authority to order forfeiture of the bail.

      We transferred the case to the court of appeals. It held the record

at the sentencing hearing supported the conclusion that the district

court imposed a sentence of incarceration based on the individual

circumstances of the case, not a fixed policy. It further found that the

authority of the district court to forfeit an appearance bond at sentencing

was never at issue because the district court did not forfeit the bond.

Instead, the court of appeals found the district court at sentencing

effectively only directed the bond to be returned to Letscher subject to

the agreed conditions.      A special concurrence found Letscher never

objected to the conditions of the bond during the trial court proceedings

and, therefore, failed to preserve error.

      Letscher sought, and we granted, further review. In doing so, we

now affirm the decision of the court of appeals in part and vacate in part.

We affirm the decision of the court of appeals on the issue pertaining to

the denial of probation without further discussion and vacate the
                                      6

decision on the issue pertaining to the appearance bond. See State v.

Gathercole, 877 N.W.2d 421, 427 (Iowa 2016) (noting “our discretion to

select the issues addressed on further review”). We affirm the judgment

and sentence of the district court as modified by this decision. We strike

provision 6 from the sentencing order and remand the case to the district

court for further proceedings on the bond.

      II. Standard of Review.

      Review of sentencing decisions is for correction of errors at law.

Iowa R. App. P. 6.607; State v. Formaro, 638 N.W.2d 720, 724 (Iowa

2002). “We will not reverse the decision of the district court absent an

abuse of discretion or some defect in the sentencing procedure.”

Formaro, 638 N.W.2d at 724.      Absent a constitutional argument, “we

review a district court’s decisions related to bail for an abuse of

discretion.” See State v. Briggs, 666 N.W.2d 573, 575 (Iowa 2003). To

the extent there is a constitutional argument, our review is de novo. See

id.

      III. Preservation of Error.

      We first consider whether Letscher properly raised the issue of bail

on appeal from the judgment and sentence entered by the district court.

The State claims Letscher was required to raise any dispute before the

district court for the court to address and review it in a proceeding

separate from this criminal appeal.

      The State correctly observes that bail is normally a matter we

address and review separate from the entry of a judgment and sentence.

See Formaro, 638 N.W.2d at 727; State v. Costello, 489 N.W.2d 735, 738

(Iowa 1992) (“[P]roceedings for forfeiture of bail and judgment therein are

civil actions . . . .” (quoting State v. Zylstra, 263 N.W.2d 529, 531 (Iowa

1978))). In this case, however, the district court made forfeiture of the
                                      7

pretrial appearance bond posted by Letscher into a term of the

sentencing order.     As a term of sentence, Letscher was entitled to

challenge it as any other term of sentence, and the challenge could

properly include the authority of the court. See State v. Bruegger, 773

N.W.2d 862, 872 (Iowa 2009) (noting a claim of an illegal sentence “may

be brought at any time”); see also State v. Louisell, 865 N.W.2d 590, 597

(Iowa 2015) (noting “the well-established principle that sentences

imposed without statutory authorization are illegal and void”).             A

provision of a sentence becomes part of the sentence and may be

challenged on appeal.    Formaro, 638 N.W.2d at 727. Our rule is that

matters following the imposition of sentence are collateral and must be

addressed separately.    Id.; see also State v. Alspach, 554 N.W.2d 882,

884 (Iowa 1996).

      The court of appeals majority viewed the sentencing provision as

an order for exoneration of the bond following a disposition of the

sentence. It concluded the sentencing court, in exonerating the bond,

only followed the provisions of the bond form to which Letscher had

agreed and that a special concurrence noted he failed to challenge during

the course of the proceedings.     See Iowa Code § 811.2(7)(a)–(b) (2015)

(authorizing motions and appeals of conditions of release on bail). The

State asserts Letscher made forfeiture incidental and collateral to the

central sentencing provisions by failing to challenge the bail conditions.

See, e.g., Iowa State Bank & Trust Co. v. Michel, 683 N.W.2d 95, 110

(Iowa 2004) (“Although the filing of a notice of appeal generally deprives

the district court of jurisdiction, the court ‘retains jurisdiction to proceed

as to issues collateral to and not affecting the subject matter of the

appeal.’ ” (quoting Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897

(Iowa 1990))).     Yet, the district court did not allow the bail to be
                                     8

disbursed by the clerk of court collateral to sentencing so that Letscher

would have had an opportunity to assert a challenge, but ordered

forfeiture as a part of sentencing. A defendant is not required to object to

a term of sentence to preserve error on appeal.      State v. Pearson, 876

N.W.2d 200, 205 (Iowa 2016) (“[A] defendant may challenge an ‘error[] in

sentencing . . . on direct appeal even in the absence of an objection in the

district court.’ ” (alteration in original) (quoting State v. Lathrop, 781

N.W.2d 288, 293 (Iowa 2010))).

      When the district court applied the forfeiture condition, it took

action to forfeit a portion of the appearance bond to pay the various

financial obligations of the sentence. Accordingly, it passed judgment on

the legal consequences of the terms of bail, and this action permitted

Letscher to properly challenge the authority of the district court to take

such action as a part of the sentence. Cf. Alspach, 554 N.W.2d at 884

(finding “challenges to restitution imposed as part of the original

sentencing order, or supplemental orders,” are part of the criminal

proceedings, as opposed to “a later action . . . to modify the plan or

extend its completion date,” which are civil).       The issue raised by

Letscher is properly before us on this appeal.

     IV. Authority of the District Court to Forfeit Bail as a Term of
Sentencing.

      We now consider the authority of the district court to order the

forfeiture of a pretrial appearance bond as a term of a sentence.       We

begin with the general proposition that a sentence is illegal if it is not

authorized by statute.     Louisell, 865 N.W.2d at 597.       No statutory

sentencing provision exists in Iowa to authorize a court to forfeit bail.

See Iowa Code ch. 901 (judgment and sentencing procedures); id.

ch. 902 (felonies); id. ch. 905 (community-based correctional program);
                                              9

id. ch. 906 (parole and work release); id. ch. 909 (fines); id. ch. 910

(restitution); id. ch. 911 (surcharge).                  Furthermore, the statutes

governing a forfeiture of bail do not authorize forfeiture as a term of

sentencing. See Iowa Code §§ 811.2, .6. Thus, forfeiture of bail has no

support within the framework of our sentencing laws.

       We recognize forfeiture of bail to satisfy court-imposed obligations

was a statutorily recognized procedure in Iowa throughout much of our

history. See State v. Owens, 112 Iowa 403, 407–08, 84 N.W. 529, 530–

31 (1900) (citing Iowa Code Ann. § 5527 (1897)); see also Iowa Code

§ 3235 (1851); State v. Schultz, 245 N.W.2d 316, 318 (Iowa 1976) (citing

Iowa Code § 765.4 (1975)). As in many jurisdictions, as well as federal

law, our legislature formerly authorized the disbursement of bail funds

following convictions to pay court-imposed obligations such as fines,

surcharges, costs, and restitution. 1 The Iowa statute provided,


       1See   28 U.S.C. § 2044 (2012) (“On motion of the United States attorney, the
court shall order any money . . . deposited . . . with the court for the purposes of a
criminal appearance bail bond . . . to be applied to the payment of any assessment, fine,
restitution, or penalty imposed upon the defendant.”); Cal. Penal Code § 1297 (West,
Westlaw current through 2016 Reg. Sess.) (“If the money remains on deposit at the time
of a judgment for the payment of a fine, the clerk shall, under the direction of the court,
if the defendant be the depositor, apply the money in satisfaction thereof . . . .”); Idaho
Code Ann. § 19-2908 (West, Westlaw current through 2016 Second Reg. Sess.) (“When
bail has been posted by cash deposit and remains on deposit at the time of the
judgment, the clerk of the court shall, under the direction of the court, apply the money
in satisfaction of fines, fees, costs and restitution . . . .”); 725 Ill. Comp. Stat. Ann.
§ 5/110-7(h) (West, Westlaw current through P.A. 99-906 of the 2016 Reg. Sess.) (“After
a judgment for a fine and court costs or either is entered in the prosecution of a cause
in which a deposit has been made . . . the balance of such deposit, after deduction of
bail bond costs, shall be applied to the payment of the judgment.”); Ind. Code Ann.
§ 35-33-8-3.2(a)(1) (West, Westlaw current through 2016 Second Reg. Sess.) (“[T]he
court may require the defendant and each person who makes a deposit . . . to execute
an agreement that allows the court to retain all or a part of the cash to pay publicly
paid costs of representation and fines, costs, fees, and restitution . . . if the defendant is
convicted.”); Kan. Stat. Ann. § 22-2802(4) (West, Westlaw current through 2016 Reg.
and Special Sess.) (“Any person charged with a crime who is released on a cash bond
shall be entitled to a refund of all moneys paid for the cash bond, after deduction of any
outstanding restitution, costs, fines and fees . . . .”); 15 Me. Rev. Stat. Ann. tit. 15,
                                                 10
        When money has been deposited by the defendant, if it
        remain on deposit at the time of a judgment against him, the
        clerk, under the direction of the court, shall apply the money
        in satisfaction of so much of the judgment as requires the
        payment of money, and shall refund the surplus, if any, to
        him, unless an appeal be taken to the supreme court, and
        bail put in, in which case the deposit shall be returned to the
        defendant.

Iowa Code § 765.4 (1977).                 But as part of the 1976 criminal code

revisions, effective 1978, the legislature repealed this long-standing rule.

See 1976 Iowa Acts ch. 1245, ch. 4, § 526 (repealing Iowa Code ch. 765

(1975)); see also Estate of Lyon v. Heemstra, No. 08–0934, 2009

WL 1676662, at *2–3 (Iowa Ct. App. June 17, 2009) (noting change in

law); Op. Iowa Att’y Gen. No. 79-4-36 (Apr. 27, 1979), 1979 WL 20942, at

*2 (noting Iowa legislature expressly repealed Iowa Code § 765.4). The

repeal of this statute is a clear indication that our legislature no longer

wanted to continue the practice of applying bail money to court-ordered
_________________________
§ 1074(3) (West, Westlaw current through 2015 Second Reg. Sess.) (“The court may
order all or a portion of the bail owned by a defendant that has not been forfeited to be
first paid and applied to . . . [a]ny fine, forfeiture, penalty or fee . . . [,] restitution . . . [,]
attorney’s fees . . . [,] [and] [a]ny surcharge . . . .”); Mich. Comp. Laws Ann. § 765.15(2)
(West, Westlaw current through P.A. 2016, No. 340 of the 2016 Reg. Sess.) (“If the court
ordered the defendant to pay a fine, costs, restitution, assessment, or other payment,
the court shall order [the payment] collected out of cash bond or bail personally
deposited by the defendant . . . .”); Minn. Stat. Ann. § 629.53 (West, Westlaw current
through 2016 Reg. Sess.) (“In case of conviction, the judge may order the money bail
deposit to be applied to any fine or restitution imposed on the defendant by the court
. . . .”); N.Y. Crim. Proc. Law § 420.10(1)(e) (McKinney, Westlaw current through L. 2016
chs. 1 to 503) (“Where cash bail has been posted by the defendant as the principal and
is not forfeited or assigned, the court at its discretion may order that bail be applied
toward payment of any order of restitution or reparation or fine.”); N.D. Cent. Code Ann.
§ 29-08-28 (West, Westlaw current through 2016 Special Sess.) (“In the case of a
conviction, the judge may order the moneys to be applied to any fine, cost, or restitution
imposed on the defendant.”); 12 R.I. Gen. Laws Ann. § 12-13-10 (West, Westlaw current
through chapter 542 of the January 2016 Sess.) (“If the money remains on deposit at
the time of a judgment . . . , the clerk must apply the money in satisfaction of the
judgment . . . .”); Wis. Stat. Ann. § 969.03(4) (West, Westlaw current through 2015 Act
392) (“If a judgment of conviction is entered . . . , the balance of the deposit, after
deduction of the bond costs, shall be applied first to . . . restitution . . . and then . . . to
the payment of the judgment.”).
                                     11

obligations. See Wieslander v. Iowa Dep’t of Transp., 596 N.W.2d 516,

522 (Iowa 1999) (“The repeal of a statute typically destroys the

effectiveness of the statute, and the repealed statute is deemed never to

have existed.”).

      Iowa Code requires, in certain circumstances, conditions on

pretrial release.     See Iowa Code § 811.2(1) (2015).       None of these

conditions would support the sentence imposed here.          Under our law

today, conditions on bail are only imposed to assure the subsequent

appearance of the defendant or protect the safety of others. See id.; see

also Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 659 (Iowa 1995) (finding

authority for pretrial release condition of no-contact order based on

safety of others); Luster v. Broderick ex rel. Scott Cty., 327 N.W.2d 224,

226 (Iowa 1982) (“The purpose of an appearance bond is to ensure the

appearance of a released defendant as required.”). The conditions are set

by the court, not a clerk of court or an arresting officer. See Iowa Code

§ 811.2(1)(a); id. §§ 804.21–.22.   Additionally, a statutory procedure is

provided for the return of bail to the person who deposited it.           Id.

§ 811.8. Finally, forfeiture is available, but only as a civil matter, and is

triggered when a defendant fails to appear for court proceedings where

appearance is required. Id. § 811.6; see Costello, 489 N.W.2d at 738.

      This body of law would normally instruct that the State could not

act to extract an unauthorized condition of bail from a defendant. Yet,

while the jurisdiction of a court cannot be conferred by consent,

authority may. See Schaefer v. Putnam, 841 N.W.2d 68, 80 n.13 (Iowa

2013) (“Unlike subject matter jurisdiction, which may not be conferred

on a court by the parties, a ‘court’s authority can be obviated by consent,

waiver or estoppel.’ ” (quoting State v. Mandicino, 509 N.W.2d 481, 483

(Iowa 1993))).      Based on this proposition, the State argues that the
                                      12

authority of the district court to order forfeiture at sentencing was

derived from the consensual nature of the terms of bail in this case. We

find any issue of consent is not properly before us in this appeal. No

record exists to reveal the circumstances behind the bond form signed by

Letscher.    While the circumstances would suggest Letscher did not

initiate and pursue the bail conditions, we cannot properly act on the

issue without a record.

        Notwithstanding, we also observe the authorization only addressed

the authority of the clerk of court to use bail to pay any financial

obligations. It did not authorize forfeiture by the court as a term of the

sentence. As a result, we must return the case to the district court for

the clerk to disburse the bail money as required by law. See Iowa Code

§ 811.8(2). In the event the clerk of court seeks to use the authorization

to pay the financial obligations of the sentence, Letscher will have an

opportunity to challenge the action in a separate district court

proceeding, and the court will have the opportunity to adjudicate the

issue based on a full and complete record. See Iowa R. Civ. P. 1.1401

(authorizing petition for writ of certiorari to claim a judicial officer

exceeded its jurisdiction or otherwise acted illegally). Judicial review will

also be available.   See id. rs. 1.1410, 1.1412 (authorizing hearing and

appeal on petition for writ of certiorari).

        Finally, we address the argument made by the amicus filed in this

case.   It asserts the sentencing court merely exercised its authority to

levy on a convicted defendant’s assets, which happened to already be

under the control of the court. See generally Iowa Code chs. 626, 639,

641; Iowa R. Crim. P. 2.26(1)(d)(1) (“Upon a judgment for a fine, an

execution may be issued as upon a judgment in a civil case . . . .”). This

argument, too, is conditioned on the forfeiture occurring outside of the
                                    13

sentence.   Because we conclude the court forfeited the bail money as

part of the sentence, and without statutory authorization, we have no

occasion to reach amicus’s arguments. Nevertheless, we note generally

the implicated policy considerations of making bail available, see State v.

Iglesias, 517 N.W.2d 175, 186 (Wis. 1994) (Bablitch, J., dissenting)

(noting potential chilling effect of levying on bail money posted by third

parties), and not undermining the purpose of bail, which is securing

appearance, see Landau v. Vallen, 895 F.2d 888, 892 (2d Cir. 1990)

(discussing concern that attachment diminishes the incentive to appear

and receive returned bail money). We also note applying bail money to

court-imposed obligations such as restitution ignores the fact that the

calculations for each amount may be different: $2000 may be what

Letscher was required to put on the line to give him sufficient interest

not to flee, but it is unclear whether a court would find Letscher

reasonably able to pay the same in regular installments. See Iowa Code

§ 910.2 (authorizing plans of restitution); Briggs, 666 N.W.2d at 582

(noting bail is a lump sum set at what the court deems sufficient to

ensure appearance); State v. Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987)

(noting restitution is based on a defendant’s reasonable ability to pay).

Finally, we note the court followed none of the ordinary procedures for

attachment and execution. See, e.g., Iowa Code § 626.12 (prescribing the

form of execution); id. § 626.72 (authorizing claim contests); id. § 639.3

(prescribing form of petition asking for attachment); id. § 639.61

(requiring hearing on claim for attachment); id. § 641.2 (prescribing

requirements to seek attachment of money due the state).

      The disposition of pretrial bail money is not an authorized part of

sentencing, and therefore, a sentencing court is without statutory
                                    14

authority to forfeit bail as a part of a sentence. Action taken against bail

must comply with the statutory terms and conditions.

      V. Conclusion.

      We conclude the district court was without authority to forfeit bail

as a part of the sentencing order in this case. We strike paragraph 6

from the sentencing order and remand the case to the district court for

further action on the bail. We otherwise affirm the decision of the court

of appeals in part and vacate in part and affirm the judgment and

sentence of the district court.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AND SENTENCE

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.
