                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0780
                            Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CLARENCE M. FORD, III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      A defendant challenges the district court’s finding that he is reasonably able

to pay restitution. SENTENCE VACATED IN PART AND REMANDED.




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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

       Clarence Ford III pleaded guilty to sexual abuse in the third degree. The

district ordered Ford to an indeterminate term of incarceration not to exceed ten

years and ordered Ford to pay for court-appointed-counsel’s fees in an amount not

to exceed $1800. The sentencing order stated Ford had the reasonable ability to

pay his court-appointed-counsel’s fees. On appeal, Ford challenges the district

court’s determination that he had the reasonable ability to pay his court-appointed-

counsel’s fees.

       We first determine whether the issue is properly before the court. The State

contends Ford’s challenge is premature and cannot be considered until both the

plan of restitution and restitution plan of payment are completed. See State v.

Jose, 636 N.W.2d 38, 45-46 (Iowa 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.” (quoting State v. Janz,

358 N.W.2d 547, 549 (Iowa 1984)); State v. Jackson, 601 N.W.2d 354, 357 (Iowa

1999) (determining a court is not required to consider a defendant’s ability to pay

until plan of restitution is completed); State v. Swartz, 601 N.W.2d 348, 354 (Iowa

1999) (concluding a defendant’s ability to pay cannot be assessed until entry of a

plan of restitution is entered). We disagree. As a general rule, the defendant

cannot challenge on direct appeal the district court’s plan of restitution where the

plan of restitution was not final at the time the appeal was taken. See State v.

Kurtz, 878 N.W.2d 469, 471–72 (Iowa Ct. App. 2016) (discussing Jose and

explaining “the defendant was required to file a petition to modify the supplemental

restitution orders” because the amount of restitution was not final). As a general
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rule, the defendant cannot challenge on direct appeal the district court’s failure to

determine the defendant’s reasonable ability to pay where there is no plan of

restitution or restitution plan of payment. See State v. Campbell, No. 15-1181,

2016 WL 4543763, at *3 (Iowa St. App. Aug. 31, 2016). However, where, as here,

the sentencing order contains a finding regarding the defendant’s ability to pay

restitution, the finding is incorporated into the sentence and may be reviewed on

direct appeal. See id. (“More importantly, the sentencing court in this matter

actually determined Campbell had the reasonable ability to pay restitution.

Because the court made that finding in the written sentencing order, it is

‘incorporated in the sentence,’ and we may review it on appeal.” (citation omitted)).

       Having determined we can review the challenge to the sentencing order,

we agree with Ford the district court erred. In the sentencing hearing, the district

court never made a finding that the defendant had the reasonable ability to pay his

attorney fees. The finding contained in the sentencing order is thus not supported

by the record. The required remedy is to remand for the entry of a corrected

sentencing order. See id. at *4 (“Accordingly, we vacate and remand to the district

court. On remand, the judgment of sentence and conviction shall be corrected by

striking the sentencing court’s unsupported finding of Campbell's ability to pay.”).

       For the above-stated reasons, we vacate that part of the sentencing order

finding the defendant has the reasonable ability to pay his court-appointed

counsel’s fees and remand for the entry of a corrected sentencing order.

       SENTENCE VACATED IN PART AND REMANDED.
