                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1229
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN AARON SWIFT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire,

Senior Judge.



      Justin Swift appeals the district court’s denial of his motion to reconsider

the reimbursement of attorney fees. REVERSED.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       Justin Swift appeals the district court’s denial of his motion to reconsider

the reimbursement of attorney fees and court costs following the dismissal of his

criminal charges. We reverse the district court’s assessment of attorney fees

and court costs for Swift’s dismissed charges.

I.     BACKGROUND FACTS AND PROCEEDINGS

       In May 2014, Swift, a seventeen year old, was arrested for theft, burglary,

and possession of a controlled substance. On August 28, 2014, Carrie Clark

was appointed to represent Swift. On the same day, the juvenile court waived

jurisdiction due to Swift being on probation in Illinois, the seriousness of the

crime, and the fact Swift would turn eighteen in October 2014.

       The trial information was filed in the district court on October 1, charging

Swift with theft in the first degree, in violation of Iowa Code sections 703.1, 714.1

and 714.2(1) (2013); burglary in the second degree, in violation of Iowa Code

sections 703.1, 713.1 and 713.5; and possession of a controlled substance

(marijuana), in violation of Iowa Code section 124.401(5). On January 14, 2015,

the district court approved attorney Clark’s application to exceed the fee

guidelines.     The    application   to   exceed     guidelines   included    Swift’s

acknowledgement to “pay back some or all of the attorney fees incurred.” On

January 21, upon the State’s motion, the court entered an order dismissing the

charges against Swift. The court ordered Swift to pay the costs of the action and

stated “after review of the file, having heard arguments of counsel, and reviewing

available financial information the Court FINDS that attorney’s fees total $1200.
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Defendant has the reasonable ability to pay attorney’s fees and is responsible for

payment in full.”

       On February 13, Swift filed a motion to reconsider pursuant to Iowa Rule

of Civil Procedure 1.904(2), claiming the court was not authorized to require

repayment of costs or attorney fees when the charges against a defendant are

dismissed. After a hearing on June 30, the court entered a ruling finding that

Iowa Code section 815.9 (2013) does not address whether court costs can be

assessed against a defendant when charges are dismissed. The court noted

section 815.9(6) requires a person, who received legal assistance and was

acquitted, to pay “all or a portion of the total costs and fees incurred for legal

assistance.”    The court reasoned “dismissal has the same legal effect as

acquittal,” and therefore Swift should be required to pay costs and attorney fees.

The court ordered the parties to “schedule a hearing on the issue of [Swift]’s

ability to pay court costs and the cost of legal representation.” This hearing was

never scheduled, and Swift filed a notice of appeal on July 16.

II.    STANDARD OF REVIEW

       Swift claims the district court erred in assessing court costs and attorney

fees against him.    As statutory construction is involved, our review is on error.

State v. Dudley, 766 N.W.2d 606, 612 (Iowa 2009).

III.   MERITS

       A.      Jurisdiction

       The State claims this court does not have jurisdiction to consider Swift’s

appeal because the district court’s order dismissing Swift’s charges was not a

“final judgment of sentence.” Iowa Code § 814.6(1)(a) (2013). Additionally, the
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State notes Swift has not sought discretionary review or a petition for certiorari

and his appeal was untimely.

       The Iowa Supreme Court considered the taxation of court costs to an

acquitted defendant in State v. Dudley, 766 N.W.2d 606, 624 (Iowa 2004), and

did so on direct appeal and application for further review. Even if direct appeal is

an improper way to review this issue, we may treat Swift’s appeal as an

application for discretionary review and “proceed as though the proper form of

review had been requested.” See Iowa R. App. P. 6.108. We find the district

court’s incorrect assessment of costs to Swift raises “a question of law important

to the judiciary and the profession” and discretionary review is proper. Iowa

Code § 814.1(2)(e).

       The State also claims Swift’s motion to reconsider was not timely. The

court order dismissing Swift’s charges and assessing costs and attorney fees

was entered on January 21. Swift filed a motion to reconsider on February 13;

twenty-three days later. Rule 1.904(2) states: “On motion joined with or filed

within the time allowed for a motion for new trial, the findings and conclusions

may be enlarged or amended and the judgment or decree modified accordingly

or a different judgment or decree substituted.” A 1.904(2) motion to enlarge

“must be filed within fifteen days after” the filing of the district court’s verdict or

decision. Iowa R. Civ. P. 1.1007. Swift’s 1.904 motion was not timely filed within

the fifteen day period. However, the State did not challenge the timeliness of this

motion at the hearing on Swift’s costs and the district court did not rule on the

timeliness issue.     Therefore the State cannot now raise this issue on appeal.

See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
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       The State also claims Swift did not timely bring this appeal. Iowa Rule of

Appellate Procedure 6.101(1)(b) provides that “if a motion is timely filed under

Iowa R. Civ. P. 1.904(2) . . . the notice of appeal must be filed within 30 days

after the filing of the ruling on such motion.” “[O]nly a ‘proper rule 1.904(2)

motion’ extends the time for appeal from the date of the original ruling.” Hedlund

v. State, 875 N.W.2d 720, 725 (Iowa 2016) (citing Baur v. Baur Farms, Inc., 832

N.W.2d 663, 668 (Iowa 2013)). When a 1.904 motion is “used to obtain a ruling

on an issue that the court may have overlooked, or to request the district court

enlarge or amend its findings when it fails to comply with rule 1.904(1), the

motion is proper and will toll the time for appeal.” Bauer, 832 N.W.2d at 669.

       Here, the court’s order of dismissal taxed court costs and attorney fees to

Swift without explanation. Swift’s 1.904 motion requested the court to reconsider

and amend its order imposing court costs and attorney fees. We find Swift’s

motion was proper and extended the time for appeal.         The ruling on Swift’s

motion occurred on June 30 and Swift filed his notice of appeal on July 16—and

within the thirty-day deadline.

       B.     Attorney Fees and Costs

       While no Iowa case specifically addresses the factual situation present in

this case, we find reasoning in State v. Petrie and its progeny control. Without an

agreement evidencing Swift’s intent to pay the court costs and attorney fees, we

find Swift is not responsible for the costs and attorney fees associated with the

dismissed charges.     See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991)

(holding “that the provisions of Iowa Code section 815.13 and section 910.2

clearly require, where the plea agreement is silent regarding the payment of fees
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and costs, that only such fees and costs attributable to the charge on which a

criminal defendant is convicted should be recoverable under a restitution plan”);

see also State v. Goad, No. 13–1319, 2014 WL 2885036, at *2 (Iowa Ct. App.

June 25, 2014) (reversing court costs taxed by the district court for dismissed

charges); State v. Wheeler, No. 11-0827, 2012 WL 3026274, at *1 (Iowa Ct. App.

July 25, 2012) (reversing the district court’s assessment of court costs to the

defendant for dismissed charges).

      We reverse the district court’s assessment of court courts and attorney

fees for Swift’s dismissed charges.

       REVERSED.
