              IN THE SUPREME COURT OF IOWA
                              No. 19–0022

                           Filed June 5, 2020


STATE OF IOWA,

      Appellee,

vs.

DANIEL WESLEY DAVIS JR.,

      Appellant.



      Appeal from the Iowa District Court for Tama County, Mary E.

Chicchelly, Judge.



      Defendant appeals restitution orders.     RESTITUTION ORDERS

VACATED AND CASE REMANDED WITH INSTRUCTIONS.



      Martha J. Lucey, State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant

Attorney General, and Brent D. Heeren, County Attorney, for appellee.
                                      2

WATERMAN, Justice.

      In State v. Albright, we held that “any temporary, permanent, or

supplemental order regarding restitution is not appealable or enforceable

until the court files its final order of restitution” after a determination of

the defendant’s reasonable ability to pay. 925 N.W.2d 144, 162 (Iowa

2019) (emphasis added). Daniel Davis Jr. filed this direct appeal from his

judgment of conviction challenging only the restitution awarded without a

determination of his reasonable ability to pay and without the district

court’s final order of restitution. The State argues his appeal must be

dismissed because such restitution orders are not “appealable” under

Albright. We retained this case to clarify Albright.

      On our review, we reiterate that such interim restitution orders are

not enforceable and collection efforts must await the district court’s

determination of the defendant’s reasonable ability to pay all items of

restitution and entry of the final order of restitution. Interim orders should

state that no sums are due before then. Defendants may seek appellate

review of interim restitution orders in a direct appeal of right from the

judgment of conviction. The district court in this case did not have the

benefit of Albright, and we vacate the restitution orders and remand this

case for further proceedings consistent with this opinion.

      I. Background Facts and Proceedings.

      On August 23, 2017, Detective Jacob Molitor of the Meskwaki

Nation tribal police investigated a hit and run collision in the Meskwaki

Bingo Casino Hotel parking lot in Tama. Surveillance video showed a gray

4x4 pickup backing out of a parking spot into a hotel guest’s Lexus

ES 350, which suffered a broken taillight and scrapes on the bumper. Two

days later, hotel security and the tribal police located the suspect truck,

which had scrapes and plastic consistent with taillight material embedded
                                             3

in its fender. They apprehended the truck’s occupants, two males, in the

hotel lobby. The suspects were uncooperative and placed under arrest.

Officers determined that one of the suspects, Daniel Davis Jr., had been

the driver of the truck.

      Officers soon learned that the truck, a silver 2015 Dodge Ram 2500

Cummins Diesel Laramie 4x4 pickup truck, had been stolen from

Car City, Inc. in Des Moines. They also learned that the license plates on

the Dodge were registered to a different vehicle. During their search of the

Dodge, the officers found a bag containing methamphetamine in the truck

bed belonging to Davis and located two DEWALT® rechargeable batteries

that later were determined to have been stolen from a hotel guest’s work

truck in the parking lot of the Drury Inn in Grove City, Ohio.

      On May 9, 2018, Davis was charged with theft in the first degree for

the stolen Dodge, theft in the third degree for the DEWALT® rechargeable

batteries, theft in the third degree for the stolen dealer plate, and

possession of a controlled substance (methamphetamine), third offense.

Given that he had at least two prior felony convictions, Davis faced the

habitual offender enhancement for the felony charges. The district court

appointed counsel to represent Davis.
      On August 16, Davis reached a plea agreement pursuant to which

he entered Alford 1 pleas to second-degree theft in violation of Iowa Code

sections 714.4 and 714.2(2) (2017) for the stolen Dodge and to possession

of a controlled substance, third offense, in violation of sections 124.401(5),

703.1, and 703.2. Under the plea agreement, the other two theft charges

were dismissed, and the State agreed not to pursue the habitual felony

enhancement. During the sentencing hearing, the prosecutor described


      1North   Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
                                     4

the plea agreement and stated, “I’d recommend the minimum fine and

restitution. I have no objection to the Court suspending that fine in lieu

of the restitution owed, Defendant’s costs and attorney fees.”      Defense

counsel agreed, and Davis told the court he understood the plea. The

court described the fines and surcharges and engaged in a colloquy to

ensure that Davis understood that he may be required to pay restitution:

            THE COURT: Also, Mr. Davis, as a consequence for
      pleading guilty, you may also be required to make restitution
      to any victims of each of these offenses. Do you understand
      that?
            MR. DAVIS: Yes, ma’am.
            THE COURT: And you will also be required to pay any
      court costs and court appointed attorney fees. Do you
      understand that?
            MR. DAVIS: Yes, ma’am.

Later, the court again emphasized this point:

             THE COURT: Now, if you plead guilty, you may also
      have to make victim restitution, restitution for court costs and
      restitution for court-appointed attorney fees if your lawyer is
      court appointed. Do you understand all of that?
            MR. DAVIS: Yes, ma’am.

At the close of the sentencing hearing, the court ordered Davis to pay

certain fines, surcharges, and victim restitution, stating,

             The Defendant is further sentenced to pay a fine in the
      amount of $750, together with a 35 percent surcharge. The
      Defendant is further sentenced to pay a law enforcement
      initiative surcharge in the amount of $125 with regard to each
      count and a DARE surcharge associated with Count Four.
      The fine shall be suspended in each of these counts. . . . The
      Defendant shall be ordered to pay restitution to the victim or
      victims of his crime relative to Count One. That restitution
      will be determined -- the Court is now ordering the State to
      file a statement of pecuniary damages with regard to Count
      One within 30 days of today’s date.

      On August 16, the district court entered an order accepting the

guilty plea in the same filing as its judgment of conviction and sentence.
                                            5

The court sentenced Davis to a maximum of five years imprisonment for

the theft offense (count I) and a maximum of five years imprisonment for

the drug possession offense (count IV), to run concurrently along with

other sentences that Davis was already serving.                    The written order

addressed costs and restitution as follows:

             Defendant is ordered to pay a fine in the amount of $750
       on Count I and $750 on Count 4; and the required 35 percent
       surcharges on each count. The Defendant is assessed the
       $125 Law Enforcement Initiative Surcharge on each Count I
       and Count IV; and on Count 4, the Defendant is assessed the
       $10 DARE surcharge. The fines on both Count I and Count
       IV are suspended by the court.
              Defendant is assessed the fees of court-appointed
       counsel in the amount approved pursuant to the contract with
       the State Public Defender in addition to any and all court costs
       in this matter.
               ....
               Counts II and III are dismissed at Defendant’s cost.
             With regard to Count I, the Defendant is ordered to pay
       victim restitution pursuant to a Statement of Pecuniary
       Damages which shall be filed by the State within 30 days.

(Emphasis added.)

       On August 28, the clerk of court filed a “restitution plan” listing

$405.50 in costs that Davis was “ordered to pay,” which reflected a $100
filing and docketing fee, a $40 court reporter fee, and $265.50 in Sheriff’s

(jail) fees.   Three days later, the State filed a statement of pecuniary

damages seeking $2000 in restitution to the owner of the stolen Dodge.

That same day the court granted the statement, ordered Davis to pay

victim restitution of $2000, and ordered Davis to file any objection within

ten days. Davis instead filed a notice of appeal. 2


       2Five  days later, the Iowa Department of Corrections (DOC) filed a restitution plan
reflecting both the $405.50 in costs and $2000 in victim restitution for a total of
$2405.50. This document states that Davis “has been ordered to pay the County Clerk
of Court 20 percent of all credits” to his prison account, and it states that an attempt to
violate the plan’s conditions will result in major disciplinary proceedings. This plan was
                                         6

       On appeal, Davis challenges the restitution he was ordered to pay

without a determination of his reasonable ability to pay.             He does not

challenge his conviction or prison sentence, nor the victim restitution

award. We retained the appeal.

       II. Standard of Review.

       “We review restitution orders for correction of errors at law.”

Albright, 925 N.W.2d at 158. “[W]e determine whether the court’s findings

lack substantial evidentiary support, or whether the court has not properly

applied the law.” Id. (alteration in original) (quoting State v. Klawonn, 688

N.W.2d 271, 274 (Iowa 2004)).

       III. Analysis.

       This dispute concerns the proper application of Albright. There, we

held that “any temporary, permanent, or supplemental order regarding

restitution is not appealable or enforceable until the court files its final

order of restitution.” Id. at 162. Davis asserts that the district court erred

by ordering him to pay restitution without a final order of restitution or

finding as to his reasonable ability to pay. Davis asks that we vacate the

portion of the sentencing order requiring him to pay court costs and

attorney fees and remand for a restitution hearing and final order at which

the district court will determine his reasonable ability to pay. The State

contends that under Albright, the district court was not required to

determine Davis’s reasonable ability to pay before entry of its final order of

restitution, which had not yet occurred when Davis filed his notice of

appeal. Accordingly, the State argues that the appeal must be dismissed

as premature.


signed by a DOC official. The district court never entered an order approving the DOC
statement or providing a final order of restitution, nor did it conduct a hearing or
otherwise determine Davis’s reasonable ability to pay restitution.
                                       7

      We begin our analysis by reviewing restitution requirements. Iowa

Code chapter 910 governs restitution. See id. at 158–61. There are two

categories of restitution.   Albright, 925 N.W.2d at 159; see Iowa Code

§ 910.2(1). The first category involves “restitution ‘to the victims of the

offender’s criminal activities [and] to the clerk of court for fines, penalties,

[and] surcharges,’ ” and “[t]he court is required to order restitution for the

items in this first category regardless of the offender’s reasonable ability to

pay.” Albright, 925 N.W.2d at 159 (first and second alteration in original)

(quoting Iowa Code § 910.2(1)). The court’s order for Davis to pay $2000

in restitution to the victim of his crime falls within this first category, and

the court was not required to determine his reasonable ability to pay this

amount before ordering the victim restitution.        That amount is not in

dispute.

      The second category of restitution includes,

           (1) Crime         victim        [compensation       program]
      reimbursement.
           (2) Restitution to public agencies pursuant to section
      321J.2, subsection 13, paragraph “b”.
           (3) Court costs including correctional fees approved
      pursuant to section 356.7.
            (4) Court-appointed attorney fees ordered pursuant to
      section 815.9, including the expense of a public defender,
      when applicable.
             (5) Contribution to a local anticrime organization.
           (6) Restitution to the medical assistance program
      pursuant to chapter 249A.

Iowa Code § 910.2(1)(a)(1)–(6) (emphasis added). The court can only order

the defendant to pay second-category restitution after “all such items are

before the court and the court has then made a reasonable-ability-to-pay

determination.” State v. Gross, 935 N.W.2d 695, 702 (Iowa 2019); Albright,

925 N.W.2d at 162. Davis challenges the correctional fees included in the
                                     8

$405.50 in court costs and the unknown amount of court-appointed

attorney fees he was ordered to pay without a determination of his

reasonable ability to pay.

      In Albright, we “urg[ed] the sentencing court to take whatever steps

necessary to ensure the items of restitution are before the court at the time

of sentencing.” 925 N.W.2d at 160. However, the Code recognizes that

the amount of restitution may not be available at the time of sentencing,

and it allows the court to enter supplemental orders.        See Iowa Code

§ 910.3. Importantly,

             A plan of restitution is not complete until the court
      issues the final restitution order. Until the court issues the
      final restitution order, the court is not required to consider
      the offender’s reasonable ability to pay. Restitution orders
      entered by the court prior to the final order are not appealable
      as final orders or enforceable against the offender. The reason
      for these orders being nonappealable or enforceable is that the
      final order of restitution must take into account the offender’s
      reasonable ability to pay.

Albright, 925 N.W.2d at 160–61 (citations omitted).

      After thoroughly discussing the governing statutes in Albright, we

vacated the restitution order because “the court found Albright had the

reasonable ability to pay and ordered restitution for items in the second

category of restitution without having the amount of each item of

restitution before it.” Id. at 162. We remanded the case to the district

court to conduct the proper process for restitution as laid out in the

opinion.   Id. at 162–63.    Our disposition in Albright and subsequent

decisions generated some confusion over the timing and path for appellate

review.

      Shortly after Albright, in State v. Headley, we reviewed a restitution

order and the defendant’s claim that the court imposed restitution without

determining his reasonable ability to pay. 926 N.W.2d 545, 548 (Iowa
                                      9

2019). Headley’s appeal was properly before us because the court had

issued a final restitution order:

             On June 8, the Polk County Sheriff’s Department filed
      an application for reimbursement for $13,695.              The
      reimbursement covered Headley’s room and board for 238
      days of incarceration. On June 12, the court approved the
      sheriff’s application for reimbursement and assessed a total
      of $14,228.80 to Headley for court costs and correctional fees.

Id. at 549. We vacated the order and remanded the case for the district

court to determine Headley’s reasonable ability to pay. Id. at 553. Headley

is consistent with Albright.

      In three other cases, we vacated restitution orders entered without

the requisite final restitution order. Each of these cases was decided either

on the same day as Albright or within days of that decision, and as in

Albright, our dispositions in each case reflected that the district courts did

not have the benefit of Albright in issuing the restitution orders. See State

v. McMurry, 925 N.W.2d 592, 601 (Iowa 2019); State v. Petty, 925 N.W.2d

190, 197 (Iowa 2019); State v. Covel, 925 N.W.2d 183, 189 (Iowa 2019).

The same is true in this case. Accordingly, we vacate the $405.50 cost

order as unenforceable. We also vacate the restitution provision in the

sentencing order that ordered Davis to pay his court-appointed attorney

fees (in an unstated amount) and court costs without a final restitution

order or determination of his reasonable ability to pay.

      We reiterate that the district court does not have an obligation to

conduct the reasonable-ability-to-pay determination until all items of

restitution are before it and the final order of restitution is entered. See

Albright, 925 N.W.2d at 160–61. Going forward, we reemphasize that “any

temporary, permanent, or supplemental order regarding restitution is not

. . . enforceable until the court files its final order of restitution” after

determination of the defendant’s reasonable ability to pay. Id. at 162.
                                          10

Such interim orders should state that the defendant is not obligated to pay

the sum until entry of the final order of restitution and the reasonable-

ability-to-pay determination. These interim orders are like an open bar

tab, or the “shopping cart” for online purchases, with payment delayed

until the final tally. The district court should halt premature efforts to

collect restitution.

      Before the final judgment of sentence, there is no right of direct

appeal from interim restitution orders preceding the court’s final order of

restitution, as such interim orders are nonfinal. Id. at 160–61. Appeals

from such nonfinal orders alone should be dismissed as premature or

treated as requesting discretionary or certiorari review.              Our appellate

courts, however, can and should review interim restitution orders included

in direct appeals from the final judgment of sentence. To the extent that

such interim restitution orders purport to allow enforcement, our appellate

courts should vacate the order or remand for clarification that the order is

not enforceable until the court enters a final order of restitution after the

requisite determination of the defendant’s reasonable ability to pay.

      We reiterate that “a defendant challenging a restitution order

entered as part of the original sentence has two options: to file a petition

in district court under section 910.7, or to file a direct appeal.” State v.

Blank, 570 N.W.2d 924, 926 (Iowa 1997) (per curiam).                      “[O]nce the

deadline for direct appeal has run, the defendant is limited to filing a

petition to modify restitution (or the plan of restitution) under Iowa Code

section 910.7.” Gross, 935 N.W.2d at 699. But as we hold today, the

defendant is not required to exhaust remedies under section 910.7 3 as a

      3Iowa   Code section 910.7 reads,
             1. At any time during the period of probation, parole, or
      incarceration, the offender or the office or individual who prepared the
      offender’s restitution plan may petition the court on any matter related to
                                           11

prerequisite for appellate review of a restitution order in a direct appeal

from a judgment of sentence.             We hereby overrule statements to the

contrary in State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999) (“Unless

that [section 910.7] remedy has been exhausted, we have no basis for

reviewing the issue in this court.”), and State v. Swartz, 601 N.W.2d 348,

354 (Iowa 1999) (same).

      IV. Disposition.

      For the foregoing reasons, we vacate the restitution orders and

remand this case for further proceedings consistent with this opinion.

      RESTITUTION ORDERS VACATED AND CASE REMANDED WITH

INSTRUCTIONS.

      All justices concur except McDonald, J., who dissents.




      the plan of restitution or restitution plan of payment and the court shall
      grant a hearing if on the face of the petition it appears that a hearing is
      warranted.
              2. After a petition has been filed, the court, at any time prior to the
      expiration of the offender’s sentence, provided the required notice has been
      given pursuant to subsection 3, may modify the plan of restitution or the
      restitution plan of payment, or both, and may extend the period of time for
      the completion of restitution.
              3. If a petition related to a plan of restitution has been filed, the
      offender, the county attorney, the department of corrections if the offender
      is currently confined in a correctional institution, the office or individual
      who prepared the offender’s restitution plan, and the victim shall receive
      notice prior to any hearing under this section.
                                     12

                                                 #19–0022, State v. Davis

McDONALD, Justice (dissenting).

      Criminal restitution is a creature of statute.    Over the course of

many years, our cases have interpreted and applied the relevant statutes

to create a practical and workable procedure for district courts to assess

and impose restitution against an offender in a manner that also protects

the offender’s rights. I would adhere to those precedents. The majority

overrules those precedents and instead directs district courts to enter

unenforceable open-bar-tab and shopping-cart orders. In my view, the

majority opinion is not supported by statute or case law. The majority

opinion further unsettles established practices and procedures and

creates more confusion for the district courts and other government

officials involved in the administration of criminal restitution.        I

respectfully dissent.

                                     I.

      The relevant statutes and cases can be harmonized to create fairly

clear rules regarding the assessment, imposition, and administration of

restitution. Judge Mullins provided an excellent overview of the statutory

restitution scheme in State v. Kurtz, stating,

             There are two distinct parts that make up a restitution
      order: the plan of restitution and the restitution plan of
      payment. The plan of restitution sets out the amounts and
      kind of restitution in accordance with the priorities
      established in section 910.2. The restitution plan of payment
      is the next step that sets out the schedule for the offender to
      carry out the terms of the plan of restitution.

878 N.W.2d 469, 471–72 (Iowa Ct. App. 2016) (citations omitted).        As

Judge Mullins explained in Kurtz, a complete plan of restitution sets out

all of “the amounts and kind of restitution.”     Id.   A complete plan of
                                       13

payment includes an ability-to-pay determination as well as the schedule

for the defendant “to carry out the terms of the plan of restitution.” Id.

                                       A.

      I first address the plan of restitution. It is always the district court’s

obligation to create the plan of restitution. That is, only the district court

can assess and impose the “amounts and kind of restitution in accordance

with the priorities established in section 910.2.” Kurtz, 878 N.W.2d at 471.

      The Code creates two categories of restitution. The first category of

restitution involves “restitution ‘to the victims of the offender’s criminal

activities [and] to the clerk of court for fines, penalties, [and] surcharges.’ ”

State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019) (alterations in original)

(quoting Iowa Code § 910.2(1) (2017)). The district “court is required to

order restitution for the items in this first category regardless of the

offender’s reasonable ability to pay.” Id.

      The second category of restitution includes various items, such as

court costs, costs of appointed counsel, and jail fees.         See Iowa Code

§ 910.2(1)(a)(1)–(6). At the time of sentencing, the district court has no

duty to determine whether the defendant has the reasonable ability to pay

second-category restitution where the district court does not have each

item of restitution before it. Albright explained, “Until the court issues the

final restitution order, the court is not required to consider the offender’s

reasonable ability to pay.”     Albright, 925 N.W.2d at 160–61.         Albright

reiterated, “Once the court has all the items of restitution before it, then

and only then shall the court make an assessment as to the offender’s

reasonable ability to pay.” Id. at 162 (emphasis added).

      Indeed, Albright held that it was an abuse of discretion for the

district court to affirmatively find the defendant had the reasonably ability

to pay restitution “without having the amount of each item of restitution
                                     14

before it.”    Id.    We reaffirmed this holding in State v. Gross.

935 N.W.2d 695, 701–02 (Iowa 2019) (“In Albright, the court had made an

advance determination that the defendant had a reasonable ability to pay

before certain second-category restitution amounts were actually known.

We held this was ‘contrary to the statutory scheme’; accordingly, we

reversed and remanded.” (citation omitted) (quoting Albright, 925 N.W.2d

at 162)).

      The fact that the district court does not have each item of restitution

before it at the time of sentencing does not preclude the district court from

ordering an offender to pay category-two restitution in a particular

amount. The Code specifically contemplates the district court may not be

able to set the complete plan of restitution at the time of sentencing and

provides a mechanism for the district court to establish the plan of

restitution in piecemeal fashion:

      If the full amount of restitution cannot be determined at the
      time of sentencing, the court shall issue a temporary order
      determining a reasonable amount for restitution identified up
      to that time. At a later date as determined by the court, the
      court shall issue a permanent, supplemental order, setting
      the full amount of restitution. The court shall enter further
      supplemental orders, if necessary. These court orders shall
      be known as the plan of restitution.

Iowa Code § 910.3. This court has acknowledged that “a district court

may set the actual ‘amount’ of restitution either ‘[a]t the time of sentencing

or at a later date to be determined by the court.’ ” Speer v. Blumer, 483

N.W.2d 599, 600 (Iowa 1992) (alteration in original) (quoting Iowa Code

§ 910.3). Recognizing the statutory scheme, this court has also recognized

that the district “court need not set the actual ‘amount’ of restitution at

the same time that it ‘orders’ restitution.” Id. at 600–01.
                                       15

                                       B.

      The second part of criminal restitution is the restitution plan of

payment. The Code gives the primary responsibility for establishing the

restitution plan of payment to persons other than the district court,

subject to the district court’s review and approval in some circumstances.

      When the district court places an offender on probation, the

responsibility for fashioning the restitution plan of payment is set forth in

Iowa Code sections 910.4 and 910.6. When the district court places an

offender on probation, the probation officer shall set the restitution plan

of payment and need not obtain court approval in setting the restitution

plan of payment. See id. §§ 910.4, .6. “When the offender is committed to

a county jail, or to an alternate facility, the office or individual charged

with supervision of the offender shall prepare a restitution plan of payment

taking into consideration the offender’s income, physical and mental

health, age, education, employment and family circumstances.”                Id.

§ 910.4(2). In this latter circumstance, “[t]he office or individual charged

with supervision of the offender shall review the plan of restitution ordered

by the court, and shall submit a restitution plan of payment to the

sentencing court.” Id. § 910.4(2)(a). The sentencing court “may approve

or modify the plan of restitution and restitution plan of payment.” Id.

§ 910.4(2)(c).

      When an offender is committed to the custody of the Iowa

department of corrections “pursuant to a sentence of confinement, the

sentencing court shall forward to the director a copy of the offender’s

restitution   plan   [and]   present   restitution   payment   plan   if   any.”

Id. § 910.5(1)(a). The Code vests the director of the department or the

director’s designee with the authority to “prepare a restitution plan of

payment or modify any existing plan of payment.” Id. § 910.5(1)(d). The
                                      16

restitution plan of payment shall be based on the offender’s ability to pay

when taking into consideration the offender’s individual circumstances.

See id. at § 910.5(1)(d)(1)–(2) (requiring the department of corrections to

consider the offender’s “present circumstances” when making or modifying

a plan of payment); id. at § 910.5(2)(a)(1)–(2) (same); id. at § 910.5(3)(a)(1),

(3) (same); id. at § 910.5(4)(a)(1), (3) (same); Walters v. Grossheim, 525

N.W.2d 830, 832 (Iowa 1994) (“Nevertheless the restitution plan of

payment is required to reflect individualized factors bearing on the

inmate’s ability to pay.”).

      The code also provides that the director of the department of

corrections shall adopt administrative rules relating to restitution plans of

payment. See Iowa Code § 910.5(5) (“The director of the Iowa department

of corrections shall adopt rules pursuant to chapter 17A concerning the

policies and procedures to be used in preparing and implementing

restitution plans of payment for offenders . . . .”). The department has

adopted the required rules. The rules provide for predeprivation notice

and the opportunity to challenge any restitution plan of payment prior to

deduction from an inmate’s account.         See Iowa Admin. Code r. 201—

20.11(4)–(5).

                                      C.

      As set forth above, the Code creates a flexible and workable

structure for the assessment, imposition, and administration of criminal

restitution. The Code recognizes that frequently a sentencing court will

not have all of the relevant information before it at the time of sentencing.

The Code allows the sentencing court to proceed based upon the

information “identified up to that time.” Iowa Code § 910.3. The Code also

recognizes that other government officials have a part to play in
                                     17

establishing and administering the restitution plan of payment subject, in

some instances, to the district court’s review and approval.

      In the event that an offender actually has an issue with the plan of

restitution or restitution plan of payment, the Code also provides a

mechanism for the district court to review and modify the offender’s plan

of restitution or restitution plan of payment. “[T]he offender or the office

or individual who prepared the offender’s restitution plan may petition the

court on any matter related to the plan of restitution or restitution plan of

payment. . . .” Id. § 910.7(1). Upon notice and a hearing, the district court

“may modify the plan of restitution or the restitution plan of payment, or

both.” Id. § 910.7(2). The section 910.7 process is a failsafe that ensures

an offender who takes issue with the plan of restitution or restitution plan

of payment or who needs modification based on changed circumstances

can obtain review in the district court.

                                     II.

      With that background, I directly address Davis’s claim.          Davis

contends the district court failed to determine his reasonable ability to pay

second-category restitution when, at the time of sentencing, the district

court did not have each item of restitution before it.         Under long-

established precedents, Davis’s challenge is premature and does not

entitle him to any relief.

      The leading cases resolving this type of challenge are State v. Swartz,

601 N.W.2d 348 (Iowa 1999), and State v. Jackson, 601 N.W.2d 354

(Iowa 1999).   In Swartz, the district court “ordered restitution for the

amount of the court costs and defendant’s court-appointed attorney fees

without first making a determination of the defendant’s ability to pay.”

Swartz, 601 N.W.2d at 354. Swartz concluded the defendant could not

assert his challenge on direct appeal for two reasons. “First, it [did] not
                                         18

appear that the plan of restitution contemplated by Iowa Code

section 910.3 was complete at the time the notice of appeal was filed.

Second, Iowa Code section 910.7 permits an offender who is dissatisfied

with the amount of restitution required by the plan to petition the district

court for a modification.” Id.

         In Jackson, the district court ordered the defendant to pay court

costs,    “court-appointed    attorney    fees,”   “restitution   for   pecuniary

damages,” and “room and board jail expenses,” although restitution for

pecuniary damages and restitution for room and board jail expenses were

not yet available. Jackson, 601 N.W.2d at 355. Jackson concluded the

defendant was precluded from asserting that challenge on appeal because

the plan of restitution was not complete and because the defendant could

seek relief pursuant to Code section 910.7. See id. at 357.

         We reaffirmed and clarified Swartz and Jackson in State v. Jose,

636 N.W.2d 38 (Iowa 2001). Unlike the defendants in Swartz and Jackson,

who challenged the district court’s failure to make an ability-to-pay

determination, the defendant in Jose challenged “the amount of restitution

ordered.” Id. at 43. Jose concluded the defendant could challenge on

direct appeal the amount of restitution. Id. at 45. The court explained a

challenge to the amount of restitution was separate and distinct from a

challenge to the district court’s failure to determine the defendant’s

reasonable ability to pay:

                Likewise, the facts in this case differ from those in
         Swartz and Jackson in only one respect.           Here, Jose
         challenges the amount of restitution, whereas in Swartz and
         Jackson the defendants only challenged the district court’s
         failure to determine their ability to pay. The defendants in
         Swartz and Jackson were therefore challenging the
         “restitution plan of payment,” rather than the actual “plan of
         restitution.” At issue here is the plan of restitution, rather
         than the plan of payment.
                                      19

Id. (citation omitted). Jose further explained “[t]he amount of restitution

is part of the sentencing order and is therefore directly appealable, as are

all orders incorporated in the sentence. 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.”       Id.

(second alteration in original) (citation omitted).

       Just like the defendants in Swartz and Jackson, Davis challenges

the district court’s restitution order on the ground the district ordered

Davis to pay restitution “without first making a determination of [Davis]’s

ability to pay.” Swartz, 601 N.W.2d at 354; see Jackson, 601 N.W.2d at

357.   Just like the defendants in Swartz and Jackson, “the plan of

restitution contemplated by Iowa Code section 910.3 was [not] complete at

the time [Davis’s] notice of appeal was filed.” Swartz, 601 N.W.2d at 354;

see Jackson, 601 N.W.2d at 357. Just like the defendants in Swartz and

Jackson, Davis’s challenge to the district court’s failure to determine his

reasonable ability to pay is premature. Pursuant to Swartz and Jackson,

Davis must exhaust his remedies under Iowa Code section 910.7. See

State v. Haas, 930 N.W.2d 699, 704 (Iowa 2019) (“It does not appear there

was a plan of restitution in place when Haas filed her appeal, so ‘the court

is not required to consider the offender’s reasonable ability to pay.’ ”

(quoting Albright, 925 N.W.2d at 161)); Albright, 925 N.W.2d at 161;

Swartz, 601 N.W.2d at 354; Jackson, 601 N.W.2d at 357.

                                      III.

       Rather than adhering to these precedents, the majority overrules

them. In lieu of the long-standing framework established by statute and

case law, the majority vacates the district court’s sentence with instruction

that the district court create an unenforceable order that the majority

likens to an open bar tab or an online shopping cart.         I respectfully
                                     20

disagree with this approach. Stare decisis counsels against it. Case law

and the relevant statutes prohibit it.

                                     A.

      The doctrine of stare decisis counsels against the majority’s decision

to overrule the relevant precedents. The doctrine of stare decisis holds

that courts should defer to precedent. The doctrine has much to commend

it. See State v. Gaskins, 866 N.W.2d 1, 39–40 (Iowa 2015) (Waterman, J.,

dissenting) (summarizing “values fostered by stare decisis”). Among other

things, stare decisis advances stability and consistency in the law. See

Miller v. Westfield Ins., 606 N.W.2d 301, 310 (Iowa 2000) (en banc) (Cady,

J., dissenting). It increases efficiency in the decision making process. See

Benjamin N. Cardozo, The Nature of the Judicial Process 145 (Dover

Publ’ns 2005) (1921) (“[T]he labor of judges would be increased almost to

the breaking point if every past decision could be reopened in every case,

and one could not lay one’s own course of bricks on the secure foundation

of the courses laid by others who had gone before him.”). It promotes

respect for the judiciary as a neutral decision maker and advances the rule

of law. See Gaskins, 866 N.W.2d at 40.

      The doctrine of stare decisis has particular force with respect to

cases interpreting statutes. As this court recently explained:

             [T]he path we follow in this case is one primarily built
      on the venerable principles of stare decisis and legislative
      acquiescence. We are slow to depart from stare decisis and
      only do so under the most cogent circumstances. Moreover,
      we presume the legislature is aware of our cases that interpret
      its statutes. When many years pass following such a case
      without a legislative response, we assume the legislature has
      acquiesced in our interpretation.

            ....

             . . . Overall, we think our legislature would be quite
      surprised to learn if we decided to reverse course and take a
      different position under the guise of statutory interpretation.
                                     21
      We did our job twenty-seven years ago and will leave it for the
      legislature to take any different approach. The specific
      arguments presented by the plaintiffs are not so powerful or
      obvious that they plainly undermine our prior line of cases.

Doe v. New London Cmty. Sch. Dist., 848 N.W.2d 347, 355–56 (Iowa 2014)

(alteration in original) (quoting Ackelson v. Manley Toy Direct, L.L.C., 832

N.W.2d 678, 688 (Iowa 2013)).

      There are no cogent circumstances present in this case that warrant

overruling Swartz or Jackson. Albright did not in any way modify or limit

Swartz or Jackson. To the contrary, Albright reaffirmed those decisions.

Citing Jackson, Albright explained, “Until the court issues the final

restitution order, the court is not required to consider the offender’s

reasonable ability to pay.”   Albright, 925 N.W.2d at 160–61.       Albright

reiterated, “Once the court has all the items of restitution before it, then

and only then shall the court make an assessment as to the offender’s

reasonable ability to pay.” Id. at 162 (emphasis added). Jackson and

Swartz worked in tandem with a very complex statutory scheme to create

a workable and fair framework for the assessment, imposition, and

administration of restitution in criminal matters. As in Doe, the legislature

will be “quite surprised” to learn that we have switched course after

twenty-one years and reinterpreted the restitution statutes.

                                     B.

      Neither the case law nor the relevant statutes support the majority’s

decision to vacate the district court’s sentencing order with instruction

that the district court issue an unenforceable order.

      The case law does not support the majority’s conclusion that the

district court can create an unenforceable order. The statute grants the

district court the right to enter a “temporary order” when the district court

does not have each item of restitution before it. Iowa Code § 910.3. By
                                     22

definition, an order, even a temporary order, is an enforceable command,

direction, or instruction issued by a court.      See Order, Black’s Law

Dictionary (11th ed. 2019) (stating that an order is “[a] command, direction,

or instruction” and that “[a]n order is the mandate or determination of the

court” (second quote 1 Henry Campbell Black, A Treatise on the Law of

Judgments § 1, at 5 (2d ed. 1902))).         A temporary order remains

enforceable until such time as it is superseded by or merged into a

permanent order. See E. Buchanan Tel. Coop. v. Iowa Util. Bd., 738 N.W.2d

636, 641 (Iowa 2007) (holding a temporary injunction merges into a

permanent injunction and any challenge to the temporary injunction

becomes moot after issuance of a permanent injunction); Bartsch v.

Bartsch, 636 N.W.2d 3, 10 (Iowa 2001) (“We reject the first of these claims

because it is moot; the court entered its permanent order, which did not

purport to deal with issues of child support or visitation, and at the point

the permanent order was entered, the temporary order became

ineffective.”); In re Marriage of Wagner, 604 N.W.2d 605, 610 (Iowa 2000)

(“Under these principles, when a support award in a final decree is

vacated, a temporary award is automatically reinstated as if there had

been no final decree, unless the court’s order vacating the support award

shows otherwise.”); Speer, 483 N.W.2d at 601 (stating the district court

need not set the amount of restitution at the same time it orders

restitution).

         The statutes also do not support the creation of an unenforceable

order.    The majority’s concern appears to be motivated to prevent the

department of corrections from enforcing the district court’s sentencing

order. Specifically, after sentencing, the department of corrections filed a

restitution plan. The restitution plan provided, “Pursuant to Chapter 910

of the Code of Iowa, the above listed Inmate has been ordered to pay the
                                      23

County Clerk of Court 20 percent of all credits to this inmate’s

institutional account.” The “enforcement order” about which the majority

is concerned is the statutory restitution plan of payment.          The Code

requires that persons supervising or having custody of an offender prepare

a restitution plan of payment. It is nondiscretionary. Where an offender

is on probation, the probation officer must create the plan of restitution.

See Iowa Code §§ 910.4(1), .6.      Where the offender “is committed to a

county jail, or to an alternate facility, the office or individual charged with

supervision of the offender shall prepare a restitution plan of payment.”

Id. § 910.4(2). Finally, where the offender is incarcerated and placed in

the custody of the department of corrections, the department “shall

prepare a restitution plan of payment.” Id. § 910.5(1)(d). The majority’s

effort to disallow the entry of the department of corrections’ restitution

plan of payment seeks to prohibit the Department of Corrections from

doing what it is statutorily required to do.

      Swartz, Jackson, and Jose understood this statutory structure—

that the restitution plan of payment is frequently prepared in the first

instance by someone other than the district court and that an offender

who has concerns regarding the restitution plan of payment and the
ability-to-pay determination can petition the district court for review

pursuant to section 910.7.      Those cases reach a workable solution in

accord with the statutory restitution scheme. The majority opinion works

contrary to the statutory restitution scheme.

                                      C.

      Although it appears to me our precedents can be reconciled well

enough, if there is any precedent that should be overruled, it is Albright.

Albright—not Swartz and Jackson—caused the recent problems in the

assessment, imposition, and administration of criminal restitution and the
                                    24

concomitant flood of litigation. It is Albright—not Swartz and Jackson—

that is contrary to the restitution statutes and contrary to the actual

operation of the district courts and other government officials responsible

for criminal restitution.

      First, the statute. Albright held that the district court could not

affirmatively find the defendant has the reasonable ability to pay second-

category restitution until all amounts of restitution were before the court.

The relevant statute specifically provides to the contrary.    Indeed, the

relevant statute requires it. Iowa Code section 910.3 provides, “If the full

amount of restitution cannot be determined at the time of sentencing, the

court shall issue a temporary order determining a reasonable amount for

restitution identified up to that time.” (Emphasis added.)

      The statutory text is in accord with the actual operation of the

district court and other government officials responsible for criminal

restitution.   There is no reason why the district court, at the time of

sentencing, cannot determine “a reasonable amount of restitution

identified up to that time” without knowing what additional items and

amounts of restitution will be later presented to the court. Id. § 910.3.

This is true because all items of restitution are subject to revision by the

district court.   For example, at sentencing, the district court could

determine the defendant, based on his individual circumstances, had the

reasonable ability to pay court costs and court-appointed counsel’s fees in

the amount of X dollars. Later, if the district court is presented with a

request for victim restitution, the district court could always revisit and

modify its prior assessment and imposition of court costs and court-

appointed attorney’s fees.       The offender could also petition for

reconsideration of the amount pursuant to section 910.7. If the defendant
                                      25

is dissatisfied with the result of the 910.7 hearing, he or she may appeal

the district court’s decision.

      Further, as this court has explained before, the reasonable ability to

pay is not necessarily determined by an offender’s ability to “pay the total

amount due.”     State v. Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987).

Instead, the reasonable ability to pay is “more appropriately based on the

inmate’s ability to pay the current installments.” Id. The restitution plan

of payment, which is based on the offender’s individualized ability to pay,

is in accord with this requirement.

      In contrast to Albright, the rule created in Swartz and Jackson is

practical and works to the advantage of the offender. First, an offender

who files a petition pursuant to section 910.7 will obtain relief more

quickly in the district court versus pursing an appeal.          A petition

challenging the reasonable ability to pay can be resolved in weeks. In

contrast, as this case demonstrates, an appeal challenging the reasonable

ability to pay can take months or years.      Second, and related, in the

absence of a section 910.7 hearing, there is no record for appellate review.

In the absence of such a record, the only relief an appellate court can

provide is to remand the case for a hearing on the defendant’s reasonable

ability to pay—a remedy an offender could have had long prior had he or

she simply sought relief pursuant to section 910.7.

                                      IV.

      In my view, the State is correct in contending the defendant’s

challenge to the district court’s failure to make an ability-to-pay

determination is premature. In accord with Swartz, Jackson, and Jose, I

would affirm the defendant’s sentence and would affirm the requirement

that a defendant exhaust his or her remedies pursuant to section 910.7
                                    26

before challenging the district court’s ability-to-pay determination or the

failure to make the same. For these reasons, I respectfully dissent.
