                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1825
                             Filed October 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JESSE ROBERT COMLY III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clarke County, Randy V. Hefner,

Judge.



      Following a guilty plea, Jesse Comly appeals his sentences. SENTENCE

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




      Mark C. Smith, State Appellate Defender, (until withdrawal) and Vidhya K.

Reddy, Assistant Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Jesse Comly pled guilty to lascivious acts with a child, a class ‘C’ felony, in

violation of Iowa Code section 709.8(1)(a) (2017), and dissemination and

exhibition of obscene material to a minor, a serious misdemeanor, in violation of

section 728.2. In its judgment and sentencing order, the district court imposed

indeterminate terms of incarceration for each offense and directed that the

sentences be served consecutively with credit for all time served in connection with

the case.    The court imposed but suspended the minimum fines and 35%

surcharges. Among other things, the court ordered Comly to pay as restitution

court costs, the $25 sex offender registration fee under section 692A.110(1), a

$250 civil penalty under section 692A.110(2), and a $125 law-enforcement-

initiative surcharge (LEI) under section 911.3. The court found Comly did not have

the reasonable ability to pay restitution for court-appointed legal assistance and

ordered reimbursement of $0 for any such obligation. The court ordered payment

of restitution for court costs but made no finding of a reasonable ability to pay.

       About a month after entry of the judgment and sentence, the county sheriff,

under section 356.7, applied for restitution and reimbursement for room-and-board

fees and medical services and products totaling $11,449.30. Two days later, and

some hours after Comly filed his notice of appeal, the district court entered an order

for restitution and reimbursement ordering that Comly

       reimburse the Clarke County Sheriff’s Office for room and board and
       medical services and products in the amount of $11,449.30 plus any
       costs for medical services and products provided to [Comly] while
       [he] was incarcerated and the bills have been received as of this date
       by the Sheriff’s Office, and that judgment is hereby entered against
       [Comly] in that amount.
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The order further provided that “this Order shall constitute a plan of restitution

unless [Comly] files an objection hereto within 10 days of this Order.” Nothing in

our record indicates the court made a reasonable-ability-to-pay determination of

Comly’s ability to reimburse the county for room-and-board fees and medical

services and products. The order entered against Comly became “a judgment for

purposes of enforcement by the sheriff” upon approval by the court. Iowa Code

§ 356.7(3).

       Comly appeals arguing the district court improperly ordered him to pay

restitution for court costs, including correctional fees, without first determining his

reasonable ability to pay the same.1 The State argues Comly’s challenge is

premature “because the district court has not yet issued a final restitution order.”

We disagree. While the supreme court has stated “[r]estitution orders entered by

the court prior to the final order are not appealable as final orders,” State v. Albright,

925 N.W.2d 144, 161 (Iowa 2019), both of Iowa’s appellate courts have often

vacated restitution-related orders absent a final restitution order.2

       The district court can only order restitution for “court costs including

correctional fees approved pursuant to section 356.7” to the extent that the

offender has the reasonable ability to pay. Iowa Code § 910.2(1); Albright, 925

N.W.2d at 159.       Here, the district court made no determination of Comly’s

reasonable ability to pay restitution for court costs, including correctional fees,



1
   Our supreme court decided recent amendments to Iowa Code section 814.6 (2019)
limiting direct appeals from guilty pleas apply only prospectively and do not apply to cases,
like this one, pending on July 1, 2019. See State v. Macke, ___ N.W.2d ___, ___, 2019
WL 4382985, at *7 (Iowa 2019).
2
  See State v. Moore, No. 18-1877, 2019 WL 4297255, at *5 n.3 (Iowa Ct. App. Sept. 11,
2019) (collecting cases).
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before rendering judgment against him for the same. The imposition of court costs,

including correctional fees, “must await the filing of a final restitution plan and a

determination of [Comly]’s ability to pay.” State v. Smeltser, No. 18-0098, 2019

WL 2144683, at *1 (Iowa Ct. App. May 15, 2019). Applying Albright, we vacate

the court’s orders for restitution and remand the matter to the district court for

receipt of a final restitution plan and a determination of Comly’s reasonable ability

to pay.

          Comly also argues the district court entered an illegal sentence in imposing

the $125 LEI surcharge. The statutory surcharge does not apply to the offenses

to which Comly pled guilty. The State agrees. We vacate that portion of Comly’s

sentence and remand for entry of a corrected sentencing order omitting the LEI

surcharge.

          SENTENCE       AFFIRMED      IN   PART,    VACATED      IN   PART,     AND

REMANDED.
