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 sentence s

. SENTENCE AFFIRMED IN PART, VACATED IN PART, AN D 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.2

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, th e district court imposed indeterm inate term s of incarceration for each offense and direct ed 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 , t he 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 l aw - e nforcement

i nitiative s urcharge (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. T he court ordered payment of r estitution for c ourt costs but made no finding of a re asonable 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 pro ducts totaling $11, 449.30. Two days la te r , and some hours after Comly filed his notice of appeal, the district court entered an order for restitution and reimbursement ordering that Comly

r eimburse the Clarke County Sheriff’s Office for room and board and medical services and products in the a mount 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 amoun t.3

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 count y for room

- and

- board fees and medical services and products. T he 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 dis trict 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 (Io wa 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 ___, ___, 20 19 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).4

before rendering judgment against him for the same. T he 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. Sm eltser , 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 re asonable ability to pay. Comly also argues the district court entered a n 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 o f 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.