IN THE COURT OF APPEALS OF IOWA

No. 20-0907

Filed October 20, 2021

DAVID MICHAEL EVANS,

Plaintiff-Appellant,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY

Defendant-Appellee.

________________________________________________________________

Certiorari to the Iowa District Court for Polk County, Christopher Kemp, 

District Associate Judge.

David Evans challenges the denial of his motion for a determination of his 

reasonable ability to pay restitution. WRIT ANNULLED.

Erin M. Carr of Carr Law Firm, P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney 

General, for appellee.

Considered by Mullins, P.J., and May and Ahlers, JJ.
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AHLERS, Judge.

In 2017 and 2018, David Evans was convicted of two separate crimes. He 

was ordered to pay restitution as part of his sentence in each case. Following the 

convictions, the Polk County Sheriff filed claims for reimbursement in both cases 

seeking to recover jail fees from Evans pursuant to Iowa Code section 356.7

(2018). The district court approved the full amount requested in both cases.

In May 2020, Evans filed a pro se motion titled, “Motion under Chapter 910.7 

Challenging Restitution.” The motion requested “a reasonable ability to pay 

analysis” regarding the outstanding balance of the restitution Evans owed in both 

cases. The court denied Evans’s motion in both cases, finding the restitution that 

was approved was enforceable as a judgment under Iowa Code chapter 626 and 

not subject to a reasonable-ability-to-pay determination. Evans filed this certiorari 

action challenging the court’s decision.1 “We review restitution orders for 

correction of errors at law.” State v. Gross, 935 N.W.2d 695, 698 (Iowa 2019).

The State argues Evans’s motion to the district court is untimely and 

otherwise an inappropriate vehicle to challenge his restitution orders. The district 

court’s orders simply found Evans’s restitution was not subject to a reasonableability-to-pay determination. As the district court did not rule on the State’s 

 

1 Evans began this appellate proceeding by filing separate direct appeals of the 

court’s orders stemming from each conviction. The supreme court consolidated 

the separate filings into one appellate proceeding. The supreme court then 

converted the proceeding into a petition for a writ of certiorari, finding certiorari the 

appropriate means to review the district court’s restitution orders. We grant the 

petition for writ of certiorari and proceed to the merits. See State v. Propps, 897 

N.W.2d 91, 97–104 (Iowa 2017) (following the procedure of granting the petition 

for writ of certiorari to reach the issues on their merits, and then, finding no error, 

annulling the writ).
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procedural arguments, they are not preserved for our review. See Meier v. 

Senecaut, 641 N.W.2d 532, 537 (2002) (“It is a fundamental doctrine of appellate 

review that issues must ordinarily be both raised and decided by the district court 

before we will decide them on appeal.”).

Evans complains to us the State never proved the amounts of restitution

approved by the district court. Evans’s filings with the district court make clear he 

only requested a reasonable-ability-to-pay determination. The court did not rule 

on whether the State proved the amounts of Evans’s restitution, so the issue is

also not preserved for our review. See id.

Regarding the reasonable-ability-to-pay issue, Evans concedes the original 

restitution orders are being treated as civil judgments with all of the attendant 

advantages and disadvantages compared to orders treated as criminal restitution. 

See Gross, 935 N.W.2d at 703–04 (describing the difference between criminal 

restitution and restitution enforced as a civil judgment). Our legislature and 

supreme court recently enacted changes to a sheriff’s ability to enforce restitution 

orders as a civil judgment. See State v. Conrad, No. 18-1363, 2020 WL 5651280, 

at *1-2 (Iowa Ct. App. Sept. 23, 2020) (describing the statutory and administrative 

changes to restitution enforced as a civil judgment). However, Evans’s restitution 

orders predate these changes. See id. Gross, which also predates these 

changes, holds restitution orders that are enforced like civil judgments are not 

subject to a reasonable-ability-to-pay determination. See 935 N.W.2d at 703–04. 

Therefore, we agree Evans is not entitled to a reasonable-ability-to-pay 

determination for his restitution orders. As for Evans’s arguments about the 

restitution shown in the “restitution plan,” these documents are not court orders
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that affect the enforceability of the restitution orders in the same manner as civil 

judgments.

Having reached the merits of Evans’s reasonable-ability-to-pay claims in his 

petition for writ of certiorari, we find no error in the district court’s conclusion that a 

determination is not available for Evans’s restitution orders that are being enforced 

as civil judgments rather than as criminal restitution.

WRIT ANNULLED.