IN THE SUPREME COURT OF IOWA

No. 18–0690

Filed November 15, 2019

STATE OF IOWA,

Appellee,

vs.

LARRY LEROY GROSS JR.,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, 

Scott D. Rosenberg, Judge.

A defendant convicted of a criminal offense challenges an order that 

he pay jail fees for pretrial detention. AFFIRMED.

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

Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, 

Assistant Attorney General.
2

MANSFIELD, Justice.

I. Introduction.

After a defendant was convicted of arson in the second degree, the 

county sheriff sought recovery of fees under Iowa Code section 356.7 for 

the defendant’s pretrial detention. The sheriff did not, however, ask that 

the fees be included in restitution. See Iowa Code § 356.7(2)(i) (2017). The 

district court ordered the defendant to pay the requested amount. 

On appeal, the defendant claims the court should have determined

his reasonable ability to pay those jail fees before awarding them. The 

State counters that because the fees were not awarded as part of 

restitution, the district court was not required take into account the 

defendant’s reasonable ability to pay.

On our review, we affirm the order of the district court and the 

decision of the court of appeals. Based on our reading of the statutes, we 

find that because the sheriff did not ask for the fees to be included in 

restitution, the amount is not subject to the reasonable-ability-to-pay 

limitations on restitution set forth in Iowa Code chapter 910. This means, 

however, that certain pathways available for collecting restitution are not

available here.

II. Facts and Procedural History.

On June 29, 2017, Des Moines police officers responded to a house 

fire at the home of Larry Gross. Four others resided in the house and were 

also present when the fire started: (1) Megan Gross, Larry’s wife; (2) Geoff 

Hansen, a lifelong friend of Larry’s who was renting a room from Larry; 

(3) Chris Hope, who lived in the basement with Nicole Pote; and (4) Nicole 

Pote. Based upon their investigation, the police determined that Larry 

Gross had knowingly set fire to his home with the intent to destroy or 

damage his home. According to police reports, Gross told Megan and Geoff 
3

to grab anything they cared about because he had just lit the house on 

fire.

On August 9, the State charged Gross with arson in the first degree. 

See Iowa Code § 712.2. Pending trial, Gross was held on a $25,000 cash 

or surety bond. Gross never posted bail. On October 19, under a plea 

agreement, Gross pled guilty to arson in the second degree. See id.

§§ 712.1, .3.

On January 5, 2018, the district court sentenced Gross to prison for 

a term not to exceed ten years with credit for time served. See id.

§ 902.9(1)(d). The court also indicated there would be restitution, stating, 

“There will be restitution. If there is restitution, I assume there will be a 

supplemental order?” to which the State responded, “Correct, Your 

Honor.” The court later added, “You could be ordered to make restitution, 

which is financial compensation, for any monetary loss that may be 

suffered by the victim of the crime, if you’re financially able to do so.”

The court memorialized this open-ended determination in its 

sentencing order, which stated, “Defendant is ordered to make restitution 

in the amount of $TBD. . . . If the amounts of restitution are not available 

at the time of sentencing, a supplemental order will follow.” The 

sentencing order also suspended fines because of Gross’s incarceration 

and waived attorney fees “based on the circumstances and Mr. Gross’s 

present situation, that he cannot afford [to] pay the fees and costs of the

state public defender.”

On January 8, Gross appealed his conviction. On November 21, the 

court of appeals affirmed Gross’s conviction, finding that his plea was 

supported by a factual basis. Pending appeal, Gross was held on a 

$20,000 cash appeal bond. Gross did not post this bond either.
4

Meanwhile, on April 6, the Polk County Sheriff’s Department filed 

an application for reimbursement for $11,415, consisting of Gross’s room 

and board for 197 days of incarceration at the Polk County Jail from 

June 29, 2017, through January 11, 2018. See id. § 356.7(2)(i). On 

April 9, the district court entered an order in the criminal case approving

the sheriff’s claim for $11,415 in correctional fees. The order stated, in 

part,

IF YOU DISPUTE THE AMOUNT OWED, PLEASE 

CONTACT THE POLK COUNTY JAIL AT 515-323-5411 OR 

VISIT THEIR WEBSITE AT https://wvw.polkcountyiowa.gov 

/sheriff/divisions/detention/inmate-room-board/.

ANY DEFENDANT AGGRIEVED BY THE ABOVE 

ORDER MAY FILE AN APPLICATION WITH THE COURT TO 

HAVE THE COURT REEXAMINE THIS DECISION. THE 

APPLICATION MUST BE FILED WITHIN 15 DAYS AFTER THE 

FILING OF THE COURT’S ORDER[.]

Payments may be mailed or made in person:

Attn: Accounting Clerk

Polk County Jail

1985 NE 51st Place

Des Moines, Iowa 50313

(Citation omitted.) The order was mailed to Gross’s home address in 

Des Moines and not to the Mt. Pleasant Correctional Facility where he was 

then confined.

On April 16, Gross initiated an appeal of the order approving the 

sheriff’s claim for reimbursement of jail room and board. His pro se notice 

of appeal also included a financial affidavit claiming indigence and 

requesting appointment of counsel.

Gross was appointed appellate counsel, and later, his appeal was 

transferred to the court of appeals. Just over a year later, on 

April 17, 2019, the court of appeals affirmed the district court’s 

reimbursement order, finding that it was a civil judgment executable
5

under chapter 626—not a restitution award under chapter 910—and 

therefore exempt from a reasonable-ability-to-pay analysis.

On May 7, Gross applied for further review, and we granted his 

application.

III. Standard of Review.

We review restitution orders for correction of errors at law. State v. 

Jenkins, 788 N.W.2d 640, 642 (Iowa 2010). In doing so, “[w]e determine 

whether the court’s findings lack substantial evidentiary support, or 

whether the court has not properly applied the law.” State v. Albright, 925 

N.W.2d 144, 158 (Iowa 2019) (quoting State v. Klawonn, 688 N.W.2d 271, 

274 (Iowa 2004)). “We review rulings on questions of statutory 

interpretation for correction of errors at law.” State v. Iowa Dist. Ct., 889

N.W.2d 467, 470 (Iowa 2017) (quoting State v. Olutunde, 878 N.W.2d 264, 

266 (Iowa 2016)).

IV. Did the District Court Err in Ordering Gross to Pay for Room 

and Board for His Time Spent in Jail Without Finding that He Had the 

Reasonable Ability to Pay?

A. Error Preservation. Generally, error is preserved on an issue if

(1) a party raises the issue before the district court, (2) the district court 

rules upon the issue, and (3) the party again raises the issue on appeal. 

State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002). However, 

the rule of error preservation “is not ordinarily applicable to void, illegal or 

procedurally defective sentences.” State v. Richardson, 890 N.W.2d 609, 

615 (Iowa 2017) (quoting State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. 

App. 1994)).

The State argues that Gross failed to preserve error at the district 

court level by not seeking reconsideration as suggested in the district 

court’s April 9, 2018 order or, alternatively, seeking enlargement of that 
6

order pursuant to Iowa Rule of Civil Procedure 1.904(2). This is consistent 

with the State’s position that the award was a civil judgment and that the 

rules of error preservation for civil matters apply.

Gross counters that because he was not served the order for roomand-board fees which was mailed to his former home address in 

Des Moines rather than his location of confinement, he could not have 

sought reconsideration or enlargement. Furthermore, Gross asserts that 

when the court entered an order for room-and-board reimbursement 

without a consideration of his reasonable ability to pay the $11,415 bill, 

he did not have to object because this was the type of sentencing objection 

that could be raised for the first time on appeal.

Neither side’s position is entirely persuasive. On the one hand, 

although the district court order was apparently mailed to Gross’s home 

address, he received a copy in prison and was able to mail a pro se notice 

of appeal from prison by April 16. Gross’s pro se notice of appeal arrived 

at the district court on April 18. This was only nine days after the entry 

of the district court order and would have been within the fifteen-day 

deadline had Gross sought reconsideration. Whatever the service issue 

was, it did not cause Gross to miss the reconsideration deadline.

On the other hand, restitution is part of a sentence, and when a 

party appeals a sentence, some issues may be raised for the first time on 

appeal even though they were not raised in the district court. See State v. 

Gordon, 921 N.W.2d 19, 22–23 (Iowa 2018). One such issue is whether 

the sentencing court determined the defendant’s reasonable ability to pay 

before imposing restitution. In none of our recent reasonable-ability-topay decisions is there any indication that the defendant raised the absence 

of a reasonable-ability-to-pay hearing until taking his or her direct appeal. 

See State v. Headley, 926 N.W.2d 545, 549, 553 (Iowa 2019); State v. Petty, 
7

925 N.W.2d 190, 194, 197 (Iowa 2019); State v. Covel, 925 N.W.2d 183, 

187, 189 (Iowa 2019); Albright, 925 N.W.2d at 149, 158–62. This does not 

mean that such an award of restitution is illegal and may be challenged at 

any time by filing a motion to correct an illegal sentence. Instead, as we 

have previously held, once 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. See State v. Jose, 636 N.W.2d 

38, 46–47 (Iowa 2001); State v. Janz, 358 N.W.2d 547, 549 (Iowa 1984).

Thus, error preservation is intertwined with the merits. If the award 

of jail fees is the equivalent of a civil judgment, then the State may have a

point that Gross should have sought reconsideration under Iowa Rule of 

Civil Procedure 1.904(2).1 If the award of jail fees is part of restitution, 

then Gross can raise the lack of a reasonable-ability-to-pay hearing for the 

first time in a timely direct appeal. We will therefore proceed to the merits.

B. Statutory Framework. We begin with a discussion of the 

statutory framework. Jail fees are governed by Iowa Code section 356.7, 

entitled “Charges for administrative costs and room and board—

enforcement procedures.” Section 356.7(1) provides,

 1We do not decide today whether Iowa Code section 356.7 authorizes immediate 

court approval of the sheriff’s claim in the criminal case subject to the defendant’s 

opportunity to file a motion for reconsideration within fifteen days. In its brief, the State

observes,

A reimbursement claim under section 356.7 could be filed as a 

separate civil action, even where the sheriff elects to enforce the claim as 

restitution. Experience suggests that these claims are commonly filed in 

the criminal case, as was the instant claim. The State believes that the 

best practice—and one that would lead to significantly less confusion 

about the district court’s duty—would be to file reimbursement claims as 

separate civil actions regardless whether the sheriff elects to enforce the 

judgment under chapter 626 or as restitution.

Appellee’s Br. 11 n.1.

As discussed below, we also do not decide whether the procedure followed in this 

case complies with due process. Those matters are not before the court.
8

The county sheriff, or a municipality operating a temporary 

municipal holding facility or jail, may charge a prisoner who 

is eighteen years of age or older and who has been convicted 

of a criminal offense or sentenced for contempt of court for 

violation of a domestic abuse order for the actual 

administrative costs relating to the arrest and booking of that 

prisoner, for room and board provided to the prisoner while in 

the custody of the county sheriff or municipality, and for any 

medical aid provided to the prisoner under section 356.5. . . . 

The county attorney may file the reimbursement claim on 

behalf of the sheriff and the county or the municipality. The 

attorney for the municipality may also file a reimbursement 

claim on behalf of the municipality.

Iowa Code § 356.7(1).

Iowa Code section 356.7(2) provides,

The sheriff, municipality, or the county attorney, on behalf of 

the sheriff, or the attorney for the municipality, may file a 

reimbursement claim with the clerk of the district court which 

shall include all of the following information, if known . . . .

This is followed by a list of eight items that must be included (if known) in 

the claim:

a. The name, date of birth, and social security number 

of the person who is the subject of the claim.

b. The present address of the residence and principal 

place of business of the person named in the claim.

c. The criminal proceeding pursuant to which the claim 

is filed, including the name of the court, the title of the action, 

and the court’s file number.

d. The name and office address of the person who is 

filing the claim.

e. A statement that the notice is being filed pursuant 

to this section.

f. The amount of room and board charges the person 

owes.

g. The amount of administrative costs the person owes.

h. The amount of medical aid the person owes.

Id. § 356.7(2)(a)–(h). Further, this section provides,
9

i. If the sheriff or municipality wishes to have the 

amount of the claim for charges owed included within the 

amount of restitution determined to be owed by the person, a 

request that the amount owed [shall] be included within the 

order for payment of restitution by the person.

Id. § 356.7(2)(i).

In short, there are eight mandatory items, plus the option of 

requesting that the jail fees be included in the restitution order.

Section 356.7(3) continues,

Upon receipt of a claim for reimbursement, the court shall 

approve the claim in favor of the sheriff or the county, or the 

municipality, for the amount owed by the prisoner as 

identified in the claim and any fees or charges associated with 

the filing or processing of the claim with the court. The sheriff 

or municipality may choose to enforce the claim in the manner 

provided in chapter 626. Once approved by the court, the 

claim for the amount owed by the person shall have the force 

and effect of a judgment for purposes of enforcement by the 

sheriff or municipality.

Id. § 356.7(3).

Notable is the language allowing the sheriff to “choose to enforce the 

claim in the manner provided in chapter 626.” Id.; see also id. ch. 626. 

Chapter 626 prescribes the various procedures for collecting on money 

judgments. See, e.g., id. § 626.1 (“Judgments or orders requiring payment 

of money, or the delivery of the possession of property, are to be enforced 

by execution. Obedience to those requiring the performance of any other 

act is to be coerced by attachment as for contempt.”).

Originally, Iowa Code section 356.7 contemplated only a 

reimbursement lien. See 1996 Iowa Acts ch. 1081, § 1 (codified as 

amended at Iowa Code § 356.7 (1997)); id. ch. 1219, § 71 (codified as 

amended at Iowa Code § 356.7 (1997)). This perhaps explains why even 

today it entails only a filing with the district court clerk. See Iowa Code 

§ 356.7(2) (2017). The following year, though, the general assembly 

broadened the scope and significance of the statute. See 1997 Iowa Acts 
10

ch. 140, §§ 1–2 (codified as amended at Iowa Code § 356.7 (Supp. 1997)). 

It changed “lien” to “claim,” created the option described above for the 

sheriff to have the award of jail fees included in restitution, and also got 

the court involved for the first time. See id. Thus, section 356.7(3), which 

had read, “The filing of a room and board reimbursement lien in 

accordance with this section creates a lien in favor of the sheriff in any 

personal or real property identified in the lien to the extent of the interest 

held in that property by the person named in the lien,” Iowa Code 

§ 356.7(3) (1997), was considerably modified and expanded to take on 

essentially its present form, see id. § 356.7(3) (2017). Seemingly, the 1997 

amendments transformed a prior lien statute into a choice of pursuing 

either (1) incorporation of jail fees within the restitution order or (2) a civil

judgment alone for those fees.

Restitution is governed by Iowa Code chapter 910. The chapter 

makes several cross-references to section 356.7. Section 910.1(4)

provides, in part, “ ‘Restitution’ also includes . . . court costs including 

correctional fees approved pursuant to section 356.7 . . . .” Iowa Code 

§ 910.1(4). Section 910.2(1)(a) states, in part,

In all criminal cases in which there is a plea of guilty, verdict 

of guilty, or special verdict upon which a judgment of 

conviction is rendered, the sentencing court shall order that 

restitution be made by each offender to the victims of the 

offender’s criminal activities, to the clerk of court for fines, 

penalties, surcharges, and, to the extent that the offender is 

reasonably able to pay, . . . [c]ourt costs including correctional 

fees approved pursuant to section 356.7 . . . .

Id. § 910.2(1). Section 910.3 provides, in part,

The clerk of court shall prepare a statement of . . . court costs 

including correctional fees claimed by a sheriff or municipality 

pursuant to section 356.7, which shall be provided to the 

presentence investigator or submitted to the court at the time 

of sentencing. 
11

Id. § 910.3.

Section 910.3 also indicates that 

[i]f 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.

Id.

C. Relevant Caselaw. We will now turn to the relevant judicial 

precedents. Iowa Code chapter 910 has generated a cornucopia of 

caselaw, but this case centers on a single, recent decision. In Albright, we 

addressed the suitable procedure for ordering restitution and for 

considering a defendant’s reasonable ability to pay restitution. 925 

N.W.2d at 158–62. We noted the restitution statute “creates two categories 

of restitution.” Id. at 159 (citing Iowa Code § 910.2(1)). The first category, 

consisting of victim restitution and statutory fines, penalties, and 

surcharges, must be ordered “regardless of the offender’s reasonable 

ability to pay.” Id. (citing Iowa Code § 910.2(1)). The second category, 

consisting of crime victim assistance reimbursement, restitution to public 

agencies, court-appointed attorney fees, and court costs including 

correctional fees, can be ordered only “to the extent the offender has the 

reasonable ability to pay.” Id.

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. Id. at 149. We held this was 

“contrary to the statutory scheme”; accordingly, we reversed and 

remanded. Id. at 162–63.

Thus, in Albright, we summarized the required restitution procedure 

as follows:
12

[W]e urge courts to do everything possible to have all items of 

restitution before the court at the time of sentencing. Courts 

must wait to enter a final order of restitution until all items of 

restitution are before the court. 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. A court should make every effort to determine 

an offender’s financial condition as early as possible. This 

may require the offender filing an updated financial 

statement, a colloquy with the offender, or both. A court 

cannot impose restitution on an offender for the items subject 

to the offender’s reasonable ability to pay if the offender does 

not have a reasonable ability to pay those items. Finally, 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. Hence, Albright makes clear that with respect to restitution, no 

award of reasonable-ability-to-pay items such as jail fees may occur until 

all such items are before the court and the court has then made a 

reasonable-ability-to-pay determination. Id.

We have since applied Albright in a number of other cases. See, e.g.,

Headley, 926 N.W.2d at 553 (reversing and remanding in light of Albright); 

State v. McMurry, 925 N.W.2d 592, 601–02 (Iowa 2019) (same); Petty, 925 

N.W.2d at 197–98 (same); Covel, 925 N.W.2d at 189–90 (same).

In contrast to Iowa Code chapter 910, section 356.7 has received 

relatively little attention from this court. The statute received detailed 

scrutiny for the first and perhaps only time in State v. Abrahamson, 696 

N.W.2d 589, 591–93 (Iowa 2005). There, six convicted criminal defendants 

challenged the inclusion of Lucas County jail room and board in their 

restitution orders. Id. at 590. We confirmed that Iowa Code section 356.7 

established two options:

Under section 356.7(3), a court-approved claim for room and 

board may be enforced in two ways: as a judgment in the 

traditional sense, under Iowa Code chapter 626, or as part of 

a restitution plan under chapter 910. Under 

section 356.7(2)(g) [now section 356.7(2)(i)], a sheriff, if he 
13

decides to collect the claim under the restitution plan, must 

so state in the original claim.

Id. at 591. We noted that the sheriff in Abrahamson had chosen the latter 

option, “specifically stating in his claims that he elected to collect the 

amounts under the restitution alternative.” Id. However, we affirmed the 

restitution orders because the defendants “got exactly what they requested 

[in their resistance in the district court]—a hearing that considered all of 

the factors under section 910.3 (necessity and reasonableness of the 

charges and the defendants’ ability to pay).” Id. at 592.

We then went on,

Because the sheriff did not elect to collect the claim for 

room and board under the chapter 626 alternative, but rather 

treated them as claims for restitution under chapter 910 and 

the defendants received a full hearing on the restitution claim, 

it is not necessary for us to consider the argument that the 

“shall approve” language of the statute renders it invalid. 

Nevertheless, we do so to provide guidance in those cases in 

which a sheriff requests court approval of a claim as a 

condition precedent to collection of it under the regular 

judgment collection provisions of chapter 626, rather than 

through restitution.

Id. We held that the “shall approve” language was “a grant of authority to 

the court to resolve the merits of the claim—not a mandate that it simply 

sign the order as a ministerial function.” Id. at 593.

This leads us now to the crux of the matter today. We must 

determine, in an instance when the sheriff does not include a request to 

include the jail fees claim within restitution, whether the district court is 

required to consider the defendant’s reasonable ability to pay in assessing 

correctional fees pursuant to Iowa Code section 356.7. In short, is 

recovery of jail fees under section 356.7 always subject to a reasonableability-to-pay screen or only when such fees are intentionally included in 

a restitution order?
14

D. Answering the Question. We begin by reviewing the statutes 

themselves. “If the language is unambiguous, our inquiry stops there.” 

Richardson, 890 N.W.2d at 616. Nothing in Iowa Code section 356.7 itself 

makes the recovery of jail room and board subject to a reasonable-abilityto-pay limitation. The limitation appears only in chapter 910 governing 

restitution, and section 356.7(2)(i) allows but does not require the sheriff 

to include the amount of the claim in restitution. We confirmed in 

Abrahamson that a “claim for room and board may be enforced in two 

ways: as a judgment in the traditional sense, under Iowa Code 

chapter 626, or as part of a restitution plan under chapter 910.” 696 

N.W.2d at 591. Thus, where the sheriff does not opt for the second route—

i.e., to have jail fees included in restitution—a restitution-only limit 

seemingly should not apply.

When we consider other tools of statutory interpretation, we find 

additional support for the view that an award of jail fees is not subject to 

a reasonable-ability-to-pay limitation unless the fees are a component of 

restitution. One such tool is legislative history. See Iowa Code § 4.6(3); 

State v. Doe, 903 N.W.2d 347, 352 (Iowa 2017). The original version of the 

1997 amendment did not contain a restitution option, only a civil 

judgment option. See S.S.B. 95, 77th G.A., 1st Sess. § 1 (Iowa 1997). The 

bill explanation for that version stated,

This bill provides that claims for reimbursement for 

room and board provided while a prisoner is in the custody of 

a county sheriff may be filed by the sheriff or the county 

attorney with the district court as part of the criminal 

proceeding. Upon receipt of a claim for reimbursement, the 

court is to enter judgment against the prisoner in an amount 

equal to the value of the room and board provided to the 

prisoner while the prisoner was in the county sheriff’s custody. 

The sheriff may enforce the judgment through a writ of 

execution under chapter 626.
15

Id. explanation (emphasis added). Although the restitution option was 

added later to the 1997 amendment, it does not appear the legislature 

added any language altering the effect of the judgment option. Indeed, the 

fiscal note for the final version of the bill states, “The Court is to enter the

judgment against the prisoner in an amount equal to the value of the room 

and board provided to the prisoner, plus any associated court fees or 

charges.” S.F. 184, 77th G.A., 1st Sess. fiscal note.

Another tool of statutory interpretation is to examine the 

consequences of a particular interpretation and see whether that 

interpretation makes practical sense. See Iowa Code § 4.4(3); Doe, 903 

N.W.2d at 353. Does the State’s position simply give the sheriff an easy 

way to circumvent Albright and the reasonable-ability-to-pay limitation on 

restitution in chapter 910?

We think not. There is a tradeoff when the sheriff pursues only a 

civil judgment instead of a restitution award. A restitution award may be 

enforced like a civil judgment, see Iowa Code § 910.7A(2), but it is more 

powerful in several ways. “[R]estitution shall be a condition of probation.” 

Id. § 910.4(1). If the offender fails to comply with the restitution plan, 

probation may be revoked. Id. § 910.4(1)(b). Likewise, “restitution shall 

be a condition of work release.” Id. § 910.5(2). If the offender fails to pay 

the restitution, work release may be revoked. Id. § 910.5(2)(b). And 

“restitution shall be a condition of parole.” Id. § 910.5(4). Furthermore, 

jail fees that are included in restitution are not generally dischargeable in 

bankruptcy. See 11 U.S.C. § 1328(a)(3) (2012) (exempting from discharge 

in a Chapter 13 bankruptcy any debt “for restitution, or a criminal fine, 

included in a sentence on the debtor’s conviction of a crime”); Kelly v. 

Robinson, 479 U.S. 36, 50, 107 S. Ct. 353, 361 (1986) (holding that 

restitution obligations imposed in criminal judgments are not 
16

dischargeable in a Chapter 7 bankruptcy); see also State v. Mayberry, 415 

N.W.2d 644, 646 (Iowa 1987). When an inmate engages in private 

employment, restitution may be deducted from his or her wages under a 

priority scheme. See Iowa Code § 904.809(5)(c)(2); State v. Morris, 858 

N.W.2d 11, 15 (Iowa 2015). Thus, when the sheriff elects not to include 

jail fees in restitution, she or he is giving up some advantages. Restitution 

is a condition of probation, parole, and work release, and can’t be 

discharged in bankruptcy.

Gross argues that the sheriff’s effort to collect jail fees must be 

subject to the reasonable-ability-to-pay limitation in Iowa Code 

chapter 910 because the sheriff here did not file a separate civil action. As 

he puts it, “[B]ecause the room and board reimbursement claim was filed 

in the criminal case, it is a restitution order and not a civil judgment.” 

Appellant’s Reply Br. 7. As noted above, the State concedes that filing a 

separate civil action would be the “best practice.” Appellee’s Br. 11 n.1. 

But echoing the days when section 356.7 was only a lien provision, 

section 356.7 simply requires the sheriff to “file a reimbursement claim 

with the clerk of the district court” setting forth certain information. Iowa 

Code § 356.7(2). It does not require “filing a petition with the court,” which 

is the only way to commence a civil action. Iowa R. Civ. P. 1.301(1) (“For 

all purposes, a civil action is commenced by filing a petition with the 

court.”). Note also that section 356.7 allows the sheriff herself or himself 

to file the claim with the clerk, even though the sheriff may not be an 

attorney and the funds belong to the county (although sixty percent are to 

be used for law enforcement and detention facility purposes). See Iowa 

Code § 356.7(1), (2), (5)(a).

It is true, of course, that defendants are entitled to due process

before judgments for jail fees are entered against them. “As a general 
17

matter, due process requires, at a minimum, notice and an opportunity to 

be heard.” Bonilla v. Iowa Bd. of Parole, 930 N.W.2d 751, 778 (Iowa 2019). 

Gross does not claim that the assessment of room-and-board fees in this 

case denied him due process, and we leave those issues to another case 

and another day.

In the past, we have recognized that “reasonable ability to pay is a 

constitutional prerequisite for a criminal restitution order such as that 

provided by Iowa Code chapter 910.” State v. Van Hoff, 415 N.W.2d 647, 

648 (Iowa 1987). This case, as we have held, involves an order with the 

effect of a civil judgment and not a criminal restitution order. Gross does 

not contend that a civil judgment is subject to the same constitutional 

constraints. We leave those issues as well to another case and another 

day.

We also do not resolve additional issues that may be presented when 

the sheriff seeks recovery of jail fees without bringing a separate civil action 

and without including those fees in restitution. Must the defendant be 

served “in any mode provided in this Code other than by publication”? 

Iowa Code § 624.22. How is the entry of the award recorded in the court 

docket? See id. § 602.8104(2)(b) (discussing the judgment docket). Under 

section 602.8107(1)(a), it appears that fees “charged under section 356.7” 

would be considered “court debt” whether imposed as part of restitution 

or otherwise. Id. § 602.8107(1)(a). If so, this means they would be “owed 

and payable to the clerk of the district court.” Id. § 602.8107(2). But in 

that event, how is restitution court debt tracked separately from 

nonrestitution court debt?
18

Finally, as the judicial branch of government, and not the legislative 

or executive, we leave to others to determine the appropriate policy in this 

area.2

 2It appears that a number of other states—as a matter of legislative policy—

consider an offender’s reasonable ability to pay when assessing jail fees whether or not 

those fees fall under restitution. See 730 Ill. Comp. Stat. Ann. 125/20(a) (West, Westlaw 

through P.A. 101-412, 2019 Reg. Sess.) (“The county board may require convicted 

persons confined in its jail to reimburse the county for the expenses incurred by their 

incarceration to the extent of their ability to pay for such expenses. . . . The State’s

Attorney of the county in which such jail is located may, if requested by the County Board, 

institute civil actions in the circuit court of the county in which the jail is located to 

recover from such convicted confined persons the expenses incurred by their 

confinement.”); Ky. Rev. Stat. Ann. § 441.265(1), (2)(b) (West, Westlaw through 2019 Reg. 

Sess.) (authorizing reimbursement of county jail fees and the filing of civil actions for their 

recovery, but providing a “good cause” exception to their award and also stating that 

“[r]ates charged may be adjusted in accordance with the fee and expense reimbursement 

policy based upon the ability of the prisoner confined to the jail to pay, giving 

consideration to any legal obligation of the prisoner to support a spouse, minor children, 

or other dependents”); Minn. Stat. Ann. § 641.12(1), (3)(b) (West, Westlaw through 2019 

Reg. & 1st Spec. Sess.) (authorizing the collection of jail fees as an item separate from 

restitution but stating that “[t]he chief executive officer of the local correctional agency or 

sheriff shall waive payment of the costs under this subdivision if the officer or sheriff 

determines that the person does not have the ability to pay the costs, payment of the 

costs would create undue hardship for the person or the person’s immediate family, the 

prospects for payment are poor, or there are extenuating circumstances justifying waiver 

of the costs”); Mo. Ann. Stat. § 217.831(3) (West, Westlaw through 2019 1st Reg. & 1st 

Extraordinary Sess.) (“If the attorney general upon completing the investigation [into an 

offender’s assets and estimated total cost of care while confined] has good cause to believe 

that an offender or former offender has sufficient assets to recover not less than ten 

percent of the estimated cost of care of the offender or ten percent of the estimated cost 

of care of the offender for two years, whichever is less, or has a stream of income sufficient 

to pay such amounts within a five-year period, the attorney general may seek to secure 

reimbursement for the expense of the state of Missouri for the cost of care of such offender 

or former offender.”); Mont. Code Ann. § 7-32-2245(1) (West, Westlaw through 2019

Sess.) (entirely separate from its restitution statute, stating that “[a]n inmate found by 

the sentencing court to have the ability to pay is liable for costs, including actual medical 

costs, of the inmate’s confinement in a detention center”); Ohio Rev. Code Ann. 

§ 2929.18(A) (West, Westlaw through files 1–15 & 18 of 133d Gen. Assemb.) (authorizing 

“[r]eimbursement by the offender of any or all of the costs of sanctions incurred by the 

government, including . . . [a]ll or part of the costs of confinement . . . provided that the 

amount of reimbursement ordered under this division shall not exceed the total amount 

of reimbursement the offender is able to pay as determined at a hearing and shall not 

exceed the actual cost of confinement”); Tex. Code Crim. Proc. Ann. art. 42.038(c)–(d) 

(West, Westlaw through 2019 Reg. Sess.) (permitting a court to consider any special 

circumstances that may affect the defendant’s ability to pay when deciding whether to 

order reimbursement for costs of confinement separate from restitution).
19

V. Conclusion.

For the foregoing reasons, we affirm the district court’s judgment

and the decision of the court of appeals.

AFFIRMED.

All justices concur except Wiggins, J., who concurs specially.
20

#18–0690, State v. Gross

WIGGINS, Justice (concurring specially).

I agree with the result reached by the majority, and I further agree 

that the judgment under Iowa Code section 356.7 (2017) is a civil 

judgment. I feel compelled to write in order to point out the hazards of a 

county or city using this section to collect jail room and board and medical 

aid from a convicted inmate. 

The majority states Gross did not raise a due process claim. The 

majority correctly states, “As a general matter, due process requires, at a 

minimum, notice and an opportunity to be heard.” Bonilla v. Iowa Bd. of 

Parole, 930 N.W.2d 751, 778 (Iowa 2019). My concern is—and the concern 

of every county and city should be—whether the judgment is collectable 

without providing a defendant due process. The United States Supreme 

Court has held property taken from a defendant who did not receive 

adequate notice and opportunity to be heard must be returned to the 

defendant. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 

313, 320, 70 S. Ct. 652, 656–57, 660 (1950). Is a county or city subject 

to a wrongful execution, attachment, or garnishment suit if notice and 

opportunity to be heard was inadequate under the Constitution?

My next concern is whether counties or cities are seizing assets from 

prisoners in violation of Iowa’s garnishment restrictions. Iowa Code 

section 642.21 limits the amount of a person’s wages that a judgment 

creditor can garnish under federal and state law. Most likely, any amount 

garnished from a prisoner’s wages violates this Code section. Is a county 

or city subject to a wrongful execution, attachment, or garnishment suit if 

it violates section 642.21?

Thirdly, how many counties and cities are trying to collect on a 

section 356.7 judgment after the expiration of the statute of limitations for 
21

collecting the judgment? Section 614.1(6) limits the time period in which 

to bring an action to collect on a judgment to twenty years. And section 

614.17A(1) prohibits an action to establish an interest in real estate if the 

action is based on a claim existing for more than ten years. Additionally, 

section 614.17A(2) limits the lien created by a civil judgment to ten years. 

Is a county or city subject to a wrongful execution, attachment, or 

garnishment suit if it collects after the expiration of the statute of 

limitations?

Another unanswered question is whether the collection of jail room 

and board and medical aid from a convicted inmate is subject to the Iowa 

Debt Collection Practices Act, Iowa Code sections 537.7101 to 537.7103. 

I do not know the answer to this question.

Finally, I think a question exists as to whether a judgment for jail 

room and board and medical aid against a convicted inmate is voidable. If 

the county or city obtained the judgment without notice to the inmate and 

an opportunity to be heard, does the court have personal jurisdiction over 

the inmate to enter a valid judgment?

As demonstrated by the majority opinion and this opinion, counties 

and cities can collect jail room and board and medical aid from a convicted 

inmate and avoid the reasonable-ability-to-pay requirement when a court 

assesses those items as a civil judgment. However, when a county or city 

makes that choice, it may be subject to the civil laws regarding collection 

of debts. In the end, using section 356.7 to collect jail room and board 

and medical aid from a convicted inmate may contain many more pitfalls 

than using Iowa’s restitution statutes. Only further litigation will answer 

these questions.