IN THE COURT OF APPEALS OF IOWA

No. 18-0690

Filed April 17, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

LARRY GROSS Jr.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, 

Judge.

Defendant appeals the district court decision requiring him to pay a room 

and board reimbursement fee for time he spent in jail. 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, for appellee.

Considered by Potterfield, P.J., and Tabor and Bower, JJ.
2

BOWER, Judge.

Larry Gross appeals the district court decision requiring him to pay a room 

and board reimbursement fee for time spent in jail. We conclude the district court 

did not err in approving the Polk County Sheriff’s application for reimbursement 

without making a finding Gross had a reasonable ability to pay. We affirm the 

decision of the district court.

Gross was charged with first-degree arson after he started a fire in his 

home. He entered into a plea agreement and pled guilty to second-degree arson, 

in violation of Iowa Code section 712.3 (2017).1 Gross was sentenced to a term 

of imprisonment not to exceed ten years. The sentencing order, filed on January 5, 

2018, provided Gross was to pay restitution in an amount to be determined.

On January 16, the Polk County Sheriff’s Office filed a statement showing 

Gross was confined in the Polk County jail for 197 days. On April 6, the Polk 

County Sheriff’s Office filed a claim for reimbursement, seeking $11,415.00 for 

room and board during the time Gross was in jail. The claim stated, “This Claim is 

made pursuant to Iowa Code Section 356.7 for the reimbursement of 

Administrative Costs, Room and Board, and Medical Aid Costs.”

On April 9, 2018, the district court entered an order stating, the “Sheriff’s 

Claim for Reimbursement is approved by the Court pursuant to Iowa Code 

[section] 356.7 in an amount of $11,415.00.” The order advised Gross, “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 

 

1

 Gross’s conviction was affirmed on direct appeal. State v. Gross, No. 18-0048, 2018 

WL 6120052, at *4 (Iowa Ct. App. Nov. 21, 2018).
3

days after the filing of the court’s order (See Iowa Rule of Civil Procedure 1.1007).” 

Gross did not file an application with the district court to challenge the court’s order, 

but filed a notice of appeal on April 18, 2018, within the fifteen-day period.

Gross claims the district court improperly required him to pay restitution of 

$11,415.00, without making a finding as to his reasonable ability to pay, contrary 

to constitutional requirements. See State v. Kurtz, 878 N.W.2d 469, 472 (Iowa Ct. 

App. 2016) (“A defendant’s reasonable ability to pay is a constitutional prerequisite 

for a criminal restitution order such as that provided by Iowa Code chapter 910.”). 

The State responds by claiming the Polk County Sheriff was seeking to enforce 

the claim as a civil judgment under chapter 626, rather than through a restitution 

order.

“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.” State v. 

Abrahamson, 696 N.W.2d 589, 591 (Iowa 2005). In the original claim, “[i]f 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 be included within the order for payment of 

restitution by the person” must be included in the reimbursement claim filed with 

the clerk of district court. Iowa Code § 356.7(2)(i).

Neither the claim by the sheriff nor the ruling by the district court mentions 

restitution. Based on section 356.7(2)(i), we find the sheriff was seeking to enforce 
4

its claim for reimbursement under chapter 626.2 Where a sheriff proceeds under 

chapter 626, the court has “inherent discretionary authority to review any 

order . . . for substantive, as well as procedural, irregularity, and to set the matter 

for hearing where necessary.” Abrahamson, 696 N.W.2d at 592. The court should

“resolve the merits of the claim.” Id. at 593.

On appeal, Gross asks us to reverse the district court’s order and remand 

for a hearing on his reasonable ability to pay. As noted, this case involves a civil 

judgment under chapter 626, not a restitution order under chapter 910. For a civil 

judgment, Gross is “afforded the same protections as other civil judgment debtors.” 

See State v. Dudley, 766 N.W.2d 606, 623 (Iowa 2009). This does not include a 

determination the defendant is reasonably able to pay the amount due, as in 

restitution proceedings. See Iowa Code § 910.2; State v. Jackson, 601 N.W.2d 

354, 357 (Iowa 1999) (noting until a restitution plan is filed “the court is not required 

to give consideration to the defendant’s ability to pay”). On the other hand, a 

restitution proceeding “does not trigger the protections of our statutes governing 

execution on judgments.” Dudley, 766 N.W.2d at 623. 

We conclude the district court did not err in approving the reimbursement 

application without making a finding Gross had a reasonable ability to pay. We 

affirm the decision of the district court. 

AFFIRMED.

 

2

 We note in State v. Iowa District Court, No. 17-0616, 2018 WL 739323, at *4 (Iowa Ct. 

App. Feb. 7, 2018), we stated “it does not appear the Polk County sheriff actually chose 

to execute its room-and-board judgment using chapter 626.” The holding in this case is 

based on whether the judgment for room and board was a “court debt,” which could be 

satisfied by community service. Iowa Dist. Ct., 2018 WL 739323, at *5.