IN THE COURT OF APPEALS OF IOWA

No. 18-0673

Filed February 20, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DEAN WILLIAM DEMPSTER, III,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Delaware County, Monica Zrinyi

Wittig, Judge.

Dean William Dempster III appeals the district court’s modification of his

victim restitution order. REVERSED.

James G. Thomas and Jeffrey L. Clark of Thomas & Clark, LLC, Anamosa, 

for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

We are asked to determine the effect of a prior court of appeals opinion on 

a criminal restitution order. 

I. Background Proceedings

Dean William Dempster III pled guilty to vehicular homicide by reckless 

driving. See Iowa Code § 707.6A(2)(a) (2013). As required by law, the district 

court ordered victim restitution of $150,000. See id. § 910.3B(1). The court 

approved a restitution plan of payment.

Shortly thereafter, Dempster notified the district court of two $100,000 

insurance payments to the parents of the victim—one by his insurance company 

and the other by the company that insured the owner of the vehicle. In exchange 

for the payments, the parents released Dempster from all liability. Dempster 

requested “that his probation agreement/payment plan be amended to reflect that 

victim restitution has been satisfied.” On July 12, 2016, following a hearing, the 

court concluded:

Iowa Code Section 910.8 provides in relevant part “that any 

restitution payment by the offender to a victim shall be set off against 

any judgment in favor of the victim in a civil action arising out of the 

same facts or event.” See also State vs. Driscoll, 839 N.W.2d 188, 

191 (Iowa 2013). Based thereon, in the Court’s reading of the 

Driscoll case, the Court hereby finds that offset is proper. As Driscoll

indicates, the purpose of the statute is to coordinate civil recoveries 

with criminal restitution to avoid double recovery. Id. (citing State v.

Klawonn, 688 N.W.2d 271 (Iowa 2004)).

The court ordered an offset of “the civil payment made to the victim’s family” and

application of “any payments made directly by the Defendant to any further court 

costs or obligations he owes.” The court further stated, “If the payment made by 

the civil settlement satisfies the $150,000.00 criminal restitution payment in its 
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entirety, the Court deems that aspect of the Defendant’s disposition order to be 

satisfied in full.” The State did not appeal the July 12, 2016 order.

More than a month after the order was filed, the parents of the victim wrote 

a letter to the district court requesting reconsideration of the order. They asserted 

the court should not have offset the $100,000 payment they received from the 

vehicle owner’s insurer against Dempster’s $150,000 restitution obligation. In 

response to the letter, the court “clarifie[d]” that its prior order “relate[d] solely to 

any insurance proceeds paid on behalf of . . . Dempster from his personal liability 

coverage.”

Dempster moved to set aside the clarifying order. The district court 

essentially reaffirmed that order. 

On appeal, this court reversed and vacated the clarifying order. See State 

v. Dempster, No. 16-1756, 2017 WL 3525277, at *2 (Iowa Ct. App. Aug. 16, 2017). 

We reasoned “the parents did not have standing to challenge the restitution order.” 

Id. 

After the appeal was finalized, the State filed an application to amend the 

plan of restitution. The State alleged it was “a recognized party” and was entitled 

to “a further supplemental order . . . that only offsets Defendant’s $150,000 

obligation by the $100,000 paid by his insurance company and with no credit for 

any payments paid by any third party insurers.” Dempster countered, “Any 

‘erroneous’ application of the facts or the law, if such existed, should have been 

raised by the State through filing an appeal” of the July 12, 2016 order and “[r]es 

judicata” warranted dismissal of the application. At a hearing on the application, 

Dempster elaborated that the district court’s “clarifiying” order declining to offset 
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the second $100,000 payment was “vacated” by the court of appeals and “it 

stands, as far as the Defendant should be concerned, as the law of the case.” 

The district court rejected Dempster’s procedural challenges to the State’s 

application after noting that a restitution hearing could be scheduled “at any time 

during the term of incarceration.” The court concluded the $150,000 restitution 

obligation was mandatory; Dempster was “not entitled to any benefit from an 

insurance agency beyond what he may have paid for as his own personal 

coverage”; and an offset of the second insurance payment was inappropriate. 

On appeal, Dempster challenges the district court’s jurisdiction to revisit the 

clarifying order. He also argues the district court “failed to appy the law of the 

case” doctrine. In that context, he contends the State failed to appeal the July 12, 

2016 order granting an offset of both $100,000 payments and furnished no new 

information warranting reconsideration of the order. Finally, he asserts Iowa 

precedent mandates an offset of both insurance payments.

II. Analysis

We begin with the jurisdictional argument. We conclude the district court 

possessed subject matter jurisdiction over restitution matters. See State v.

Poyner, No. 08-1863, 2009 WL 3775118, at *2 (Iowa Ct. App. Nov. 2009) (citing 

Iowa Code ch. 910 (2007)). 

We turn to the law-of-the-case doctrine. “The law-of-the-case doctrine 

‘represents the practice of courts to refuse to reconsider what has once been 

decided.’” Brewer-Strong v. HNI Corp., 913 N.W.2d 235, 245–46 (Iowa 2018)

(citation omitted). “Under this doctrine, a reviewing court’s legal principles and 

views expressed become binding throughout the case as it progresses, regardless 
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of their accuracy.” Id. at 246. “Although ‘[t]he doctrine generally applies only to 

issues raised and passed on in a prior appeal,’ it also ‘extends to matters 

necessarily involved in the determination of a question settled in a prior appeal for 

purposes of subsequent appeals.’” Id. (citation omitted). “Nevertheless, the law 

of the case doctrine is inapplicable ‘if the facts before the court upon the second 

trial are materially different from those appearing upon the first,’ or the party raises 

‘issues that could have been, but were not, raised in the first appeal.’” Id. (citation 

omitted).

The only issue decided by this court in Dempster’s prior appeal was whether 

the victim’s parents had standing to challenge the clarifying order. We stated they 

did not. Dempster, 2017 WL 3525277, at *2. Because we did not address the 

merits of the clarifying order, the holding of our opinion did not foreclose the State’s 

subsequent application. But, as noted, the law-of-the-case doctrine also covers 

matters necessarily involved in the determination of our appeal. Id. One of the 

matters necessarily involved in the determination of the appeal was the July 12, 

2016 order. Our prior opinion referred to the order and stated, “No party appealed 

this order.” Id. at *1. Although we did not elaborate on the effect of the State’s 

failure to appeal that order, the effect was obvious: the State was foreclosed from 

collaterally attacking the order. See Schott v. Schott, 744 N.W.2d 85, 88 (Iowa 

2008) (“We have repeatedly said a final judgment is conclusive on collateral attack, 

even if the judgment was erroneous, unless the court that entered the judgment 

lacked jurisdiction over the person or the subject matter.”); Sanford v. Manternach,

601 N.W.2d 360, 363–64 (Iowa 1999) (“[T]he district court did enter a ruling and 

the State did not appeal that ruling. Thus, the defendants’ argument in this case 
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is actually a collateral attack on that prior judgment . . . . [A] judgment is not subject 

to collateral attack except on jurisdictional grounds.”); Gail v. W. Convenience 

Stores, 434 N.W.2d 862, 863 (Iowa 1989) (“The motion for entry of satisfaction of 

judgment here was clearly a collateral proceeding. Its purpose was to avoid paying 

the interest ordered in the previous ruling. The Gails raised this issue in the 

previous proceeding. The trial court ordered Western to pay prejudgment interest 

on the amounts credited from the date of filing until the date they were paid. The 

order was clear in its award of interest. Because Western did not challenge the 

interest award on appeal the order must be allowed to stand.”); Heishman v.

Heishman, 367 N.W.2d 308, 309 (Iowa Ct. App. 1985) (“It is well-established that 

a decree or judgment generally cannot be attacked collaterally.”).

The State attempts to circumvent this principle with an argument that the 

July 12, 2016 order was not final. The State points to Iowa Code section 910.3, 

which authorizes the district court to enter “further supplemental orders if 

necessary.” But that language must be read in context. Section 910.3 states in 

full:

At the time of sentencing or at a later date to be determined by 

the court, the court shall set out the amount of restitution including the 

amount of public service to be performed as restitution and the 

persons to whom restitution must be paid. If 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. The court shall enter further 

supplemental orders, if necessary. These court orders shall be 

known as the plan of restitution.

The language authorizing “further supplemental orders” relates to supplementation 

of the “amount” of restitution, in the event the amount cannot immediately be 
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determined. In this case, the amount of restitution was undisputed. The only

question was whether Dempster could credit both insurance payments against the 

amount. The district court conclusively decided the issue in the July 12, 2016 

order. If the State wished to challenge the factual or legal basis for the order, it 

needed to file an appeal. It did not. The State’s application to amend the plan of 

restitution was an unabashed attempt to revisit the unappealed July 12, 2016 

order. It can only be construed as a belated and impermissible collateral attack of 

a final order. Because the application was impermissible, the order granting the 

application also was impermissible. 

A recent legislative change does not alter our opinion.1 The State concedes 

the amendment was enacted after the July 12, 2016 order was filed.

We reverse the order granting the State’s application to amend the July 12, 

2016 order. The effect of our opinion in this appeal, together with our opinion in 

the prior appeal, is to render the July 12, 2016 order the final pronouncement on 

the offset of payments against Dempster’s restitution obligation. The July 12, 2016 

order effectively eliminates that obligation. 

REVERSED.

 

1 The legislature recently amended section 910.3B to add subsection 4: “An award under 

this section made to the victim’s estate or heirs at law shall not be reduced by any thirdparty payment, including any insurance payment, unless the offender is a named or 

covered insured.” Iowa Code § 910.3B(4) (2018).