Restitution

Restitution in Des Moines

Chapter 910 of the Iowa Code governs restitution payments after you've been convicted of an offense.

If you've been ordered to pay an outlandish and unfair amount of restitution, a Des Moines restitution attorney may be able to help you at a hearing to reduce your restitution obligation to a fair amount.

New Changes to Iowa Restitution Requirements

Chapter 910, governing restitution, has been updated. Text below which has been stricken through is not current.

What is Restitution

Restitution includes payment of damages to people and entities that were injured by your offense. Restitution may include:

  • Pecuniary damages to victims
  • Category "A" Restitution
    • Payment of fines, penalties, and surcharges
  • Category "B" Restitution
    • Restitution to a local anti-crime organization
    • Restitution to public agencies for the cost of emergency response to drunk drivers
    • Court costs
    • Correctional fees
    • Court-ordered attorney fees
    • Restitution to the medical assistance program
  • Restitution for causing death

Pecuniary Damages

"Pecuniary damages" means all damages that aren't paid by an insurer. Everything a victim could recover from an offender in a civil action arising out of the same event is pecuniary damages, with a few exceptions.

Punitive damages and damages for pain, suffering, mental anguish, and loss of consortium are damages that a victim could possibly recover in a civil action. Punitive damages and damages for pain, suffering, mental anguish, and loss of consortium are not considered pecuniary damages for purposes of restitution, though.

Pecuniary damages do include damages for wrongful death and damages incurred for psychiatric or psychological services or counseling.

Pecuniary damages also include the cost of any counseling that the victim needs as a direct result of the criminal activity.

Category "A" Restitution

Category "A" restitution means fines, penalties, and surcharges.

Fines and Surcharges

Any criminal fine imposed has an additional 15% surcharge. (Change effective for offenses alleged to have occurred on July 15, 2020 or later) That means a $1000 fine would cost $1150 -- plus any other surcharges that apply to the offense.

Category "B" Restitution

Category "B" restitution is court costs, court-appointed attorney fees or public defender fees, payment to anticrime organizations that helped law enforcement in your case, paying crime victim compensation program reimbursement, OWI restitution for emergency response, and payment to the medical assistance program for expenses they incur for any victims of your crime.

Court Costs

For filing and docketing a criminal case, court costs are usually $100 for the county or city that had the duty to prosecute the case. If you're assigned to pay court costs, you'll be paying this $100.

  • If the case was a simple misdemeanor, court costs are $60 instead of $100.
  • If it was a scheduled violation, court costs are $55.
  • If the case was a parking violation, it's $8.
  • If you appeal a simple misdemeanor to district court, it's $75.

If you file a motion to show cause in a criminal case, the fee is the same as the fee for filing the underlying case (usually $100, but $60 if it's a simple misdemeanor.) Same for probation revocation issues.

Iowa Code 602.8106.

The court can order you to perform a number of hours of community service you can't reasonably pay all or part of the court costs, correctional fees, or court-appointed attorney fees.

Court-Ordered Attorney Fees

At the time attorney fees are ordered, you still have a right to counsel. The court should make a finding on the record that you are reasonably able to pay attorney fees if you had a public defender or other court-appointed counsel.

The court can order you to perform a number of hours of community service you can't reasonably pay all or part of the court costs, correctional fees, or court-appointed attorney fees.

Restitution for Anti-Crime Organizations

Restitution can also involve a requirement to contribute funds to a local anticrime organization that helped the police in your case.

DUI Restitution for Emergency Response

In OWI (DUI/drunk driving) cases, you can be directed to pay restitution any public agency for the costs of emergency response if you're convicted, plead guilty, or accept a deferred judgment.

Emergency responses that you can be directed to pay restitution for include fire fighting, police, ambulance, medical, and other emergency services.

This type of restitution can't exceed $500 for each agency that you're directed to pay restitution to.

Iowa Code 321J.2(13)(b).

Restitution for Death

Restitution extraneous to the "Category 'A'" and "Category 'B'" determinations are mandatory in some circumstances.

If you did a felony that caused someone's death, you will have to pay at least $150,000 (in addition to the other restitution) to the victim's estate or to their heirs. This restitution can't be discharged in any proceeding under the federal Bankruptcy Act.

Having to make this payment doesn't protect you from a victim's estate or heirs suing you for damages. This payment isn't reduced by any third-party payments, including insurance payments. You might additionally be ordered to pay funeral expenses.

Iowa Code 910.3B.

Who Has to Pay Restitution?

Everyone who is convicted or pleads guilty to an offense or who accepts a deferred judgment will owe Category A restitution regardless of their financial situation.

Category B restitution is subject to an "ability to pay analysis." §910.2(1).

Defendants are now presumed able to pay Category B restitution. This is a new change -- before, the Court would make a formal finding at sentencing regarding your ability to pay. Now the Court will assume that you can pay. If you believe you can't pay all of the Category B restitution, you have to request that the judge find you not able to pay or that they find you only partially able to pay. You only have 30 days from when a restitution order is entered to make that request.

Once you have requested a finding of less-than-full ability to pay Category B restitution, the Court will set a hearing. At the hearing, you will have to prove by a preponderance of the evidence that you are unable to pay the full amount of Category B restitution. Your testimony is evidence, but you must also submit a financial affidavit.

The judge and the prosecutor can cross-examine you about your ability to pay.

The Court is not required to state its reasons for its finding. There may be a constitutional issue in this that may be worth discussing or exploring in certain cases.

If the Court finds that you are not fully able to pay Category B restitution, they may order you to perform community service. The Court will set a number of hours and will assign you to a public agency or to a non-profit organization. You can no longer choose what entity to do community service hours for.

Restitution Orders

The court will prioritize some restitution payments over others. You first have to pay restitution to the victim. After that, you will have to pay fines, penalties, and surcharges. After that is Crime victim compensation program reimbursement, restitution to public agencies, court costs including correctional fees, court-appointed attorney or public defender fees, contribution to a local anticrime organization, and, finally, any restitution due to the medical assistance program.

A criminal restitution order entered by the sentencing court may reflect terms of a plea agreement made with the county attorney’s office.

When a judge is evaluating restitution requirements for your case, they may consider things such as victims’ rights.  A victim advocate may encourage a victim witness to submit a victim impact statement.  Victims of crime may have their medical bills, insurance deductibles, and compensation for other expenses provided for in a criminal restitution order. 

The victim impact of violent crime, in particular, may result in a court order that requires payment to a victim compensation program.

How Much Restitution Do You Have to Pay

How much restitution is paid and how it is paid will be outlined in your plan of restitution established by the court.

The county attorney prepares a statement of pecuniary damages to victims, awards to the crime victim compensation program, and expenses incurred by public agencies for emergency responses in DUI cases.

The clerk of court prepares a statement of court-appointed attorney fees, public defender expenses, court costs, and correctional fees.

The statements by the county attorney and clerk of court are either given to a presentence investigator (who will include them in their presentence investigation report) or submitted to the court at the time of sentencing. If the statements of damages aren't ready at the time of sentencing, the county attorney will provide their statement to the clerk of court within 30 days after sentencing.

If a defendant believes that nobody suffered pecuniary damages, they provide a statement to that effect to the court. Similarly, the defendant can provide the Court with a statement if they have any mental or physical impairments that would limit their ability to perform public service. The Court can set a hearing on the issue or can order a mental or physical examination.

The Court will order the amount of restitution (including the amount of public service or community service hours to be performed as restitution.) This order that sets the amount of restitution, along with any further supplemental orders the court enters, are "the plan of restitution."

How do you pay restitution?

Unless your restitution plan says otherwise, you will make monthly payments to the clerk of court in the county in which you were convicted. The civil clerk will keep track of your payments.

What if you can't afford restitution?

For most restitution owed, other than restitution to the victim, if you aren't reasonably able to pay, the court may require you to perform a needed public service for a governmental agency or for a private nonprofit agency which provides a service to the youth, elderly, or poor of the community instead.

Restitution as a Condition of Probation

If the court orders both restitution and probation, then paying restitution is a condition of your probation. If you don't comply with the restitution plan, payment plan, or community service requirements, that's a probation violation and constitutes contempt of court. Your probation could be extended or revoked if you don't pay.

If there's a significant change in your income or circumstances, your probation officer will submit a modified restitution payment plan to the court based on your income, mental and physical health, age, education, employment, and family circumstances.

While on probation or otherwise still performing your criminal justice sentence, the adult probation department can request a court ordered modification.

Probation revocation can result in prison time or imposition of any suspended sentence time you received at sentencing. You don't want probation to be revoked.

Restitution Hearings

During probation, parole, or incarceration, you (or whoever prepared your restitution plan) can petition the court on any matter related to the restitution plan or payment plan. The court will grant a hearing if your petition makes it appear that a hearing is warranted.

After a petition is filed, the court may modify the restitution plan, the payment plan, or both and can extend the period of time for the completion of restitution.

When a petition relating to a plan of restitution is filed, you will be notified -- and so will the county attorney, the department of corrections (if you're currently in a correctional institution,) whoever prepared your restitution plan, and your victim. This notification will be provided before any restitution hearing.

Restitution Enforcement

A restitution order is a judgment and lien against all of your property for the amount you owe. The order can be recorded in any office for filing liens against real or personal property.

The State can enforce a restitution judgment. So can a victim who's entitled to receive restitution under the order, a deceased victim's estate, or any other beneficiary.

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