State of Iowa v. Larry David Baskerville

IN THE COURT OF APPEALS OF IOWA

No. 16-1675
Filed May 3, 2017

STATE OF IOWA,
Plaintiff-Appellee,

vs.

LARRY DAVID BASKERVILLE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joseph M.

Moothart, District Associate Judge.

A defendant challenges the attorney fees ordered in a written judgment

entry. APPEAL DISMISSED.

Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

Larry David Baskerville shoplifted thirty pounds of ground beef, four racks

of spare ribs, and a T-bone steak from the meat department at Hy-Vee. Having

been convicted of theft twice before, Baskerville pleaded guilty to theft in the third

degree and received a prison sentence not to exceed two years. At the

sentencing hearing, the district court informed Baskerville that his responsibility

for attorney fees would be capped at $600. But the court’s written judgment

entry ordered Baskerville to pay restitution for attorney fees in “the amount

actually submitted by counsel or $1200 whichever is less.”

On appeal, Baskerville asks us to remand for entry of a nunc pro tunc

order to reflect the oral pronouncement of a $600 cap on attorney fees. The

State agrees that when a discrepancy arises between the oral pronouncement of

sentence and the written judgment, the oral pronouncement governs. See State

v. Hess, 533 N.W.2d 525, 528 (Iowa 1995). The State also agrees, ordinarily,

when the record plainly reveals a discrepancy, the proper remedy is to remand

for entry of a nunc pro tunc order. See id. at 529. But the State contends a

remand is not necessary here because Baskerville’s challenge is moot. The

State points out defense counsel certified fees in the amount of $30—far less

than the $600 cap set at the sentencing hearing. Baskerville’s counsel did not

file a reply brief to counter the State’s mootness argument.

“[A]n appeal is deemed moot if the issue becomes nonexistent or

academic and, consequently, no longer involves a justiciable controversy.” State

v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002). Courts refrain from

reviewing moot issues. Id. Defense counsel’s certification of fees well below the
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ceiling set by the district court removes the existence of any justiciable

controversy in this case. Remanding for a nunc pro tunc order would have no

practical impact on Baskerville’s restitution bill. Accordingly, we dismiss the

appeal on mootness grounds.

APPEAL DISMISSED.