State of Iowa v. Lynne Ann Gillen

IN THE COURT OF APPEALS OF IOWA

No. 18-1299
Filed December 18, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

LYNNE ANN GILLEN,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Heather L. Lauber,

Judge.

Lynne Gillen appeals the restitution ordered following her guilty plea to

operating a motor vehicle while intoxicated, first offense. SENTENCE AFFIRMED

IN PART, VACATED IN PART, AND REMANDED.

Ronald W. Kepford of Kepford Law Firm, Winterset, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
2

VAITHESWARAN, Presiding Judge.

Lynne Ann Gillen pled guilty to operating a motor vehicle while intoxicated,

first offense. At the sentencing hearing, the district court stated:

You will . . . be required to pay back any restitution that might be
owing in that case. I do not have a specific amount available at this
time. But if the State would ask for a supplemental restitution order,
that would be entered. You would be provided with a copy, and you
would be able to request a hearing if you do dispute the amount of
restitution that is ordered.

The court granted Gillen’s request to not impose an attorney-fee restitution

obligation but stated, “I do find that you would have the reasonable ability to repay

any victim restitution that is owing in this case.” The court imposed a one-year jail

sentence, suspended all but sixty-five days of the term, and among other things,

ordered Gillen “to immediately pay any and all restitution, fines, surcharges, and

court costs.”

On appeal, Gillen argues “the district court erred in ordering [her] to pay

restitution at [the] time of sentencing.” She cites State v. Albright, 925 N.W.2d 144,

159 (Iowa 2019).

In Albright, the court stated “[a] plan of restitution is not complete until the

court issues the final restitution order.” 925 N.W.2d at 160. The court continued,

“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.” Id.

at 162. The court “vacate[d] the restitution part of the sentencing order and

remand[ed] the case to the district court to order restitution in a manner consistent

with this opinion.” Id. at 162–63.
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Applying Albright, we vacate the restitution part of the sentencing order and

remand the case to the district court.

SENTENCE AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.