State of Iowa v. Mark Reed Britt

IN THE COURT OF APPEALS OF IOWA

No. 16-0388
Filed May 3, 2017

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MARK REED BRITT,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Richard H.

Davidson, Judge.

Defendant appeals from a restitution order. APPEAL DISMISSED.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.

Considered by Doyle, P.J., Tabor, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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BLANE, Senior Judge.

Mark Britt appeals from a district court order compelling him to pay

restitution following his conviction for exercising control over a stolen vehicle.

Because we conclude his appeal was untimely, we dismiss the appeal for lack of

jurisdiction.

On December 9, 2015, the district court issued its final ruling on

restitution, ordering Britt to pay $11,264.15. Britt filed a motion for expanded

findings and relief, pursuant to Iowa Rule of Civil Procedure 1.904(2), on

December 16. The court ruled on that motion on February 29, 2016. Britt filed a

notice of appeal on March 1.

It has long been the rule that only a “proper” rule 1.904(2) motion tolls the

deadline for an appeal. See Hedlund v. State, 875 N.W.2d 720, 725 (Iowa

2016).

The propriety of a rule 1.904(2) motion depends on the
nature of the request it makes of the district court. Rule 1.904(2)
generally gives each party an opportunity to request a change or
modification to each adverse judgment entered against it by the
district court before deciding whether to incur the time and expense
of an appeal. A proper rule 1.904(2) motion does not merely seek
reconsideration of an adverse district court judgment. Nor does it
merely seek to rehash legal issues adversely decided. A rule
1.904(2) motion is ordinarily improper if it seeks to enlarge or
amend a district court ruling on a question of law involving no
underlying issues of fact. Likewise, a rule 1.904(2) motion that
asks the district court to amend or enlarge its prior ruling based
solely on new evidence is generally improper. Ordinarily, a proper
rule 1.904(2) motion asks the district court to amend or enlarge
either a ruling on a factual issue or a ruling on a legal issue raised
in the context of an underlying factual issue based on the evidence
in the record.
Nonetheless, when a party has presented an issue, claim, or
legal theory and the district court has failed to rule on it, a rule
1.904(2) motion is [the] proper means by which to preserve error
and request a ruling from the district court. When a rule 1.904(2)
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motion requests a ruling on an issue properly presented to but not
decided by the district court, the motion is proper even if the issue
is a purely legal one.

Homan v. Branstad, 887 N.W.2d 153, 161 (Iowa 2016) (citations omitted).

Britt raised several issues in his 1.904(2) motion. He used identical

language to introduce most of his claims: “From the evidence and/or lack of

evidence as a whole, the court has failed to exercise discretion or abused its

discretion or has erred in presumptively finding or concluding the State satisfied

its burden of proving by a preponderance of evidence” a relevant fact. He also

argued the court abused its discretion by imposing a restitution amount greater

than the amount requested by the State. These claims do nothing more than

rehash previous arguments or raise a new argument for the first time. As a

result, the rule 1.904(2) motion was an improper one and did not extend the time

for appeal.1 See id. Britt’s deadline to appeal, absent a proper rule 1.904(2)

motion, was thirty days after the district court’s December 9 ruling. See Iowa R.

App. P. 6.101(1)(b). He did not file his notice of appeal until March 1. We

therefore lack jurisdiction to hear this appeal and must dismiss it. See Hedlund,

875 N.W.2d at 724–27.

APPEAL DISMISSED.

1
In Hedlund, our supreme court noted “rule 1.904(2) has been subject to criticism” and
that it had “initiated an effort to explore its possible amendment.” Hedlund, 875 N.W.2d
at 727. That amendment has come to fruition, effective March 1, 2017. See Iowa Sup.
Ct., In re Adopting Amendments to Iowa R. Civ. P. 1.904 & Iowa R. App. P. 6.10 (Nov.
18, 2016), http://bit.ly/2pAkZyE. The amendment does away with the propriety
requirement. It is our general rule to interpret changes to court rules prospectively “if
there is no additional enactment that expressly makes the law or rule retrospective.”
Iowa Sup. Ct. Att’y Disciplinary Bd. v. K.G.T., 722 N.W.2d 787, 790 (Iowa 2006). No
additional enactment is present here. Nor does Britt argue for retrospective application
of the rule. We will not make his argument for him. See United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in
briefs.”). We therefore interpret the rule change to apply prospectively.