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IN THE COURT OF APPEALS OF IOWA No. 0-750 / 10-0577 Filed December 8, 2010 STATE OF IOWA, Plaintiff-Appellee, vs. DARIUS DARNELL LANG, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Jon Fister, Judge.

Lang appeals the court's order increasing the amount of restitution after he had discharged his sentence. REVERSED.

Mark C. Smith, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, and Thomas J. Ferguson, County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Eisenhauer and Danilson, JJ. Potterfield, J., and Tabor, J., take no part.

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EISENHAUER, J. Darius Lang appeals the court's order increasing the amount of restitution after he had discharged his sentence. We reverse. I. Background Facts and Proceedings. The State filed a trial information charging Lang with burglary and sexual assault for acts committed on April 23, 1992. The court appointed an attorney to defend Lang. After Lang pled guilty in March 1993, he was sentenced to

consecutive, indeterminate terms of incarceration, each term not to exceed ten years. The sentencing order also stated: "Judgment is rendered against the defendant . . . for the costs of prosecution taxed at $125.81, est[timated] with execution to issue accordingly." On May 18, 1993, counsel previously appointed to represent witness Littleton during discovery/contempt filed a claim requesting the State pay $180.15 in attorney fees. The court granted counsel's request on June 3, 1993. On May 26, 1993, Lang's defense counsel filed a claim requesting the State pay $5570.36 in attorney fees. On June 21, 1993, the district court ordered the State to pay $3000, noting "statutory limit." On July 18, 1993, the court entered a supplemental order for restitution, stating "all amounts were not included in original order." The court ordered Lang to pay: $125.31 estimated court costs, $1142.35 additional court costs, and $180.15 attorney fees ($1447.81 total). The $3000 court-appointed counsel

attorney fee was not included in the supplemental restitution order.

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On August 23, 1993, the warden filed a restitution plan with the clerk of court in which Lang would pay $1447.81 by paying twenty percent of "all credits" to his institutional account. No action was taken to modify Lang's restitution plan to include the $3000 attorney fee under Iowa Code section 910.3 (Supp. 1991), which provides: Determination of amount of restitution . . . . If the full amount of restitution cannot be determined at the time of sentencing, the court shall issue a temporary order . . . . 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. Alternatively, the State did not file a motion seeking to modify Lang's restitution plan to include the $3000 attorney fee under Iowa Code section 910.7 (1993), which provides: At any time during the period of . . . incarceration, the . . . office or individual who prepared the offender's restitution plan may petition the court on any matter related to the plan of restitution . . . . The court, at any time prior to the expiration of the offender's sentence, may modify the plan of restitution. On July 29, 1993, Lang's defense counsel filed a motion for reconsideration of the court's order requiring the State to only pay $3000 of its $5570.36 attorney fee claim. After hearing, on September 23, 1993, the court ordered the State to pay "the additional sum of $2570.36." The record does not contain a modified restitution plan requiring Lang to pay an additional $5570.36 in restitution. Lang discharged his sentence and was released from incarceration on March 19, 2002.

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On October 14, 2009, the court filed a rule to show cause for contempt on nonpayment of restitution stating: (1) the county attorney requests a hearing due to $6603.58 in unpaid fine and court costs "for this case which was completed in 1993"; and (2) "no payments have been made since 1999." A contempt hearing was held on March 10, 2010. The hearing was not reported. On March 11, 2010, the court ruled Lang could not be held in contempt "until his sentencing order is amended and supplemental restitution orders are entered." Next, the court amended Lang's sentencing order to include "restitution for costs accrued since [the July 19, 1993 supplemental restitution order] and for attorney fees and expenses of $5,570.36 approved June 21, 1993, and September 23, 1993." The court stated: The defendant was sentenced on March 17, 1993, and judgment was entered for costs but the sentencing court failed to comply with Iowa Code

Download STATE OF IOWA, Plaintiff-Appellee, vs. DARIUS DARNELL LANG, Defendant-Appellant.

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