State of Iowa v. Dave A. Rutledge ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1148
Filed September 2, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVE A. RUTLEDGE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Tama County, Andrew Chappell,
Judge.
Dave Rutledge appeals the order requiring him to pay restitution.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
2
AHLERS, Judge.
On October 11, 2018, Dave Rutledge pled guilty to fraudulent practice in
the second degree resulting from his fraudulent claim of unemployment benefits.
See Iowa Code §§ 96.16(1), 714.10 (2017). On March 21, 2019, the court issued
its sentencing order, which imposed a suspended five-year term of incarceration,
three years of probation, and $14,778.65 in victim restitution. On April 10,
Rutledge filed a “Motion for Restitution Hearing” challenging the amount of
restitution. The court held a hearing on the motion on May 23. During the hearing,
an investigator for Iowa Workforce Development testified Rutledge owed
$12,851.00 in overpayments between 2012 and 2017 plus a penalty of $1927.65.1
On June 11, the court issued its restitution order, which accepted the investigator’s
testimony and supporting documentation in keeping the amount of victim restitution
at $14,778.65. The court also rejected Rutledge’s argument that part of the victim
restitution was barred by the statute of limitations. Rutledge appeals, asserting the
court erred in not applying the statute of limitations.
“We review restitution orders for correction of errors at law.” State v. Hagen,
840 N.W.2d 140, 144 (Iowa 2013). In reviewing a restitution order, “we determine
whether the court’s findings lack substantial evidentiary support, or whether the
court has not properly applied the law.” State v. Bonstetter, 637 N.W.2d 161, 165
(Iowa 2001).
As an initial matter, the State argues Rutledge cannot appeal the
determination of his restitution obligation because he did not timely appeal the
1See Iowa Code § 96.16(4)(b) (assessing “a penalty equal to fifteen percent of the
amount of a fraudulent overpayment” of unemployment benefits).
3
March 21, 2019 sentencing order. The Iowa Code allows courts to issue
supplemental restitution orders and defendants to challenge restitution at any time
during probation, parole, or incarceration. Iowa Code §§ 910.3, .7. The State
concedes Iowa courts have heard challenges to supplemental restitution orders on
direct appeal. See, e.g., State v. Jose, 636 N.W.2d 38, 44–45 (Iowa 2001); State
v. Janz, 358 N.W.2d 547, 549 (Iowa 1984); see also State v. Blank, 570 N.W.2d
924, 926 (Iowa 1997) (“To be considered an extension of the criminal proceedings,
however, the defendant’s petition under section 910.7 must be filed within thirty
days from the entry of the challenged order.”). However, the State asserts that
under Sahinovic v. State, 940 N.W.2d 357, 359–61 (Iowa 2020), the time to appeal
a supplemental sentencing order relates back to the entry of the original judgment.
Sahinovic considered the effect of resentencing on an application for
postconviction relief where the relevant statute of limitations requires the
application “be filed ‘within three years from the date the conviction . . . is final.’”
940 N.W.2d at 359 (quoting Iowa Code § 822.3). The court held that, for purposes
of chapter 822, a conviction becomes final when judgment is entered on it, and
resentencing does not create a new three-year period to seek postconviction relief.
Id. The direct appeal of a restitution order is a distinct procedure that does not
depend on when the conviction was “final” and is unaffected by Sahinovic.2 See
2 We also note that our supreme court recently held a defendant may not be
entitled to appeal an interim restitution order entered as part of the initial
sentencing. See State v. Davis, 944 N.W.2d 641, 646 (Iowa 2020) (“[T]here is no
right of direct appeal from interim restitution orders preceding the court’s final order
of restitution . . . .”). Based on Davis, we conclude Rutledge was not obligated to
appeal from the restitution amount set in the sentencing order, and he may not
have even been permitted to do so. See id.
4

id. We follow our supreme court precedent allowing direct appeal of a restitution
order as part of an extension of the criminal proceedings.3 See State v. Hastings,
466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa
Supreme Court precedent.”).
Turning to the merits of Rutledge’s claim, Rutledge argues restitution is
limited to the amount the State would be able to collect in a civil action and the
applicable statute of limitations in a civil action only permits recovery within five
years of filing charges. See Iowa Code § 614.1(4) (providing actions for fraud must
be filed within five years). We agree section 910.1(3) and (4) limits the “pecuniary
damages” that can be assessed as restitution to amounts a victim “could recover
against the offender in a civil action.” However, we cannot find such assessment
is limited by the procedures for recovery in a civil action, as nothing in the statute
suggests that the amount assessed as restitution in a criminal case is to be limited
by procedures as if it were a civil action. See Kruidenier v. McCulloch, 158 N.W.2d
170, 172 (Iowa 1968) (noting legislative omissions are left to the legislature for
correction). There are a number of procedural requirements for asserting a
statute-of-limitations defense in a civil case for which there would be no clear way
to follow within the framework of a criminal proceeding. See, e.g., Iowa R. Civ. P.
1.419 (requiring affirmative defenses to be “specially pleaded”); Earl v. Clark, 219
N.W.2d 487, 491 (Iowa 1974) (holding the statute of limitations is an affirmative
defense and the burden of proving the defense is on the pleader). Additionally,
3 Because Rutledge properly filed a direct appeal of the restitution order, we reject
the State’s other procedural arguments that Rutledge filed an improper challenge
to an illegal sentence and failed to file a motion in arrest of judgement to challenge
his plea.
5
our supreme court has held “[a]ny damages that are causally related to the criminal
activities may be included in the restitution order.” Bonstetter, 637 N.W.2d at 165.
In this case, we need not decide the issue whether the civil statute of
limitations applies to criminal restitution in general. This is because, even if we
assumed for the sake of discussion that it did, Rutledge cannot rely on the limitation
period set forth in section 614.1(4) as a defense against the State. “[I]n Iowa, it is
well recognized that a statute of limitations does not run against the [S]tate unless
specifically provided by statute.” Fennelly v. A-1 Mach & Tool Co., 728 N.W.2d
163, 168 (Iowa 2006). We are not aware of any statute specifically providing for
the statute of limitations to apply to the State in this context, and Rutledge cites
none. Therefore, applying the rule set forth in Fennelly, Rutledge cannot assert a
civil statute of limitations defense successfully against the State.
Any unemployment benefits Rutledge fraudulently received have been
established to be causally related to his fraudulent-practice conviction, and the
investigator’s testimony and supporting documentation is substantial evidence to
support the $14,778.65 in victim restitution. Therefore, the court did not err in
rejecting Rutledge’s statute-of-limitations argument, and we affirm the restitution
order.
AFFIRMED.