Opinion
No. 6-021 / 05-0691
Filed March 15, 2006
Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.
Dewayne Rowley appeals the district court's denial of his petition for a restitution hearing. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Dewayne Rowley appeals the district court's denial of his petition for a restitution hearing. Rowley argues the district court erred when it failed to review his constitutional claims. We affirm.
I. Background Facts and Proceedings
On August 14, 2003, Rowley pleaded guilty to both conspiracy to manufacture methamphetamine and third-degree burglary. He was sentenced to a term not to exceed twenty-five years for the drug charge and a term not to exceed five years for the burglary charge. The sentences were ordered to run concurrently.
On August 19, 2003, the Polk County Sheriff filed a room and board reimbursement claim for Rowley's ninety-nine days in jail. The district court entered a supplemental order for restitution, including the room, board, and court costs, on October 21, 2003.
On January 18, 2005, Rowley filed a petition pursuant to Iowa Code chapter 910 (2003) for a hearing on his restitution. For grounds warranting modification, he cited the fact his restitution included charges for room and board that predated his conviction and sentencing. The district court concluded Rowley failed to cite sufficient grounds for a hearing, and denied his petition on January 26, 2005. Rowley filed a motion for nunc pro tunc on March 16, 2005. He alleged the enactment of section 356.7 violated Article 1, section 6 of the Iowa Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. The district court denied the motion, citing insufficient grounds for a hearing, on March 18, 2005. Rowley filed a motion to reconsider on March 28, 2005. That motion was also denied on March 29, 2005. Rowley appeals.
II. Standard of Review
We review decisions regarding restitution for errors at law. Iowa R. App. P. 6.4; State v. Bradley, 637 N.W.2d 206, 210 (Iowa Ct.App. 2001). We only reverse if there is an abuse of discretion. Bradley, 637 N.W.2d at 210. We review any constitutional issues de novo. Id. III. Merits
Rowley raised no claims in his initial petition other than the fact his room and board fee included charges that predated his conviction; therefore, the district court properly denied his petition. Rowley is not automatically entitled to a hearing under section 910.7. State v. Blank, 570 N.W.2d 924, 927 (Iowa 1997). He had to plead sufficient facts so that, on the face of his petition, a hearing would not appear frivolous. Id. Our supreme court has already determined defendants may be charged for their room and board prior to either their guilty plea or their conviction. State v. Jackson, 601 N.W.2d 356 (Iowa 1999). The district court was not required to read any constitutional claim into Rowley's petition.
Rowley argues instead that the district court erred in refusing to review the constitutional issues raised for the first time in his subsequent motion for nunc pro tunc. He claims the district court should have treated his motion as an amendment to his initial petition. We disagree.
Rowley filed his petition under Iowa Code section 910.7, fifteen months after his conviction and sentencing. Rather than being a part of any direct appeal, his petition was civil in nature. See State v. Lessner, 626 N.W.2d 869, 871 (Iowa Ct.App. 2001) (holding petition for hearing on restitution filed more than thirty days after judgment was entered in criminal matter should be adjudicated as a separate civil proceeding); Blank, 570 N.W.2d at 926 (noting if petition is not filed within thirty days of the entry of the challenged order, the action is civil). It is thus subject to the Iowa Rules of Civil Procedure.
Under Iowa Rule of Civil Procedure 1.402(4), a party may amend a pleading any time before a responsive pleading is served. If no responsive pleading is required and the action has not been placed on the trial calendar, then the party may amend any time within twenty days after it is served. Iowa R. Civ. P. 1.402(4). Otherwise, the party may only amend by permission of the court or consent of the other party. Id. Rowley's motion for nunc pro tunc came more than forty days after his initial petition, and after the district court's order denying his petition. We therefore cannot consider it an amendment to the petition.
We also note Rowley first raised the constitutional issues in his motion for nunc pro tunc. "Nunc pro tunc" means literally "now for then." Black's Law Dictionary 1100 (8th ed. 2004). A nunc pro tunc order is a retrospective order issued by the court to "correct obvious errors or to make an order conform to the judge's original intent." Freeman v. Ernst Young, 541 N.W.2d 890, 893 (Iowa 1995). However, "we treat a motion by its contents, not its caption." Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002). Because Rowley is a pro se litigant, we also must give his pleadings a liberal construction. Munz v. State, 382 N.W.2d 693, 697 (Iowa Ct.App. 1985). The best our rules allow is to consider Rowley's motion as a motion to enlarge under rule 1.904(2). A motion under rule 1.904(2), however, must be filed within ten days after the order is filed. See Iowa R. Civ. P. 1.904(2) and 1.1007. Rowley's motion was filed more than forty days after the order denying his petition was filed. We therefore cannot consider his motion filed on March 16, 2005.
Even if Rowley had correctly filed a motion to enlarge pursuant to rule 1.904(2), we would be unable to review his constitutional claims. "A party challenging a statute on constitutional grounds must do so at the earliest available time in the progress of the case." State v. McCright, 569 N.W.2d 603, 607 (1997). Claims cannot be raised for the first time in a rule 1.904(2) motion. See Meier, 641 N.W.2d at 540 (noting the purpose of a rule 1.904(2) motion is for a party to appeal an issue presented to, but not decided by the district court). Because the district court would have been unable to review Rowley's constitutional claims, neither can we. McCright, 569 N.W.2d at 607.
AFFIRMED.