State of Iowa v. Tavish Coleon Shackford

IN THE SUPREME COURT OF IOWA
No. 18–1215
Submitted September 16, 2020—Filed December 18, 2020
STATE OF IOWA,
Appellee,
vs.
TAVISH COLEON SHACKFORD,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Scott D.
Rosenberg, Judge.
The defendant requests further review of a court of appeals decision
affirming his resentencing without eliminating the jail fees relating solely
to the count on which the defendant was acquitted on appeal. DECISION
OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;
DISTRICT COURT ORDER REVERSED IN PART AND REMANDED.
McDermott, J., delivered the opinion of the court, in which
Christensen, C.J., and Appel, Waterman, and Mansfield, JJ., joined.
McDonald, J., filed a dissenting opinion in which Oxley, J., joined.
Martha J. Lucey, State Appellant Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
2
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, John P. Sarcone, County Attorney, and Olu Salami,
Assistant County Attorney, for appellee.
3
McDERMOTT, Justice.
A jury found Tavish Shackford guilty of two crimes. The second
crime was a “forcible felony,” which made Shackford ineligible to post bond
and remain free until his sentence began. Iowa Code §§ 702.11(1),
811.1(1) (2015). With no opportunity to bond out after the trial, as he’d
been able to do before the trial, Shackford was taken into custody and
confined to the county jail for eighty-four days until his sentencing. Under
Iowa law, the sheriff or the county may file “a reimbursement claim” for
jail fees against a defendant who has been “convicted of a criminal offense.”
Iowa Code § 356.7(1), (2). The sheriff followed that procedure in this case.
The sheriff did not opt to have the jail fees included in restitution, as the
pre-2020 version of section 356.7 permitted, but instead to have “the force
and effect of a [civil] judgment for purposes of enforcement.” Id. § 356.7(3).
But Shackford appealed the convictions, and the court of appeals
reversed his forcible felony conviction for insufficient evidence. Shackford
went back to the district court for resentencing on the lone remaining
conviction. The district court revised Shackford’s prison sentence, but
didn’t do anything about the jail fees that resulted only from the dismissed
conviction. Shackford appealed his sentence, primarily arguing he
shouldn’t have to pay the fees attributable to the dismissed charge. The
court of appeals affirmed the district court’s judgment. We granted further
review.
I. Factual and Procedural Background.
The State initially charged Shackford with willful injury causing
serious injury, Iowa Code section 708.4(1), a class “C” felony (count I), and
intimidation with a dangerous weapon, section 708.6, also a class “C”
felony (count II). The State later added a dangerous weapon enhancement
4
under section 902.7. When first arrested, Shackford spent two days in the
county jail before being released on bond until his trial.
At the January 2017 trial, as to count I, the jury found him guilty of
a lesser included offense to the willful injury charge, entering a verdict
under section 708.4(2) (a class “D” felony) instead of section 708.4(1). As
to count II, the jury found him guilty of the charged crime, intimidation
with a dangerous weapon with intent. The verdict under count II meant
Shackford had committed a “forcible felony” under section 702.11(1),
making him ineligible for continued release on bond until his sentencing
under section 811.1(1). So to the county jail he went until his sentencing.
In April 2017, the district court sentenced Shackford to an
indeterminate five-year term of incarceration under count I and to a
concurrent indeterminate ten-year term of incarceration under count II,
but with a required five-year term before he would be eligible for parole
because of the weapons enhancement under count II. See Iowa Code
§ 902.7. The district court imposed, but then suspended, a $1000 fine on
each count and found him lacking a reasonable ability to pay fees for his
appointed attorney. The district court also ordered as to each count I and
count II, “Court costs are taxed to Defendant.” No amount was stated in
the order.
Shackford filed a notice of appeal contesting his convictions. He was
transferred from the county jail to a state prison shortly after his
sentencing. He’d spent eighty-four nights in the county jail.
We transferred his appeal to the court of appeals. In the interim, in
June, the county sheriff filed in the district court two claims for
reimbursement for Shackford’s two stints in the county jail. The first one,
for fees totaling $135, assessed fees for the two days Shackford spent in
jail after his initial arrest before he bonded out pretrial. The second order,
5
for fees totaling $4935, assessed the eighty-four days he spent in jail
posttrial when he was ineligible to bond out because of the forcible felony
guilty verdict on count II. The district court entered separate orders in the
criminal case approving each reimbursement claim.
Nearly a year later, in April 2018, the court of appeals reversed
Shackford’s conviction as to count II for insufficient evidence. It remanded
to the district court for dismissal of count II and ordered resentencing on
the sole surviving conviction, count I.
At Shackford’s June 2018 resentencing on count I, the district court
sentenced him to an indeterminate five-year term of incarceration. It
imposed, but then suspended, a $750 fine. It again found him lacking a
reasonable ability to pay fees for his appointed attorney. As before, the
district court order stated, “Court costs are taxed to Defendant,” but the
order didn’t disclose a cost amount. The order didn’t specifically address
the fate of the jail fees. The clerk’s financial docket report, issued a month
later, still showed the $4935 in posttrial jail fees.
Shackford appealed again. He contended the district court erred in
holding him responsible for the posttrial jail fees given that he was
ultimately acquitted on the forcible felony that was the basis for his
posttrial detention. Shackford also urged on appeal that the fees and
costs—including the jail fees—were components of restitution, thus
requiring the district court to determine whether Shackford had a
reasonable ability to pay them before they could be assessed.
The court of appeals found that Shackford was entitled to a
reasonable-ability-to-pay hearing on the court costs, but not on the jail
fees, because the jail fees were not awarded as part of restitution. See
State v. Gross, 935 N.W.2d 695, 705 (Iowa 2019). The court of appeals
also found that the $4935 in posttrial jail fees were properly assessed
6
against Shackford. The court reasoned that even though Shackford was
ultimately acquitted of count II, he stood “convicted” of that count at the
time those jail fees were assessed. Thus, the court of appeals affirmed in
part and reversed and remanded in part. We granted Shackford’s
application for further review.
When we grant further review, we have discretion to let the court of
appeals decision stand on specific issues. State v. Doolin, 942 N.W.2d 500,
506-07 (Iowa 2020). We do so as to the reasonable-ability-to-pay issue.
We will thus focus on the issue of whether Shackford can be assessed
posttrial jail fees when he was acquitted of the offense that was the only
basis for his posttrial detention.
II. Jurisdiction.
Before we get to the merits, we must deal with a question of
jurisdiction. Shackford contends the appellate determination that there
was insufficient evidence on count II and his subsequent resentencing
should also result in the elimination of the jail fees attributable to count II.
The State (and the dissent) contend that we have no jurisdiction to address
those jail fees because they were the equivalent of a civil judgment and
thus not part of Shackford’s ongoing criminal appeal and criminal
resentencing.
It is true that the clerk entered the order imposing the $4935 in jail
fees under section 356.7 after his initial convictions before count II had
been dismissed. Under section 356.7(3), once the court approves a claim
for fees and costs against the defendant, the sheriff or municipality “may
choose to enforce the claim in the manner provided in chapter 626” and
the claim “shall have the force and effect of a judgment for purposes of
enforcement.” Iowa Code § 356.7(3). Can we undo the district court’s
reimbursement claim order in this appeal of Shackford’s criminal
7
sentence? The State argues we can’t because the claim for reimbursement
under section 356.7 created what amounts to a collateral civil judgment
distinct from the sentence. This makes it unlike a restitution order under
chapter 910, argues the State, and thus not subject to challenge in
Shackford’s current appeal of his criminal sentence.
As we’ve previously indicated, the jail fee award created in this case
under the pre-2020 version of section 356.7 is something of a hybrid
curiosity. See Gross, 935 N.W.2d at 704–05. It is both quasi-criminal and
quasi-civil. See id. It’s born of a criminal prosecution, and is available
only if the state secures a conviction. See Iowa Code § 356.7(1), (2).
However, when (as in this case) the sheriff doesn’t elect to include the jail
fee award in restitution, it isn’t covered by chapter 910. Instead, it “ha[s]
the force and effect of a judgment for purposes of enforcement.” Id.
§ 356.7(3). Yet, at the same time, it doesn’t appear in a separate civil
docket; rather, it remains part of the criminal case.
Moreover, nothing in pre-2020 section 356.7 indicates that the jail
fee award is untethered from the underlying convictions. See id. § 356.7.
To the contrary, section 356.7(1) expresses, twice, the notion that
reimbursement claims are permitted only when a prisoner “has been
convicted of a criminal offense.” And the jail fee award (when no separate
civil action has been filed) occurs within the criminal case, not in some
other civil case.1
1In the 2020 legislative session, the legislature amended section 356.7(4), effective
July 15, 2020, to include a provision that states, “A claim for reimbursement shall be
filed in a separate civil action rather than as a claim in the underlying criminal case.”
2020 Iowa Acts ch. 1074, § 61 (codified at Iowa Code § 356.7(4) (2020). This amendment
to the statute wasn’t in place when the sheriff filed the claims for reimbursement and the
district court entered its orders approving them, and it wasn’t in place when the district
court sentenced Shackford either time and, thus, doesn’t impact the analysis here.
Today’s decision is limited to the situation in which a jail fee award has not been included
in restitution but has been entered in the criminal case.
8
In our view, this means that when the entire criminal judgment is
vacated and the case is remanded for resentencing, as occurred here, the
district court has jurisdiction over jail fees—along with the rest of that
criminal case. Obviously, the district court cannot exceed its mandate
from the appellate court. See State v. Pearson, 876 N.W.2d 200, 204 (Iowa
2016). So the district court would not have the ability, for example, to
order a new trial on count I. But certainly, under pre-2020 law, the district
court had jurisdiction over relief entered in the criminal case associated
with the now-vacated conviction on count II. And because the district
court has jurisdiction, so do we when the resentencing is appealed.
Indeed, to rule otherwise would in effect say Shackford needed to
take a duplicative second appeal in the criminal case from the award of
jail fees back in 2017, even though he didn’t dispute the jail fees per se
and his only argument for reversing them was the identical argument he
was already raising in the main criminal appeal. That wouldn’t make
sense.
The dissent makes a lengthy jurisdictional argument about
Shackford’s appeal, neatly divided up by asterisks. But it is really just one
argument: that Shackford’s only opportunity to appeal the jail fees arose
in June 2017, and it is too late to do anything about them now on an
appeal from Shackford’s June 2018 resentencing. We have already
explained why that argument is wrong. At the resentencing, the district
court could have eliminated the jail fees; the clerk’s financial report
indicates it did not do so but instead carried them forward. Shackford’s
timely notice of appeal from the resentencing judgment therefore includes
the issue of whether the fees should have been eliminated.
Regarding the dissent, one other point is worth noting. The dissent
chastises us for not citing our own unpublished opinion in State v. Boyer,
9
No. 12–1892, 2020 WL 2108129, at *1 (Iowa Mar. 12, 2020) (per curiam),
charging us with failing to heed the advice of Blackstone and The
Federalist to honor “precedent.” But Boyer is nothing of the kind.
Unpublished opinions of this court are not precedential, see Iowa R. App.
P. 6.904(2)(c), which is why our court generally does not cite them.
Notably, the State didn’t cite Boyer. Regardless, Boyer doesn’t deal with
the present situation: an appeal after the jail fee order was entered and
after the entire case was sent back for resentencing.
III. Error Preservation.
The State also argues that Shackford, to preserve error for this
appeal, should have asked the court below at resentencing to remove the
count II jail fees. We ordinarily require parties to raise issues, and district
courts to decide them, before we’ll decide them on appeal. Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Shackford argues that the
award of posttrial jail fees amounts to an illegal sentence and that he may
challenge them for the first time on appeal. We instead conclude that
Shackford may contest the jail fees under the special circumstances of this
case.
Here, although the entire criminal judgment had been vacated and
Shackford had to be resentenced from scratch, the resentencing order
didn’t address the jail fees. It wasn’t clear the posttrial jail fees remained
an obligation of Shackford’s until a financial summary was filed on
July 16, 2018, after Shackford had filed his notice of appeal. Also, at the
time of Shackford’s resentencing, our State v. Gross decision had not yet
come out, and the status of a jail fee award under Iowa Code section
356.7(3) that is not included in restitution might not have been clear.
Under these facts, we hold Shackford wasn’t required to raise the issue at
his sentencing and may raise it now in this appeal.
10
IV. Merits.
Turning to the merits, the principal question presented is whether
the district court erred when it didn’t apportion the fees imposed under
section 356.7 between the count of conviction (count I) and the count of
acquittal (count II). Shackford urges that we find an apportionment
requirement for claim reimbursements imposed under section 356.7,
analogous to the one imposed for restitution orders under chapter 910 in
State v. Petrie, 478 N.W.2d 620 (Iowa 1991) (per curiam), and State v.
McMurry, 925 N.W.2d 592 (Iowa 2019).
In State v. Petrie, we held a restitution order could only direct the
defendant to pay fees and costs associated with the counts on which the
State secured a conviction and couldn’t impose fees and costs associated
with dismissed counts. 478 N.W.2d at 622. When costs and fees ordered
as restitution weren’t clearly associated with any single charge, we
required them to be assessed proportionately. Id.
In State v. McMurry, we qualified our holding in Petrie as to the costs
that weren’t clearly attributable to a particular count of conviction or
dismissal. 925 N.W.2d at 599–600. When a cost would have been
incurred even if the dismissed count or counts had not been part of the
case, the entire cost may be charged to the defendant. Id. Shackford
initially argued on appeal that his court costs should have been reduced
by fifty percent after he was acquitted on appeal on count II, but he
abandoned that argument after McMurry was decided.
The key factual difference between Petrie and this case is that in
Petrie the costs were imposed as restitution under chapter 910; but in this
case, the costs were imposed as a claim reimbursement with the effect of
a civil judgment for enforcement purposes under section 356.7. Petrie,
478 N.W.2d at 621. We’ve never previously addressed whether courts
11
must apportion fees imposed under Iowa Code section 356.7 in the same
manner as we’ve required for restitution under chapter 910.
Shackford contests, specifically, the jail fees assessed for his
detention at the county jail for the eighty-four days between his trial and
his transfer to state prison. Shackford argues that, if it weren’t for the
count II forcible-felony conviction that eliminated his bond right, he never
would have incurred any of the $4935 in posttrial jail fees while he awaited
sentencing.
The rationale behind apportionment of costs for restitution orders
in Petrie applies just as forcefully to apportionment of costs imposed under
section 356.7. Section 356.7 includes a threshold requirement for its
application: when a prisoner “has been convicted of a criminal offense.”
Iowa Code § 356.7(1) (2018) (stated twice in subsection (1)). A nearly
identical requirement resides in section 910.2, which compels “a judgment
of conviction” in a criminal case before costs can be imposed in a
restitution order. Id. § 910.2(1)). And we find the same requirement in
section 815.13, which permits the recovery of criminal prosecution costs
from a defendant “unless the defendant is found not guilty.” Id. § 815.13.
In McMurry, we discussed how the apportionment principle
established in criminal prosecutions in Petrie had historically been a
feature of civil law. 925 N.W.2d at 596. Considering the civil judgment
characteristics of claims under Iowa Code section 356.7, apportionment
has an equal, if not stronger, rationale for application under section 356.7
than under chapter 910.
Both section 910.2 (the focus of Petrie) and section 356.7 (the focus
of this case) are silent on the issue of apportionment in multicount
prosecutions when charges end in some mixture of convictions and
dismissals. See McMurry, 925 N.W.2d at 599. Interpreting similar silences
12
on a similar issue in a similar way, we hold courts must apportion fee and
cost reimbursement claims under Iowa Code section 356.7 between those
clearly attributed to the counts of conviction and those clearly attributed
to the dismissed counts.
Because the costs for the eighty-four days are clearly attributed to
the forcible felony charge on which Shackford ultimately received an
acquittal, and clearly not attributed to the charge on which the State
proved its conviction, Shackford’s reimbursement obligation ordered
under section 356.7 must be reduced by $4935.
The court of appeals reasoned that it was sufficient that Shackford
stood “convicted” of count II at the time when the jail fees were imposed.
But the conviction was being appealed. To that extent, it wasn’t final. And
as we have already discussed, when the court of appeals vacated the
criminal judgment and remanded for resentencing, that gave the district
court jurisdiction to reconsider the jail fees in light of there no longer being
a conviction on count II.
We also believe State v. Jackson is consistent with this result. 601
N.W.2d 354 (Iowa 1999), overruled on other grounds in State v. Davis, 944
N.W.2d 641, 647 (Iowa 2020). There we held that the language in Iowa
Code section 356.7—“who has been convicted of a criminal offense”—
didn’t preclude the collection of jail fees for time spent in jail before the
defendant has been convicted, so long as the defendant is later convicted.
Id. at 356. By the same token, section 356.7 does not authorize the
collection of jail fees when the defendant is later determined not to be
convicted. For purposes of the merits determination, it’s the fact of
conviction, not the timing, that matters. Section 356.7 doesn’t permit
collection of room and board from every individual who happens to spend
time in a county jail, as if the jail were simply public housing with meals
13
provided, but rather shifts some of the costs of operating the county jail
system to convicted defendants.
V. Other Arguments.
In his application for further review, Shackford asserted a due
process violation, claiming that even the $135 in pretrial jail fees were
imposed without notice or due process. We generally will not consider
issues raised for the first time in a reply brief in an appeal, let alone in an
application for further review. See State v. Carroll, 767 N.W.2d 638, 644
(Iowa 2009). In Gross, we left these issues “to another case and another
day.” 935 N.W.2d at 704. We do so here as well. We also note that the
legislature’s 2020 amendment to Iowa Code section 356.7(4), described in
the footnote above, now requires the commencement of separate civil
actions for imposing reimbursement claims under the statute and likely
will factor into addressing future due process questions on this subject.
VI. Disposition.
For the foregoing reasons, we reverse the assessment of $4935 in
posttrial jail fees, but we otherwise direct the district court to proceed in
accordance with the decision of the court of appeals.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT ORDER REVERSED IN PART
AND REMANDED.
Christensen, C.J., and Appel, Waterman, and Mansfield, JJ., join
this opinion. McDonald, J., files a dissenting opinion in which Oxley, J.,
joins.
14
#18–1215, State v. Shackford
McDONALD, Justice (dissenting).
The majority’s cogitation on the nature of the orders approving the
sheriff’s claims for reimbursement is interesting but immaterial to the
jurisdictional question presented. Whether the orders were criminal,
quasi-criminal, civil, or quasi-civil, controlling cases hold the orders were
final orders on collateral matters that the defendant was required to
separately challenge by timely appeal. The defendant failed to do so.
Thus, this court lacks jurisdiction over the defendant’s appeal, and I would
dismiss the defendant’s appeal for want of jurisdiction. See Walles v. Int’l
Brotherhood of Elec. Workers, 252 N.W.2d 701, 710 (Iowa 1977) (quoting
Carmichael v. Iowa State Highway Comm’n, 156 N.W.2d 332, 340 (Iowa
1968)) (stating the court “has inherent power to determine whether it has
jurisdiction over the subject matter of the proceedings before it” and can
raise the issue “on its own motion”).
*****
I begin with the relevant inquiry regarding the nature of the orders
approving the sheriff’s claims for reimbursement. In State v. Gross, 935
N.W.2d 695, 699 (Iowa 2019), and State v. Abrahamson, 696 N.W.2d 589,
591 (Iowa 2005), we explained jail fees are governed by Iowa Code section
356.7. “Under section 356.7(3), a court-approved claim for room and
board may be enforced in two ways: as a judgment in the traditional sense,
under Iowa Code chapter 626, or as part of a restitution plan under
chapter 910.” Gross, 935 N.W.2d at 702 (quoting Abrahamson, 696
N.W.2d at 591). The statute provided a sheriff with authority to elect the
classification of the claim. A sheriff who sought to collect a claim as
criminal restitution as part of the defendant’s sentence must have
explicitly made the election in the claim for reimbursement. See
15
Abrahamson, 696 N.W.2d at 591. If the sheriff did not affirmatively elect
to collect a claim as criminal restitution as part of the defendant’s
sentence, as is the case here, then the order approving the claim was
classified as “an order with the effect of a civil judgment and not a criminal
restitution order.” Gross, 935 N.W.2d at 704 (emphasis added). In either
case, an order approving a sheriff’s claims for reimbursement is a final
order on a collateral matter. See, e.g., State v. Valin, 724 N.W.2d 440, 442
n.1 (Iowa 2006) (“An example of a collateral matter as to which a trial court
retains jurisdiction is the modification of an order for restitution in a
criminal case.” (quoting State v. Mallet, 677 N.W.2d 775, 777 (Iowa
2004))); State v. Lessner, 626 N.W.2d 869, 871 (Iowa Ct. App. 2001)
(explaining matters entered after judgment and sentence are collateral).
The general rule is that a defendant must separately appeal a final
order on a collateral matter. See State v. Formaro, 638 N.W.2d 720, 727
(Iowa 2002) (“[W]e recognize that rulings on collateral or independent
issues after final judgment are separately appealable as final judgments.
. . . A defendant cannot rely upon the notice of appeal from the judgment
and sentence of the district court.”) (citation omitted)); Bd. of Water Works
Trs. v. City of Des Moines, 469 N.W.2d 700, 702 (Iowa 1991) (“Rulings
deciding collateral and independent claims are separately
appealable . . . .”); Lessner, 626 N.W.2d at 871 (explaining orders
regarding collateral matters must be separately appealed).
The “failure to file a separate notice of appeal” on a collateral matter
“precludes our appellate review.” Den Hartog v. City of Waterloo, 926
N.W.2d 764, 773 (Iowa 2019). See Iowa State Bank & Tr. Co. v. Michel,
683 N.W.2d 95, 111 (“The defendants failed to file a separate notice of
appeal from the district court’s post-judgment and post-appeal ruling on
16
the bank’s motion for attorney fees. Therefore, that issue is not before
us.”).
With that understanding, it is apparent this court lacks jurisdiction
over the orders approving the sheriff’s claims for reimbursement.
*****
Shackford’s notice of appeal is facially insufficient to invoke
jurisdiction over the district court’s orders approving the sheriff’s claims
for reimbursement. “[N]otices of appeal are to be given a liberal
construction.” Iowa Dep’t of Hum. Servs. ex rel. Greenhaw v. Stewart, 579
N.W.2d 321, 323 (Iowa 1998). Here, Shackford’s notice of appeal stated
Shackford appeals “from the Judgment and sentence entered on the 29
day of June, 2018, by the Honorable Scott D. Rosenberg, Judge of the
District Court.” The notice of appeal makes no reference to the collateral
orders approving the sheriff’s claims entered June 7 and 8, 2017, which
were entered by Judge Robert J. Blink. Even under a liberal rule of
construction, Shackford’s notice of appeal is facially insufficient to invoke
this court’s appellate jurisdiction over the collateral civil orders approving
the sheriff’s claims entered in June 2017.
We decided this exact issue earlier this year in the indistinguishable
case of State v. Boyer, No. 18–1892, 2020 WL 2108129, at *2 (Iowa Mar.
12, 2020) (per curiam). There, “[t]he notice of appeal stated that Boyer
was appealing the ‘final judgment & sentence entered in these matters on
the 24th day of September, 2018.’ ” Id. at *1. Boyer’s entire argument
was a challenge, however, to the district court’s collateral order entered on
a different date that approved the sheriff’s claims for reimbursement. See
id. We noted that notices of appeal are to receive a liberal construction.
See id. at *2. We concluded that even under a liberal rule of construction,
“[w]hen a party, even a pro se party, files a notice of appeal related to a
17
specific order, we cannot rewrite it to include an order entered” on a
different date. Id. We concluded we lacked jurisdiction to consider
challenges to the order approving the sheriff’s claim for reimbursement,
and we dismissed the appeal. See id.
Although Boyer is directly on point, the majority distinguishes it
because it is unpublished. However, it is not relevant whether the opinion
is published or unpublished; the opinion is a decision of this court and is
authority, even if not controlling authority. The mere fact that the opinion
is unpublished does not give this court license to disregard its own work.
The majority’s disposition is contrary to a basic principle of the rule of
law—courts “treat like cases alike.” June Med. Servs. L.L.C. v. Russo, ___
U.S. ____, ____, 140 S. Ct. 2103, 2134 (2020) (Roberts, C.J., concurring).
It has long been “an established rule to abide by former
precedents, where the same points come again in litigation; as
well to keep the scale of justice even and steady, and not liable
to waver with every new judge’s opinion.”
Id. at ___, 132 S. Ct. at 2134 (quoting 1 William Blackstone, Commentaries
on the Laws of England 69 (1765)). Following precedent “avoid[s] an
arbitrary discretion in the courts.” Id. at ___, 132 S. Ct. at 2134 (quoting
The Federalist No. 78, at 529 (Alexander Hamilton) (J. Cooke ed., 1961)). I
cannot join the majority’s resolution of the jurisdictional issue when a
unanimous court reached the exact opposite resolution eight months ago.
*****
This court also lacks jurisdiction over Shackford’s challenge to the
orders approving the sheriff’s claims because his appeal is untimely. “A
notice of appeal must be filed within 30 days after the filing of the final
order or judgment.” Iowa R. App. P. 6.101(1)(b). “The rules governing the
‘time for appeal are mandatory and jurisdictional.’ ” Concerned Citizens of
Se. Polk Sch. Dist. v. City Dev. Bd., 872 N.W.2d 399, 402 (Iowa 2015)
18
(quoting Root v. Toney, 841 N.W.2d 83, 87 (Iowa 2013)). If a party does
not timely file his or her notice of appeal, the court has no jurisdiction over
the appeal and the matter must be dismissed. See id.
State v. Olsen, 794 N.W.2d 285 (Iowa 2011), is instructive. In that
case, the defendant was charged with domestic abuse. See id. at 286. A
jury acquitted Olsen, and judgment was entered in January 2009. See id.
In February and March of the same year, the district court entered two
orders taxing Olsen with fees and costs. See id. Three months later, Olsen
filed a motion to challenge the costs orders, which the district court denied
as untimely. See id. The defendant appealed from the denial of his motion
challenging the cost orders. See id. We concluded we lacked jurisdiction
to review the cost orders. See id. at 289. We explained “Olsen had thirty
days to file a notice of appeal once the February 3 and March 24 orders
became final. Olson elected not to do so . . . .” Id. (citation omitted). We
explained Olsen’s untimely motion did not “resurrect the district court’s
jurisdiction in the matter.” Id. Thus, the district court and this court
lacked jurisdiction to disturb the final cost orders. See id. (“Accordingly,
because Olsen failed to file a timely notice of appeal once the February 3
and March 24 orders became final, this court lacks appellate jurisdiction
to entertain the merits of the February 3, March 24, or July 22
judgments.”).
Similar to Olsen, Shackford did not timely file his notice of appeal
from the collateral orders approving the sheriff’s claims for
reimbursement. On June 7 and 8, 2017, the Polk County Sheriff filed two
claims for reimbursement pursuant to section 356.7 in the amounts of
$135 and $4935, respectively. On the same days, the district court
entered orders approving the sheriff’s claim for reimbursement in the
requested amounts. To appeal those orders, Shackford was required to
19
file his notices of appeal by July 7 and 8, 2017. He did not file any notices
of appeal within the required time. Instead, he filed a single notice of
appeal on July 12, 2018, more than one year beyond the jurisdictional
deadline. As in Olsen, this court thus lacks jurisdiction over Shackford’s
challenge to the district court’s orders approving the sheriff’s claims for
reimbursement and must dismiss the same. See id.
*****
Shackford failed to timely challenge the collateral orders approving
the sheriff’s claims for reimbursement, and this court lacks jurisdiction to
correct his failure. The orders approving the sheriff’s claims for
reimbursement were entered after the original judgment and were
collateral and separately appealable. Shackford, who knew he was
challenging the underlying convictions on appeal, could have separately
appealed those collateral orders, but he failed to do so. He also failed to
avail himself of the opportunity to vacate the orders approving the sheriff’s
claims for reimbursement. The orders approving the sheriff’s claims for
reimbursement were entered in June 2017. Shackford’s conviction was
vacated in April 2018. At that point, Shackford could have timely
petitioned to vacate the orders pursuant to Iowa Rules of Civil Procedure
1.1012 and 1.1013, but he failed to do so. In the absence of a timely
appeal or timely petition to vacate the orders approving the sheriff’s claims
for reimbursement, this court lacks jurisdiction to disturb the same.2
Oxley, J., joins this dissent.
2This is not to say Shackford has no potential avenue for relief. Iowa Rule of Civil
Procedure 1.1016 provides a party or interested person may seek to discharge a judgment
where a matter “has arisen since its entry.” The rule is not “concerned with the
impropriety of the judgment as an original proposition. . . . [T]his rule deals only with
matters which may later have discharged it.” Id. r. 1.1016 official cmt.