State of Iowa v. Dale Robert Tournier

• Court: Supreme Court of Iowa
• Decided: April 26, 2019
• Docket: 17-1697
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 17–1697

Filed April 26, 2019

STATE OF IOWA,

Appellee,

vs.

DALE ROBERT TOURNIER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Bremer County,

Christopher C. Foy, Judge.

A defendant appeals the judgment and sentence imposed following

his conviction for second-degree sexual abuse of a child under the age of

twelve. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; JUDGMENT OF CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND CASE REMANDED.

Mark C. Smith, State Appellate Defender (until withdrawal), and

Brenda J. Gohr, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, and Kasey E. Wadding, County Attorney, for appellee. 2

PER CURIAM.

A judge convicted Dale Robert Tournier of second-degree sexual

abuse of a child under the age of twelve. On appeal, Tournier argues (1)

the district court abused its discretion in declining to grant him a new trial

and in refusing to set aside the finding of guilt and receive further

testimony and (2) the district court erred in imposing the jail fee without

first determining the amount of the fee.

We transferred the case to the court of appeals. The court of appeals

affirmed Tournier’s conviction. The court of appeals vacated that part of

the sentence dealing with restitution and remanded the case for entry of a

corrected sentencing order. Tournier asked for further review, which we

granted.

On further review, we choose to let the court of appeals decision

stand as our final decision regarding the district court’s rulings declining

to grant him a new trial and in refusing to set aside the finding of guilt and

receive further testimony. See State v. Baker, ___ N.W.2d ___, ___ (Iowa

2019) (“On further review, we have the discretion to review all or some of

the issues raised on appeal or in the application for further review.”

(quoting State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012))). Therefore, we

affirm Tournier’s conviction.

As to Tournier’s argument that the district court erred in ordering

him to pay restitution without first determining his reasonable ability to

pay those fees, we find the restitution part of his sentence should be

vacated. In State v. Albright, ___ N.W.2d ____ (Iowa 2019), filed after the

court of appeals decision in this case, we set forth the procedure to follow

when determining the restitution obligation of a defendant. There we held

that certain items of restitution are subject to a reasonable-ability-to-pay

determination. Id. at ____; see also Iowa Code § 910.2(1) (2019). We also 3

clarified that a plan of restitution is not complete until the sentencing

court issues the final restitution order. Albright, ___ N.W.2d at ___.

Finally, we emphasized that a final restitution order must take into

account the offender’s reasonable ability to pay certain items of restitution.

Id.

Here, the district court did not have the benefit of the procedures

outlined in Albright when it entered its order regarding restitution.

Accordingly, we must vacate that part of the sentencing order regarding

restitution and remand the case back to the district court to impose

restitution consistent with our decision in Albright.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; JUDGMENT OF CONVICTION AFFIRMED,

SENTENCE VACATED IN PART, AND CASE REMANDED.

All justices concur except McDonald, J., who takes no part.

This opinion shall not be published.